410_C202
PARTIES
DISPUTE APPLYING “OTHER INSURANCE”
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Automobile |
Other Insurance |
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Uninsured Motorist |
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On November 1, 2003, Cletus
Ganschow was a passenger in a vehicle owned by Susan
Messer and driven by Samantha Kinser when the vehicle
was involved in an accident with Louis Pipito III. Pipito was allegedly negligent and was also an uninsured
motorist. Ganschow sought uninsured motorist coverage
for his injuries from his parents' insurer, Citizens Insurance Company, as well
as Messer's insurer, Standard Mutual Insurance Company.
The Standard Mutual policy
had uninsured motorist coverage limits of $100,000 per person and $300,000 per
occurrence. The Citizens policy had uninsured motorist coverage limits of
$50,000 per person and $100,000 per occurrence. Both policies contained
"other insurance" provisions. Standard Mutual's
provision stated: "With respect to bodily injury to an insured while
occupying an automobile not owned by the named insured, the insurance under
part IV shall apply only as excess insurance over any other similar insurance
available to such insured and applicable to such automobile as primary
insurance, and this insurance shall then apply only in the amount by which the
limit of liability for this coverage exceeds the applicable limit of liability
of such other insurance."
This provision went on to
state: "Except as provided in the foregoing paragraph, if the insured has
other similar insurance available to him and applicable to the accident, the
damages shall be deemed not to exceed the higher of the applicable limits of
liability of this insurance and such other insurance and the company shall not
be liable for a greater proportion of any loss to which this Coverage applies
than the limit of liability hereunder bears to the sum of the applicable limits
of liability of this insurance and such other insurance."
The Citizens Insurance
"other insurance" provision stated: "1. Any recovery for damages
for 'bodily injury' or 'property damage' sustained by an 'insured' may equal
but not exceed the higher of the applicable limit for any one vehicle under
this insurance or any other insurance. 2. Any insurance we provide with respect
to a vehicle you do not own shall be excess over any other collectible
insurance. 3. We will pay only our share of the loss. Our share is the
proportion that our limit of liability bears to the total of all applicable
limits."
Ganschow filed a complaint against both
Standard Mutual and Citizens. Conceding that because of antistacking
provisions his uninsured motorist benefits could not exceed $100,000, Ganschow claimed he was entitled to benefits under both
policies. Standard Mutual sought a declaratory judgment clarifying the
coordination of coverage between Standard Mutual and Citizens. Standard Mutual
argued that the insurers' responsibilities were to be calculated on a pro rata
basis. Citizens responded by arguing that Standard Mutual carried the primary
coverage and that Citizens carried only excess coverage.
The trial court found that
both companies provided primary coverage with respect to Ganschow's
uninsured motorist claims. It agreed with Standard Mutual and prorated the
claims. According to the court, a maximum of $66,666.67 was to be paid by
Standard Mutual, and a maximum of $33,333.33 was to be paid by Citizens.
Citizens appealed.
On appeal, Citizens
continued to claim that Standard Mutual's coverage
was primary. Standard Mutual argued that the insurers' "other
insurance" provisions conflicted and should therefore be declared
"mutually repugnant." As such, argued Standard Mutual, the provisions
should be disregarded, and the insurers should be liable for their respective
prorated amounts.
The Court of Appeals of
The judgment of the trial
court was reversed and remanded with instructions to enter judgment for
Citizens Insurance.
Citizens
Insurance Company vs. Ganschow-No. 18A02-0604-CV-312-Court of Appeals
of Indiana-January 12, 2007-859 North Eastern Reporter 2d 786