Preferred Risk Mutual Insurance v. Mission Insurance
Preferred Risk Mutual Insurance v. Mission Insurance
Opinion of the Court
This is an action by one insurance company, to compel another company to make a pro rata reimbursement to plaintiff for paying off an entire automobile collision loss. Plaintiff alleged that both companies had issued policies which covered the loss. The matter was tried on stipulated facts by the court without a jury and judgment was entered for defendant. Plaintiff appealed.
An automobile owned by Flora Krause was damaged in a collision while being operated by Ruby David with Krause’s permission. At the time of the accident, a policy issued by plaintiff to Krause was in effect, containing collision coverage of Krause’s automobile. Plaintiff paid Krause the loss and then brought this action against defendant, claiming that because defendant had issued a policy to David which also covered the loss, plaintiff was entitled to contribution from defendant under the rule of Lamb-Weston v. Ore. Auto. Ins. Co., 219 Or 110, 341 P2d 110, 346 P2d 643, 76 ALR2d 485 (1959).
Plaintiff’s policy contained the following provisions :
“COVERAGE E — Collision:
“(a) to pay for loss caused by collision to the owned automobile * * *.
"* * * * *.
*578 “Other Insurance. If the insured has other insurance against a loss covered by Part III of this policy [which part contains collision coverage], the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability of this policy bears to the total applicable limit of liability of all valid and collectible insurance against such loss; * * *."
Defendant’s policy contained the following provisions :
“COVEBAGE E- — Collision or Upset: To pay for direct and accidental loss of or damage to the automobile [David’s vehicle described in the policy], hereinafter called loss, caused by collision of the automobile with another object or by upset of the automobile, * * *.
"* * * * *.
“V. Use of Other Automobiles: If the named insured * * * owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy under coverages * * * E [collision] with respect to said private passenger automobile applies with respect to any other private passenger automobile, provided the actual use thereof is with the permission of the owner, subject to the following provisions:
“(d) This insuring agreement does not apply:
“(4) Under coverage E [collision], to any loss when there is any other insurance which would apply thereto in the absence of this insuring agreement, whether such other insurance covers the interest of * * * the owner of the automobile or * * *." (Emphasis ours.)
Plaintiff’s insured Krause owned the automobile which was damaged and she suffered the loss. The stipulated facts do not show any loss to David; she
It is unreasonable to conclude, as defendant argues, that defendant’s policy was intended to give coverage only to its insured’s interest in the vehicle. Rather, we conclude that, in the absence of other insurance, defendant and David intended that anyone in Krause’s position would be a third-party beneficiary of their contract of insurance.
It would appear that the reason for including this provision in the potential vehicle borrower’s policy is to enable the borrower of a vehicle to secure coverage for the lender’s interest. In this fashion, the borrower avoids embarrassment of (1) a loss for the lender while the vehicle is in the borrower’s custody, and (2) a dispute with the lender over responsibility for the loss. It might be argued that the provision is to cover only the borrower’s liability to the lender, where the loss was incurred under circumstances which would make the borrower responsible to the lender for the loss, but that would constitute liability coverage which is normally provided by a different portion of the policy.
Because the insuring agreements of both policies, in the absence of other insurance, covered Krause’s loss, we have a typical Lamb-Weston situation where each insurer attempts to limit or to exclude its coverage where other coverage exists. Plaintiff attempts to limit its coverage to a pro rata share, and defendant attempts to escape all coverage. We have
The judgment of the trial court is reversed and the case is remanded for entry of a judgment in conformance with this opinion.
The ease of Firemen’s Ins. v. Motors Ins., 245 Or 601, 423 P2d 754 (1967) was a factual situation identical to that in the present case except for the provisions of the driver’s policy. Those provisions were not fully disclosed by the record. After considering those provisions which the record did disclose, the court concluded there was an insufficient indication that it was the intention of the parties that the insuring provision was for the benefit of the third-party owner of the damaged vehicle. The court does not consider that it is bound by the decision in that case because of the limited and different policy provisions which were the basis for it. Defendant has not contended that the case is authority for its position here.
Reference
- Full Case Name
- PREFERRED RISK MUTUAL INSURANCE COMPANY v. MISSION INSURANCE COMPANY
- Status
- Published