U.S. Court of Appeals for the D.C. Circuit, 1958

Employers' Liability Assurance Corporation, Limited, a Corporation v. Fireman's Fund Insurance Group, a Corporation

U.S. Court of Appeals for the D.C. Circuit · Decided December 11, 1958 · Edgerton, Miller, Bastian

262 F.2d 239; 104 U.S. App. D.C. 350; 1958 U.S. App. LEXIS 3431 (Federal Reporter, Second Series)

Counsel

Messrs. Joseph S. McCarthy, Wilbert McInerney, Washington, D. C., and Edwin J. Bradley, Alexandria, Va., submitted on the brief for appellant. Mr. Edward C. Donahue, Washington, D. C., also entered an appearance for appellant., Messrs. Bernard J. Gallagher, Washington, D. C., and J. Roy Thompson, Jr., Washington, D. C., submitted on the brief for appellee.

Cases that cite this one

21 later published cases cite this decision. The 20 that cite it most often are listed here.

Jones v. Medox, Inc. (D.C. 1980)
Weekes v. Atlantic National Ins. (9th Cir. 1966)
Citizens Mutual Automobile Insurance Company, a Michigan Corporation v. Liberty Mutual Insurance Company, a Massachusetts Corporation (6th Cir. 1959)
Jones v. Medox, Inc. (D.C. 1981)
State Farm Mutual Automobile Insurance Company v. United States Fidelity And Guaranty Company (4th Cir. 1974)
State Farm Mutual Automobile Ins. v. United States Fidelity & Guaranty Co. (4th Cir. 1974)
Torruellas v. Hartford Accident & Indemnity Co. (District Court, D. Puerto Rico 1972)
Travelers Indemnity Company v. Chappell (Miss. 1971)
Allstate Insurance v. Employers' Liability Assurance Corp. (United States District Court for the Southern District of Florida 1970)
Fireman's Fund Insurance Company v. Underwriters Insurance Company (10th Cir. 1968)
International Service Insurance Co. v. Ballard (Miss. 1968)
Carolina Casualty Insurance Company v. Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Company (3d Cir. 1964)
Carolina Casualty Insurance v. Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance (3d Cir. 1964)
Carolina Casualty Insurance v. Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance (District Court, W.D. Pennsylvania 1963)
Emp'rs Reinsurance Corp. v. Mission Equities Corp. (Cal. Ct. App. 1977)
State Farm Mutual Automobile Ins. v. Home Indemnity Ins. (Ohio 1970)
Zurich Insurance v. Continental Casualty Co. (Md. 1965)
Great American Insurance v. Schaefers (New York Supreme Court 1965)
Burcham v. Farmers Insurance Exchange (Iowa 1963)
Mountain States Mutual Casualty Co. v. American Casualty Co. (Mont. 1959)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

EDGERTON, Circuit Judge.

An automobile belonging to Call Carl, Inc., which had been lent to Carl Ray Kilmer to be used as a substitute while his car was being repaired, was involved in an accident while being driven by Kil-mer. An injured person sued him and Call Carl. The present suit is between the insurers of the two defendants.

Appellee, Fireman’s Fund Insurance Group, was Kilmer’s insurer. His cov *240 erage included driving a car “temporarily used as a substitute” because of repairs etc., with a “condition” that, “the insurance with respect to temporary substitute automobiles * * * shall be excess insurance over any other valid and collectible insurance.”

Appellant, Employers’ Liability Assurance Corp., Ltd., was Call Carl’s insurer. Its policy defined “Insured” as including not only the named Insured but also “any person while using an owned automobile * * * with the permission of the named Insured * * It provided that “If other valid insurance exists protecting the Insured from liability * * * this policy shall be null and void with respect to such specific hazard otherwise covered, whether the Insured is specifically named in such other policy or not; provided, however, that if the applicable limit of liability of this policy exceeds the applicable limit of liability of such other valid insurance, then this policy shall apply as excess insurance against such hazard in an amount equal to the applicable limit of liability of this policy minus the applicable limit of liability of such other valid insurance.” (Emphasis added.)

Appellant Employers’ sued appellee Fireman’s for a declaratory judgment that appellee’s coverage was primary and appellant’s secondary. We think appellant’s coverage was primary and the District Court was right in granting appellee’s motion for summary judgment. The “excess insurance” which appellee provided with respect to “substitute” cars was excess insurance only. Where a substitute car is concerned, unless damage exceeds the dollar limit in appellant’s policy, appellee’s policy is not “other valid insurance”. Zurich General Accident & Liability Ins. Co., Ltd. v. Clamor, 7 Cir., 124 F.2d 717; Hardware Casualty Co. v. Massachusetts Bonding & Ins. Co., Sup., 129 N.Y.S.2d 304.

Affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.