I agree with the majority that a declaration should be made that Public must defend and indemnify the plaintiffs in the wrongful death action. However, I believe that the contribution between the two insurers should be upon a pro rata basis.
Where the provisions of a policy are clear and unambiguous, they must be given their plain and ordinary meaning. The courts should refrain from rewriting such an agreement (Government Employees Ins. Co. v Kligler, 42 NY2d 863, 864; see, generally, 29 NY Jur, Insurance, §§ 597-598). The “mirroring” language under discussion is quite clear and unambiguous. That language does not express a “preference” by either insurer as to whether contribution should be by (i) equal shares or (ii) pro rata. The “mirroring” language simply provides for two possible contingencies. Paragraph 6(a) of each policy provides for contribu*74tion by equal shares if other insurance provides for contribution by equal shares. Paragraph 6(b) provides that contribution will be pro rata if the other insurance does not provide for contribution by equal shares.
This identical issue was considered in a recent opinion of Justice Shapiro. In analyzing this same “mirroring” language, Justice Shapiro reasoned as follows (Eagle Star Ins. Co. v General Acc. Fire & Life Ins. Co., 100 Misc 2d 792, 794): “It is essentially conceded that neither policy contains a provision calling for contribution by equal shares. That being so, it would appear that paragraph 6(b) of the policies, dictating that the loss be prorated, would govern rather than 6(a) which would mandate an- equal participation”.
Justice Shapiro had followed the reasoning of the majority in Georgia Cas. & Sur. Co. v Universal Underwriters Ins. Co. (534 F2d 1108). In pertinent part, the majority in Georgia Cas. reasoned as follows (at p 1111): “The remaining question is whether Paragraph 6(a) or Paragraph 6(b) of ‘Conditions’ is applicable to this case. The policies have the same pertinent provisions as to ‘Other Insurance’. If either insurance policy provides for contribution by equal shares, then both so provide. Likewise, if either of the policies provides for pro rata contributions, then both so provide. Both policies containing the identical provision do not provide either for pro rata contribution or for contribution by equal shares. Each depends upon the other policy to provide validity and meaning to one or the other of the subparagraphs of Condition 6. This Court, therefore, is of the opinion that the condition of 6(a), ‘If all of such other valid * * * insurance provides for contribution by equal shares,’ has not been met and that the condition of 6(b), ‘If any of such insurance does not provide for contribution by equal shares,’ has been met and that, therefore, each policy provides that the company shall not be liable for a greater proportion of such loss than the applicable limit of liability under the policy bears to the total applicable limit of liability of all valid and collectible insurance against such loss”.
I would agree with the majority herein that the Fifth Circuit, sub silentio, overruled its opinion in Georgia Cas. *75in McDaniels v Great Atlantic & Pacific Tea Co. (602 F2d 78). As the majority notes, the Bench in McDaniels states that both policies therein provide for contribution by equal shares. That Bench makes no attempt to analyze the “mirroring” language under discussion. Without explanation or elaboration, it summarily reaches the legal conclusion that contribution should be by equal shares. With due respect to that Bench, its determination on this point would seem to be a “bootstrap operation”.
Another Bench in the Fifth Circuit subsequently reached the same conclusion on this point in Employers Cas. Co. v Employers Commercial Union Ins. Co. (632 F2d 1215). The Bench in Employers stated (p 1220) that “both policies show a preference for contribution by equal shares”. Again, the Bench in Employers does not explain how the insurers expressed a “preference” by merely providing for two contingencies in their policies.
The Fifth Circuit’s decision in McDaniels (supra) was also followed in Ryder Truck Rental v United States Fid. & Guar. Co. (527 F Supp 666). Again, the decision in Ryder is noteworthy insofar as it reaches the identical legal conclusion on this subject without analyzing the “mirroring” language in the policies (at p 670): “Because both policies furnish primary coverage, subdivision (a) applies, and each insurer must contribute toward the settlement expenses in equal shares until the share of each insurer equals the lowest applicable limit of liability under any one policy or the full amount of the loss is paid. See Blue Bird Body Co. v. Ryder Truck Rental, supra at 727; McDaniels v. Great Atlantic & Pac. Tea Co., 602 F2d 78, 83 (5th Cir. 1979); Commercial U. Assur. v. Aetna Cas. & Sur. Co., 455 F Supp. 1190, 1194-1195 (D.N.H. 1978)”.
The District Court in Commercial Union Assur. Cos. v Aetna Cas. & Sur. Co. (455 F Supp 1190) made no attempt to dissect the “mirroring” language. Without addressing the language in the policies, the District Court concluded (at p 1195): “Inasmuch as both policies furnish primary coverage, the second paragraph of the condition above outlined provides for contribution by equal shares”.
Argonaut Ins. Co. v Cotton States Mut. Ins. Co. (373 F Supp 817), also cited by the majority, is of dubious prece*76dential value. In finding that there should be contribution by equal shares, the District Court stated (at pp 820-821): “The policies then provide that if the other insurance provides for contribution by equal shares (which is the case here) then the Company would not be liable for a greater proportion of the loss than would be payable if each insurer contributed an equal share”. It is not clear from the decision in Argonaut whether the policies contained separate provisions requiring contributions in equal shares. Even if it were assumed that the policies did not contain separate provisions requiring contribution in equal shares, but simply contained the “mirroring” language under discussion, there is no explanation presented for the District Court’s determination. To repeat the obvious, the District Court presents a legal conclusion without setting forth its rationale therefor.
Veillon v Southern Farm Bur. (254 So 2d 130), still another decision cited by the majority, involved three policies. Two of the policies contained the “mirroring” language now in dispute; the third policy provided for pro rata contribution. The Court of Appeal of Louisiana employed the same reasoning of Justice Shapiro in Eagle Star (supra) and the majority in Georgia Cas. (supra). To the extent here relevant, the Court of Appeal of Louisiana found (254 So 2d, at p 136): “We find merit, however, in Hardware Mutual’s alternate argument that the trial judge erred in his distribution of the liability as between the three insurance companies. As hereinbefore stated, the trial judge condemned Southern Farm Bureau and Hardware Mutual to contribute in equal shares, yet the clauses from their policies quoted above clearly state that they will do so only if all insurers concerned are bound by their policies to do likewise. If such is not the case, by the terms of both policies, the contribution of each insurer is to be on a pro rata basis in proportion to the applicable policy limits. Clearly, the clause quoted from the Fireman’s Fund policy does not provide for contribution by equal shares but rather limits such contribution to a pro rata basis, and when taken together with the clauses from the other two policies produces the end result that contribution by all three insurers must be on a pro rata basis”. There is no *77reason to believe that the Court of Appeal in Veillon would have reached a different result if the three policies contained “mirroring” language.
The majority in this proceeding is apparently dissatisfied with the result to be achieved if literal effect is given to the “mirroring” language. For reasons or policies not expressed, the majority would rewrite the policies to achieve its conception of an equitable result in this case. As was previously mentioned, the courts are prohibited from doing so (Weinberg & Holman v Providence Wash. Ins. Co., 254 NY 387, 391). McDaniels (supra) and the other opinions cited in the majority opinion opt for contribution by equal shares but they provide no legal analysis for that selection.
Accordingly, contribution should be made on a pro rata basis.
Kupferman, Sandler, Ross and Silverman, JJ., concur; Murphy, P. J., dissents in part in a separate opinion.
Order, Supreme Court, New York County, entered on October 19,1983, reversed, on the law, and the motion and cross motion are granted to the extent of declaring that (i) Public Service Mutual Insurance Company must defend and indemnify the plaintiffs in the wrongful death action, and (ii) contributions between Public and Travelers is by equal shares. Appellants shall recover of defendant-respondent $75 costs and disbursements of this appeal.