(concurring). I concur in the result reached at Special Term (Carlino v Lumbermens Mut. Cas. Co., 136 Misc 2d 130). The majority finding that the policies were not written to circumvent the holding in Lumbermens Mut. Cas. Co. v Allstate Ins. Co. (51 NY2d 651) is correct. However, I cannot concur with the majority finding that the "two or more auto policies” clause is not in violation of the insurance regulations authorized by the Vehicle and Traffic Law.
In New York, the term "owner’s policy of liability insurance” shall mean a policy "(a) Affording coverage as defined in the minimum provisions prescribed in a regulation which shall be promulgated by the superintendent” (Vehicle and Traffic Law § 311 [4] [a]). In accordance with this statute, 11 NYCRR 60.1 (g) was adopted, which requires that 1 of 2 clauses be included in all insurance policies.
"(1) The insurer shall not be liable for a greater proportion of the loss than the applicable limit of liability of the policy bears to the total applicable limit of liability of all other valid and collectible insurance covering the insured against such loss; provided, however, with respect to an automobile, other than a newly acquired automobile, for which insurance is provided under subdivision (d) of this section, the insurance shall be excess insurance over any other valid and collectible insurance.
"(2) The insurance afforded by this policy is primary insurance, except when stated to apply in excess of or contingent upon the absence of other insurance. When this insurance is primary and the insured has other insurance which is stated to be applicable to the loss on an excess or contingent basis, the amount of the company’s liability under this policy shall not be reduced by the existence of such other insurance. When both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent, the company shall not be liable under this policy for a greater proportion of the loss than that stated in the applicable contribution provision.”
If one of these provisions is not included, then coverage "provisions which are equally or more favorable to the in*291sured” can be added (11 NYCRR 60.1; emphasis added). Therefore, the minimum requirement is that an insurance company pay its prorated share of the loss when two or more policies cover the same accident on the same basis. Where the insurance company adds provisions, they cannot usurp this minimum coverage provision and be less favorable to the insured. In my view, the regulation can be read to ensure that the insured will not purchase more than one policy from the same insurer and then find himself duped when the company refuses to pay on each policy.
In this case, it is clear that if the insurance agent for Wesley Carr’s parents had obtained separate policies for them with different carriers, plaintiffs would be entitled to full pro rata excess coverage under each policy.
The record reveals that Rose Carr owned a car and her husband James owned a pickup truck. They had these vehicles insured under a combined family policy. Rose Carr was dissatisfied with this arrangement as she felt that her insurance was at risk because of her husband’s personal habits. Thus, she asked their insurance agent to issue separate policies on each vehicle. The subject policies were then issued and a full premium was paid for each policy. When the majority state that "[h]ad James Carr disclosed the existence of his wife’s policy when he applied for insurance, a discount would have been applied”, they disregard the express intent of the insured. It was the agent for Lumbermens who wrote each policy to accomplish the insureds’ request for separate coverage. Regarding each policy, the insured paid valuable additional consideration for separate coverage. Thus, separate premiums for multiple vehicles recognizes the increased risk being insured against. Furthermore, not to allow stacking in this situation is unjust enrichment for the insurer or loss of consideration for one of the Carrs (see, Di Stasi v Nationwide Mut. Ins. Co., 132 AD2d 305, 309).
These policies are, under the circumstances of this case, excess insurance over any other valid insurance. For the majority to deny the coverage contracted for by invoking the "spousal” exclusion, is contrary to the intent of the insureds when they purchased additional coverage. Since the regulations were adopted to ensure adequate coverage when separate coverage has been contracted and paid for and the "two or more auto policies” clause violates the mandate of the minimum contract provisions outlined in the regulations (Veh*292icle and Traffic Law § 311 [4]; 11 NYCRR 60.1 [g]), the order of Special Term should be affirmed.
Denman, Boomer and Davis, JJ., concur with Balio, J.; Callahan, J. P., dissents and votes to affirm, in an opinion.
Judgment reversed, on the law, without costs, and judgment granted, in accordance with an opinion by Balio, J.