(concurring in part, dissenting in part).
I concur in the holding that The Home Indemnity Company is the primary insurer but am unable to agree that Liberty Mutual Insurance Company is also a primary insurer.
An additional word in regard to the facts is in order.
*861Shaw and Sons Equipment Rental, Inc., the owner of the truck, entered into a written lease or agreement on July 25, 1959, under which the truck involved in the collision was leased to J. W. Bateson Company, Inc. for an unspecified period of time. Bateson agreed to assume all risks of injury or damage for any cause to persons or property and save harmless Shaw and Sons from all claims and suits on account of such injury or damage. The Liberty policy of insurance was issued as of December 16, 1958. The date of issuance of the Home policy is not apparent from the record.
After stating that the “main issue * * * involves the question of who is the primary insurer and who is the secondary insurer,” the District Court, on the basis of the hold harmless agreement, concluded and held that the Liberty policy affords primary coverage and the coverage provided by the Home policy is excess to the Liberty policy.
As the majority opinion points out, Liberty’s policy was issued to Bateson, possessor of the truck under the rental agreement, whereas the Home policy was issued to Shaw and Sons, the owner of the truck. Under the “other insurance” clauses which are identical in substance, it is abundantly clear that the Home policy, having been issued to the owner, provides primary coverage. Having properly reached this conclusion, the majority then attempts to demonstrate that Liberty is also a primary insurer. In so doing, the Court fell into the same error which motivated the District Court’s ultimate judgment, i. e., resort was had to the hold harmless provision of the leasing agreement. I do not believe this indemnity -provision has any place in this lawsuit. In my view, the obligation created by this provision was personal to Bateson. Neither Liberty nor Home was a party to that agreement; -in fact, the Liberty policy was issued more than six -months before the leasing agreement was executed.
The simple question here is one of interpretation of the policy provisions in light of the undisputed facts. There is nothing ambiguous about the applicable provisions of the policies and we have no right to import into the policies ambiguities that do not exist. Peacock & Peacock, Inc. v. Stuyvesant Insurance Company, 332 F.2d 499, 504 (8 Cir. 1964).
In my view, this is a case where the general rule stated in Arditi v. Massachusetts Bonding & Insurance Co., 315 S.W.2d 736 (Mo.1958) and followed in Fidelity & Casualty Co. of New York v. Western Casualty & Surety Co., 337 S.W.2d 566 (Mo.App.1960) should be applied.
I would reverse and remand with directions to enter judgment that the policy of The Home Indemnity Company affords primary coverage and the policy of Liberty is excess coverage.
Rehearing denied; MATTHES, Circuit Judge, dissenting.