concurring in part and dissenting in part.
I concur in Parts I and II and dissent to Part III of the majority opinion.
This is not a case, in which the policies are repugnant to one another, i.e., in which each policy disclaims liability insofar as there is another policy which provides coverage. Rather, Austin has conceded liability and thus the issue before us is whether the coverage is to be prorated or whether it is excess, not one of coverage or a duty to defend. Many of the cases relied upon in the majority opinion are concerned with whether or not the general liability policy provides any coverage or whether or not it creates any duty to defend. It seems to me that the plain wording of the policy which makes the coverage excess if the loss arises out of the ownership, maintenance, operation, use, loading, or unloading of the automobile is sufficient to affirm the trial court’s decision. I realize the theory is that the damage which arose as a result of the negligent failure to remove the mud from the road or to warn of the danger are not losses arising out of the use of the automobile. But I believe that the losses arose out of the “ownership, maintenance, operation, use, loading or unloading” of an automobile within the meaning of the Mil-bank and Tri-State policies for the purpose of determining primary coverage, and that *632but for the mud deposited on the road by the insured vehicles, the loss would not have occurred.
The majority opinion concludes that it is not practical to apportion the loss between the concurrent acts, but Tri-State and Mil-bank conceded that if they prevailed on this issue the loss should be apportioned between vehicle-related acts and nonvehicle-related acts. A contrary conclusion seems to simply illustrate the fact that the distinction is inapposite for this purpose and that we should be guided by the clear wording of the policy as to excess coverage.
I would affirm the trial court on this issue.