Mission Insurance v. United States Fire Insurance

Wilkins, J.

(dissenting, with whom Lynch, J., joins). The Superior Court judge was right. The U.S. Fire coverage is excess of the Mission coverage. The limit of liability clauses call for that conclusion, and the “other insurance” clauses do not change the result.

The Mission policy provides that it is excess of “the limits of the underlying insurances set out in the attached schedule.” The U.S. Fire policy was not listed on the attached schedule. *502Thus Mission does not state it is excess of U.S. Fire’s coverage. The U.S. Fire policy, on the other hand, provides coverage in excess of “the total of the applicable limits of the underlying policies listed in Schedule A hereof, and the applicable limits of any other insurance collectible by the. insured” (emphasis supplied). Mission’s policy is “other insurance collectible by the insured” as to which U.S. Fire states it is excess. The limit of liability clauses standing alone unquestionably place U.S. Fire’s coverage in excess of Mission’s coverage.

The policies’ “other insurance” clauses do not permit, much less require, a different conclusion. Mission’s “other insurance” clause seeks to place Mission’s obligations in excess of any other valid and collectible insurance covering a loss except “insurance that is specifically stated to be excess of this policy.” U.S. Fire’s policy specifically states that it is in excess of Mission’s policy. U.S. Fire’s “other insurance” clause says that, if other insurance is available, U.S. Fire will be excess as to that insurance “except insurance purchased to apply in excess of . . . the limit of [U.S. Fire’s] liability” under its policy. Mission’s coverage was not purchased to be in excess of U.S. Fire’s coverage. It was purchased to be in excess of certain listed policies of which U.S. Fire’s policy was not one. Thus U.S. Fire’s coverage is in excess of Mission’s coverage.

The court never explains why this straightforward conclusion, based on uncomplicated policy language, should be rejected. My conclusion is consistent with the fact that Mission provided less coverage ($1,000,000 v. $3,000,000) for a substantially higher annual premium ($7,900 v. $1,500).