Spruill v. Westfield Insurance Co. (Lawyers Weekly No. 012-233-16, 15 pp.) (Donna Stroud, J.) Appealed from Currituck County Superior Court (J.C. Cole, J.) N.C. App. Unpub.
Holding: Although plaintiff was not physically occupying the insured vehicle, he was helping the insured vehicle back up onto a highway when he was struck and injured, so there was a direct causal relationship between the insured vehicle and plaintiff’s injury. Thus, plaintiff’s injury occurred from using the truck as a vehicle, rendering plaintiff an insured.
We affirm the trial court’s grant of summary judgment for plaintiff and declaration that defendants Westfield Insurance Co. and Allstate Property and Casualty Insurance Co. provided coverage pro rata to their liability limits.
Although the language in the defendant-insurers’ policies differs, both result in the named insurer as an excess provider within their respective provisions, leading to the result of two different excess providers and no primary provider. Thus, the policies are identical in effect, in that they lead to it being impossible to determine which policy – if either – provides primary coverage. Since both policies cannot be excess providers, and since the effect of the respective policy provisions is to cancel each other out, this is a mutually repugnant result.
Consequently, we treat the provisions the same way we would in a typical mutual repugnancy scenario and go back to the default position of each policy, which is for each insurer to pay its proportion of the loss. Therefore, as the lower court properly concluded, excess coverage should be pro-rated between the insurers according to their respective liability limits.