June 26, 2019

Tenth Circuit: Concurrent Insurer Responsible for Proportional Shares of Loss for School Fire

The Tenth Circuit Court of Appeals issued its opinion in Philadelphia Indemnity Ins. Co. v. Lexington Ins. Co. on January 19, 2017.

In 2012, Philadelphia Indemnity Insurance Company issued an insurance policy to Tulsa School of Arts and Sciences (TSAS), an Oklahoma charter school. TSAS leased the Barnard Elementary School building from the Independent School District No. 1 of Tulsa County, Oklahoma. TSAS obtained the insurance policy, as required by the lease, naming the District as the payee. The District held a separate insurance policy on the building leased by TSAS and on over 100 other facilities the District owned. The building was damaged by fire on September 5, 2012. The total adjusted loss was $6,014,359.06. The insureds were paid; however, the insurers pursued litigation over which policy covered the damage. Both policies protected against fire damage and included identically worded “other insurance” provisions. Philadelphia sought a declaratory judgment in the U.S. District Court for the Northern District of Oklahoma in March 2013. The district court granted Philadelphia’s motion in December 2015 and denied Lexington’s request for summary judgment.

Rejecting Lexington’s arguments, the Tenth Circuit found that Philadelphia had standing. The court held that Philadelphia met the Constitutional requirement for a case or controversy in the context of a declaratory judgment. Philadelphia’s alleged injury was financial, definite, and concrete. The parties’ interests were adverse: either insurer would bear the loss or share it. Due to the causal connection of how the insurers’ policies interact with one another, a judicial determination of the insurers’ responsibilities under the policies would provide redress. The court stated that this action is between insurers for a declaration of the insurers’ responsibilities, and not an action to enforce a contract. Therefore, Philadelphia had standing.

The Tenth Circuit agreed with the district court’s conclusion. The court held that the district court properly applied Oklahoma insurance law in its decision on summary judgment. The panel applied the framework established by the Oklahoma Supreme Court in Equity Mutual Insurance v. Spring Valley Wholesale Nursery to affirm that both policies were primary polices, the identical policy provisions canceled each other out, and the total loss must be shared proportionally. This reasoning was further supported by the Fifth Circuit’s decision in Southern Insurance Co. v. Affiliated FM Insurance Co. In Southern Insurance, the court applied Mississippi law to hold that concurrent policies containing “other insurance” clauses canceled each other out and required pro rata calculation.

Philadelphia argued that the district court should have required Lexington to pay more because Lexington’s policy limit was $100 million, while its policy limit was $7 million. The court disagreed. Because Lexington’s policy included a “limit of liability” endorsement, Lexington’s policy limit was the amount of loss here and not the full $100 million.

Judge McHugh concurred in part and dissented in part. He agreed with Philadelphia. The district court should have used Lexington’s policy limit of $100 million and not the liability limit to determine the proportional share. The dissenting part also relies on a different interpretation of the default rule from Equity Mutual. Without expressly provided for in the insurance policy, the pro rata calculation should be based on the total policy limit of each policy. This conclusion would result in Philadelphia liable for 6.54% and Lexington 93.46%. The majority of the panel affirmed the lower court’s calculation apportioning 53.79% of the loss to Philadelphia, and 46.21% to Lexington.

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