Phoenix Assurance Co. v. Larsen

WHELAN, J.

On July 25, 1962, Lillian C. Larsen (respondent) was one of four occupants of an automobile owned and driven by Kathleen M. Simpson when it collided with a vehicle owned and operated by an uninsured motorist. All four occupants of the Simpson car suffered injuries, which were fatal to two of them.

Kathleen M. Simpson had uninsured motorist insurance coverage with policy limits of $10,000 and $20,000 issued by Fidelity and Casualty Company of New York (Fidelity). Fidelity has made its policy limits of $20,000 available to the occupants and surviving spouses and legal representatives of deceased occupants of the Simpson vehicle by interpleading them.

On August 12, 1961, appellant Phoenix Assurance Company of New York (Phoenix) issued its bodily injury liability policy of insurance in favor of respondent as “named insured.” It contained a provision for uninsured motorist coverage with limits of $10,000 and $20,000. Phoenix also was named a defendant in the interpleader action.

By cross-complaint against Phoenix, respondent sought a declaration that the Phoenix policy gave her coverage of $10,000 in addition to that provided by the Fidelity policy.

The Phoenix policy contained these provisions relative to “other insurance” in a section numbered “5” under “Conditions”:

“With respect to bodily injury to an insured while occupying an automobile not owned by a named insured under this endorsement, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of liability of this endorsement exceeds the sum of the applicable limits of liability of all such other insurance.

“With respect to bodily injury to an insured while occupying or through being struck by an uninsured automobile, if

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such insured is a named insured under other similar insurance available to him, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable under this endorsement for a greater proportion of the applicable limit of liability of this endorsement than such limit bears to the sum of the applicable limits of liability of this insurance and such other insurance.