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Grange Mutual Casualty Co. v. United States Fidelity & Guaranty Co.9/4/2003
ial court was correct in ruling Chrisann was a resident of John and Cathy's household under Grange's insurance policy.
II. WHETHER USF&G;IS A "PRIMARY INSURER" IN RELATION TO GRANGE BECAUSE CHRISANN WAS NAMED IN ITS POLICY.
. Grange next argues that USF&G;has a higher duty to pay any settlement, i.e. is a primary insurer in relation to Grange, because Chrisann is named in the USF&G;policy while she falls under the "member of the household" clause in Grange's policy. Farm Bureau insured the vehicle involved in the accident; it is the primary insurer. However, the coverage under that policy was not sufficient to pay the claim. Both the USF&G;policy and the Grange policy contain a clause stating that the policy will provide liability coverage to an insured on a pro rata basis only in excess over any other collectible insurance as to a vehicle not owned by the insured. If both of these policies were enforced, Chrisann would be without any coverage above Farm Bureau's limit of liability. Consequently, these two clauses are considered mutually repugnant and are ignored. Allstate Ins. Co. v. Chicago Ins. Co., 676 So. 2d 271, 275 (Miss. 1996). In this situation, benefits under the two policies shall be pro rated according to the coverage limits of each policy. Id.
. Grange asks this Court to hold that naming Chrisann as an insured in the policy heightens the duty USF&G;owes and to put USF&G;in a primary insurer position with respect to Grange. Grange offers no support for this position, and we do not adopt it. We hold that the same duty is owed to an unnamed party to a contract and a named party. As an insured pursuant to the terms of the Grange policy, Chrisann is entitled to the same coverage as her father as a named insured. This argument is without merit.
III. WHETHER THE TRIAL COURT APPLIED AN IMPROPER LEGAL STANDARD IN GRANTING USF&G;SUMMARY JUDGMENT.
. Grange argues the trial court erred by improperly placing the burden of proof on it to disprove allegations made by USF&G;that Chrisann was an insured. We does not agree. Within its "Findings of Fact and Conclusions of Law," the trial court stated that Grange contends that because Coker (i.e. Chrisann) was a named insured under USF&G;s policy, USF&G;s policy should be primary. However, Grange cites no authority to the Court in support of that proposition, and the Court is unaware of any authority which draws such a distinction or supports such a proposition. To ask for authority to support challenging the law of this state stated in Johnson is not error. As stated above, this Court has held that, for the purposes of evaluating automobile coverage, an unemancipated minor is a resident of both parents' households. Johnson, 659 So. 2d at 879. The trial court recognized the law of this state and pointed out that Grange had offered no authority contradicting that holding. USF&G;met its burden on this point by showing Chrisann to be a resident of John and Cathy's household under Mississippi law. This argument is wholly without merit.
IV. WHETHER THE TRIAL COURT IMPROPERLY REFUSED TO GRANT GRANGE SUMMARY JUDGMENT.
. An incidental benefit to a third party is not sufficient legal ground to give him a right of action upon a contract. Burns v. Washington Sav., 251 Miss. 789, 796, 171 So. 2d 322, 324 (1965). Grange points to Burns as support for its proposition that the trial court erred in not granting its motion for summary judgment. However, as discussed above, this Court has held that where two "other insurance" clauses would cancel each other out and leave the insured without coverage, the clauses are considered mutually repugnant and are i
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