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United States Fidelity & Guaranty Company v. John Deere Insurance Company8/29/2002
DATE OF JUDGMENT: 11/23/1999
NATURE OF THE CASE: CIVIL INSURANCE
DISPOSITION: REVERSED AND REMANDED 08/29/2002
MOTION FOR REHEARING FILED: 9/12/2002; denied & Opinion Modified at 12/05/2002
EN BANC.
. This appeal involves the issue of whether the two commercial automobile liability insurance policies should be pro-rated according to the coverage limits of each policy or whether they should be paid out according to the priority of coverage. We find that the two policies should not be pro-rated because, under Mississippi law, the insurer for the owner of the vehicle involved in the accident is the primary insurer. Even though the "other insurance" clauses in the two policies are identical, they do not conflict. The "other insurance" clause simply establishes the order of priority of payments. The insurer of the vehicle is first in the paying line of uninsured motorist benefits.
FACTS
. This appeal from the Circuit Court of the First Judicial District of Hinds County arises out of an automobile accident between Albert L. East, IV ("Bert") and Thomas Blalack, an uninsured motorist. The accident was solely caused by Blalack's negligence. Bert suffered minor physical injuries. Albert L. East, III ("Al"), who was riding as a passenger in the vehicle driven by Bert, sustained injuries which required plastic surgery , reconstructive surgery of the left hip, reconstructive surgery of the left rotator cuff and prostate surgery to allow urination.
. Al and Bert owned car dealerships in Natchez and Jackson. The Natchez dealership was insured by John Deere Insurance Company, and the Jackson dealership was insured by United States Fidelity and Guaranty Company ("USF&G;). Al and Bert were both listed as insureds on each policy. The vehicle involved in the accident was owned by the Natchez dealership and was insured by John Deere. The John Deere policy covered 98 vehicles with $20,000.00 in uninsured motorist coverage per vehicle, totaling $1,960,000.00 in available UM coverage. The USF&G;policy was purchased by the Jackson dealership to cover 583 vehicles with $25,000.00 in UM coverage per vehicle, totaling $14,575,000.00 in available UM coverage. The total available UM coverage under both policies was $16,535,000.00.
. Each of the policies contains the following identical "other insurance" clause:
5. OTHER INSURANCE
a. For any covered "auto" you own, this Coverage Form provides primary insurance. For any covered "auto" you don't own, the insurance provided by this Coverage Form is excess over any other collectible insurance.
. Bert and Al filed separate lawsuits against Blalack alleging that his negligence caused the accident. Bert and Al also sued John Deere and USF&G; asserting claims for uninsured motorists benefits. Al's wife, Ella May, joined in Al's complaint and asserted a claim for loss of consortium.
. USF&G;answered the separate complaints and asserted that, while its insurance policy did apply to the accident, the UM benefits under the USF&G;policy were excess over and above the John Deere UM coverage, which was primary.
. The lawsuits filed by the Easts were consolidated for all purposes. The Easts filed a motion for partial summary judgment requesting the circuit court to hold that the Easts were entitled to stack the uninsured motorists coverage limits for every automobile covered under both the John Deere and USF&G;policies. The circuit court granted the motion.
. John Deere filed a cross-motion for summary judgment seeking a ruling that uninsured motorist benefits unde
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