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Bowers v. Alamo Rent-A-Car Inc.6/17/1998
"super-escape clause." See 8A J.A. Appleman, Insurance Law and Practice ยง 4906, at 349-50 (1981) (defining super-escape clause). The State Farm policy contained an "excess clause" providing: "If a temporary substitute car, a non-owned car or a trailer designed for use with a private passenger car or utility vehicle has other vehicle liability coverage on it, then this coverage is excess." Majority opinion, at 2. Consequently, this case involves a conflict between a super-escape clause and an excess clause.
A number of courts in other jurisdictions have held that, in such situations, the policy with the super-escape clause is primary. See, e.g., Insurance Co. of North Am. v. Continental Cas. Co., 575 F.2d 1070 (3d Cir. 1978); Protective Nat'l Ins. Co. v. Bell, 361 So.2d 1058 (Ala. 1978); Automobile Underwriters, Inc. v. Hardware Mut. Cas. Co., 273 N.E.2d 360 (Ill. 1971). These courts reason that, because the excess clause only provides coverage when primary insurance is exhausted, there is no "other valid and collectible insurance" available. Thus, the superescape clause is not triggered, and the policy containing the super-escape clause is primary. These courts acknowledge that a super-escape clause specifically mentions excess insurance. Nevertheless, these courts hold that the language requiring "other valid and collectible insurance" is controlling, and the mere inclusion of additional language should not allow insurers to avoid coverage. See Insurance Co. of North Am., 575 F.2d at 1073-74; Automobile Underwriters, Inc., 273 N.E.2d at 362-63. It is true that some jurisdictions give effect to the specific language in the super-escape clause over that of the excess clause. See, e.g., Government Employees Ins. Co. v. Globe Indem. Co., 415 S.W.2d 581 (Ky. 1967). Other jurisdictions find the two clauses mutually repugnant and apply both policies pro rata. See, e.g., Hardware Dealers Mut. Fire Ins. Co. v. Farmers Ins. Exch., 444 S.W.2d 583 (Tex. 1969). However, I agree with the cases holding that a policy containing an excess clause does not constitute "other valid and collectible insurance" under the terms of a super-escape clause.
Therefore, I would hold, under the terms of the agreements at issue in this case, that Alamo had the primary obligation to defend Bowers and that State Farm's policy provided excess coverage. I would not, however, hold that Alamo's rental agreement violated public policy.
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