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AVIS Rent-A-Car System Inc. v. Allstate Insurance Co.6/27/1996
primary, with liability coverage apportioned between them.
The determination of whether Allstate, Avis, or both provided primary liability coverage must begin with an analysis of the provisions of the insurance policies. See United States Fidelity & Guaranty Co. v. Budget Rent-A-Car Systems, Inc., supra; see generally Guaranty National Insurance Co. v. Ohio Casualty Insurance Co., supra.
Here, the policy issued by Allstate provided in pertinent part:
If There Is Other Insurance
If an insured person is using a substitute auto or non-owned auto, our liability insurance will be excess over other collectible insurance.
The Avis rental agreement provided in pertinent part:
The coverage provided by [Avis] shall be excess over any applicable insurance available to [the person renting the vehicle] or any other driver, from any other source, whether primary, excess, secondary or contingent in any way.
Avis argues that, "from a purely contractual standpoint," the wording of its clause makes it a "super excess" clause, which "applies only if there is no coverage whether 'primary,' 'excess,' 'secondary,' or 'contingent.'" However, the argument mischaracterizes the clause in the Avis rental agreement. Unlike the clause involved in Brna v. Farmers Insurance Exchange, supra, Avis' clause, like Allstate's, does not exclude coverage if other insurance coverage is available, but rather merely makes its coverage excess to any other coverage. In any event, the two clauses are, for practical purposes, indistinguishable: Both attempt to avoid providing primary coverage in circumstances such as those arising in this case. Thus, they are mutually repugnant. See Brna v. Farmers Insurance Exchange, supra (although the plaintiff's insurer tried to avoid providing even excess coverage, both companies sought to avoid primary coverage, making the provisions of the two policies mutually repugnant).
When two or more otherwise enforceable clauses contained in policies of the same type are mutually repugnant, both are void. See Empire Casualty Co. v. St. Paul Fire & Marine Insurance Co., 764 P.2d 1191 (Colo. 1988); Brna v. Farmers Insurance Exchange, supra. Hence, the trial court erred in giving effect to the "other insurance" excess clause in the Avis rental agreement in the face of Allstate's excess clause. Instead, primary liability coverage must be apportioned between them. See Empire Casualty Co. v. St. Paul Fire & Marine Insurance Co., supra; Brna v. Farmers Insurance Exchange, supra; Guaranty National Insurance Co. v. Ohio Casualty Insurance Co., supra.
The judgment is reversed, and the cause is remanded to the trial court for further proceedings consistent with the views expressed in this opinion.
JUDGE DAVIDSON and JUDGE TAUBMAN concur.
Disposition
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS
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