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Wyoming Ins. Guar. v. Allstate Indem.12/21/1992
ire a juxtaposition so that by the absence of a victim in a vehicle, the DOC coverage is claimed to change positions to then, for the first time, jump to a higher level than the second responsibility to step in after instead of before the state fund. Frankly, I find no justification for this magic movement either in logic, statute, or policy terminology. Where there is UM coverage, exposure to the DOC/UV coverage is the second level before the state fund; but, if there is no UM exposure or coverage, by this court's decision, the operator coverage can then move to last priority.
One of the major difficulties in these cases comes from Allstate's utilization of a second inapplicable principle for decision which is the application of broad insurance terminology to the constrained and specific subject of private passenger automobile insurance. Initially, this is the differentiation between separate policies which may be classified as primary and excess and provisions in the same policies which provide for levels of application of the same carrier's responsibility. The automobile insurance policy constricted within the criteria of the Financial Responsibility Acts as required driver coverage does not encompass the broad concepts of a primary policy and another umbrella coverage insurer.
In the first place, DOC-UV coverage should not be conceptualized as excess insurance, it is primary insurance as a second level coverage to be applied only after the insurance on the described vehicle, if any, is exhausted. If there is no automobile coverage, the DOC-UV clause provides the primary coverage. UM, or its half brother — under insured motorist insurance (UIM) — is not conventional excess either, since it is not written on behalf of the tort feasor, it is substitute protection written for the victim in the similar sense that first person property damage insurance on your motor vehicle is not excess coverage to the property damage liability coverage hopefully provided by the tort feasor's insurance policy.
Conventional primary and excess coverage definitions in this general application for umbrella, general liability, and floater coverage are defined by 16 Ronald A. Anderson, Couch on Insurance 2d § 62:41, at 55-56 (Rev. ed. 1983 & Supp. 1992):
Primary insurance coverage is insurance coverage whereby, under the terms of the policy, liability attaches immediately upon the happening of the occurrence that gives rise to liability. Excess or secondary coverage is coverage whereby, under the terms of the policy, liability attaches only after a predetermined amount of primary coverage has been exhausted. A secondary insurer thus greatly reduces his risk of loss and this reduced risk is reflected in the cost of the policy. An excess or secondary policy will not come into operation in the absence of primary coverage and excess coverage clauses in liability policies can only be obtained where there is other primary coverage available. Until such time as the limits of primary insurance coverage are exhausted, secondary coverage does not provide any collectible insurance. Thus, where insured failed to procure primary coverage, excess insurers could not be held liable on policies. Whitehead v. Fleet Towing Co. (1982) 110 Ill. App.3d 759, 66 Ill Dec 449, 442 N.E.2d 1362.
None of this discussion fits the automobile policy relationship where the better designation is first level, PIP, if it exists, McMichael, 77 Md. App. 208, 549 A.2d 1157; second level, in non-PIP states, insurance on the specific vehicle; third level, operator insurance clause DOC-UV; and fourth level, UM or UIM.
One form of explanation is to distinguish a general excess limits po
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