 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Century Surety Co. v. Continental Casualty Co.6/24/2005
so contained an "other insurance" clause. It provided that if other valid and collectible insurance is available to the insured for a loss covered by Continental's policy, then Continental's coverage is limited, in relevant part, as follows:
a. Primary Insurance
This insurance is primary except when b. below applies. If this insurance is primary our obligations are not affected unless any of the other insurance is also primary.
b. Excess Insurance
This insurance is excess over:
(2) Any other primary insurance available to you covering liability for damages arising out of the premises or operations for which you have been added as an additional insured by attachment of an endorsement.
On April 13, 2002, Century filed a Petition for Declaration of Rights with the Warren Circuit Court pursuant to KRS 418.040. In its petition, Century stated that there was a contest as to whether the "Other Insurance" provision required Century to indemnify Continental. Following briefing, the circuit court entered a declaratory judgment on January 30, 2004. The circuit court examined two issues: 1) whether the license agreement executed by Robinson's and the Mall provided contractual indemnity for the Mall's negligence; and 2) whether the terms of the two insurance policies established one policy as primary and the other as excess, or whether each policy provided pro rata coverage. After reviewing the terms of the insurance policies and the relevant case law, the circuit court ruled for Continental. It found that paragraph 11 of the license agreement contractually bound Robinson's to indemnify the Mall for its own negligence. In addition, the circuit court found that the provisions of the insurance policies made Century the primary insurer and Continental the excess insurer. It therefore declared that Continental was entitled to indemnity from Century. This appeal followed.
Century raises two issues on appeal. First, Century asserts that the circuit court erred in finding that the license agreement required Robinson's to indemnify the Mall for the Mall's own negligence. Second, Century argues that the circuit court erred in failing to find that the Continental policy was primary over the Century policy.
"It is a well established that construction and interpretation of a written instrument are questions of law for the court.... We review questions of law de novo and, thus, without deference to the interpretation afforded by the circuit court."
In its brief, Century cites to several foreign jurisdictions to support its argument that the trial court erred in its ruling. However, the trial court relied upon Fosson v. Ashland Oil & Refining Co., which is still good law in Kentucky. Pursuant to SCR 1.030(8)(a), we are bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court. Recognizing this dilemma, Century, in its reply brief, suggest that "the law enunciated in Fosson should be refined to reflect current standards." (Emphasis added). Despite its argument to the contrary and the foreign cases cited by Century, we are not at liberty to refine Fosson or follow other jurisdictions while there is controlling and binding case law from Kentucky's highest court. As such, we have reviewed the order of the Warren Circuit Court and find that its reliance on Fosson and its analysis of the law to be on point and thus, we adopt the circuit court's order, in relevant part, as follows:
I. Contractual Indemnity
The Supreme Court of Kentucky continues to recognize the ability of individuals to contractually assume the obligation to indemnif
Page 1 2 3 4 Kentucky Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|