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GEICO General Insurance Co. v. Northwestern Pacific Indemnity Co.6/14/2005
tadoo, 302 A.D.2d 460 (N.Y. 2003), the excess liability carrier had disclaimed but the tortfeasor's total coverage would have still been less than plaintiff's UM coverage even if the excess carrier had not disclaimed. The New York court accepted the liability carrier's disclaimer so it did not reach the issue that would have been pertinent here: whether excess coverage must be exhausted as a prerequisite to the UM carrier becoming liable on its policy.
CONCLUSION
In order to fully answer the question certified to us here it was necessary to first determine whether NPIC's policy required that UM coverage would be part of the primary coverage to which the NPIC policy was excess. As a matter of Oklahoma law NPIC's excess liability policy required UM coverage of the sort that the Chubbucks bought from GEICO. Further, such coverage was primary while NPIC's excess coverage was secondary. "If language of a contract is clear and free of ambiguity the court is to interpret it as a matter of law . . . . Whether a contract is ambiguous and hence requires extrinsic evidence to clarify the doubt is a question of law for the courts." Pitco Production Company v/ Chaparral Energy, Inc., 2003 OK 5, 12, 63 P.2d 541, 545. [Footnotes omitted.] NPIC's policy language was unambiguous. Thus, we declare its meaning is a matter of law: the UM coverage contained in GEICO's automobile policy was part of the primary coverage and NPIC's policy was secondary to it.
Title 36 O.S. 2001 § 3636 does not contemplate that excess liability policies of the sort issued by NPIC are to be included in determining the "liability limits" of "an insured motor vehicle," as those terms are used in § 3636. Section 3636 applies only to "primary liability policies insuring against liability arising from ownership, maintenance, or operation of an automobile. . . ." Moser v. Liberty Mutual Ins. Co., 1986 OK 78, 5, n.8, 731 P.2d 406. "The uninsured motorist provisions apply to all automobile liability insurance policies (or motor vehicle liability policies as defined in 47 O.S. § 7-324) but not to 'umbrella' policies. . . ." Moser at 8. [Footnote omitted, emphasis added.] Despite differences in Moser from the situation presented here, we clearly stated there that § 3636 does not apply to excess liability policies of the sort at issue here. Thus, we find the Moser opinion instructive and hold that § 3636(C) does not apply to excess liability policies.
The opinions cited by GEICO from other jurisdictions are inapposite to the issue presented here because those opinions involved the interpretation of "gap" coverage UM statutes. None of those opinions considered the issue before us here: the priority of payment between a UM carrier and an excess liability carrier.
CERTIFIED QUESTION ANSWERED
WATT, C.J., WINCHESTER, V.C.J., OPALA, KAUGER, EDMONDSON, TAYLOR, COLBERT, JJ. - concur.
LAVENDER, HARGRAVE, JJ. - concur in result.
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