
    LAW AND CHANCERY COURT OF THE CITY OF NORFOLK
    J. K. Wyatt, etc., et al. v. Olympic Ins. Co. et al.
    July 16, 1970
    Case No. (Chancery) 6126
   By Judge Walter A. Page

Carolina Casualty Insurance Company concedes that its policy covers Wyatt and Majette and the court is of the opinion that Olympic Insurance Company’s policy also furnishes coverage in that the Wyatt vehicle was a “hired vehicle,” and under the terms of the lease agreement, in the exclusive control of the lessee, Clay. To this extent the court adopts the reasoning and authorities cited by counsel for Carolina Casualty Insurance Company in reaching its conclusions. The court does not agree with counsel for Carolina Casualty Insurance Company that the Olympic Insurance Company policy provides primary coverage on the theory that the “other insurance” clause in the former’s contract applied to excess, whereas that of the latter was on a pro rata basis. Cases supporting counsel for Carolina Casualty Insurance Company’s position are cited in its memorandum, and it is true that this is the rule adopted in many jurisdictions. Other jurisdictions have held that where two automobile liability policies cover the same loss and both contain conflicting or inconsistent “other insurance” provisions, such provisions cancel each other out, and the situation is the same as it would be if neither policy provided for the other insurance. The result is that apportionment, in the ratio that the limit of liability fixed in each policy bears to the total limits of liability in all the policies covering the risk, is the equitable solution of the problem. See Annotation, 76 A.L.R.2d p. 502.

The court is of the opinion that the latter principles should apply in this instance. Under the holding of the court that both companies had a contractual obligation for the same risk, the court is of the opinion that it is equitable that they should share it. The court feels that this view is strengthened in the instant case where neither policy contains an endorsement to protect the other.  