American Family Mut. Ins. Co. v. Regent Ins. Co. ( 2014 )

Nebraska Advance Sheets
AMERICAN FAMILY MUT. INS. CO. v. REGENT INS. CO. 25
Cite as 288 Neb. 25
American Family Mutual Insurance
Company, appellee, v. R egent
Insurance Company, appellant.
___ N.W.2d ___
Filed May 2, 2014. No. S-13-297.
1. Equity: Appeal and Error. On appeal from an equity action, an appellate court
tries factual questions de novo on the record and, as to questions of both fact and
law, is obligated to reach a conclusion independent of the conclusion reached by
the trial court.
2. Insurance: Contracts: Appeal and Error. The interpretation of an insurance
policy presents a question of law that an appellate court decides independently of
the trial court.
3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
4. ____: ____. An appellate court will affirm a lower court’s grant of summary
judgment if the pleadings and admitted evidence show that there is no genuine
issue as to any material facts or as to the ultimate inferences that may be drawn
from the facts and that the moving party is entitled to judgment as a matter
of law.
5. Contribution: Equity. Contribution is an equitable remedy given to the party
who pays a debt that is concurrently owed by another party. The existence of a
“common obligation” makes the right to contribution possible.
6. Insurance: Contribution. Among insurers, the right to contribution arises in two
basic circumstances: (1) An insurer of a joint tort-feasor has paid all, or greater
than its share, of a loss, and (2) a single insured is covered by concurrent or
“double” insurance, and one insurer paid all, or greater than its share, of a loss.
7. ____: ____. In the circumstance of concurrent insurers, contribution is proper
only where the policies insure the same entities, the same interest in the same
property, and the same risk.
8. Insurance: Contracts: Contribution. When considering whether insurance poli-
cies cover the “same risk,” it is not necessary that the policies provide identical
coverage in all respects. As long as the particular risk actually involved in the
case is covered by both policies, the coverage is concurrent, and contribution will
be allowed.
9. ____: ____: ____. In determining whether one insurer is entitled to contribu-
tion from another, courts consider the nature of the claim, the relation of the
insured to the insurers, the particulars of each policy and any other equitable
considerations.
10. Insurance: Liability. The insurer seeking indemnification against a concurrent
insurer does so entirely in its own right.
11. Insurance: Contribution: Words and Phrases. Contribution in a concurrent
insurer scenario is a right of the insurer flowing from equitable principles
designed to accomplish ultimate justice in the bearing of a specific burden.
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12. Insurance: Contribution: Proof. A contribution rule based on apportionment of
fault would hamper settlements and require the defendant to prove its own fault
before the defendant’s insurer could seek equitable contribution.
13. Contribution. For coverage to be concurrent for purposes of contribution, it must
be at the same level—primary to primary or excess to excess.
14. Insurance: Liability. The loss between the primary insurers should be appor-
tioned before considering the excess insurers’ exposure.
15. Insurance: Contracts. Among policies at the same level, absent compelling
equitable reasons, courts should not impose an obligation on an insurer that con-
travenes a provision in its insurance policy.
16. Insurance: Contracts: Words and Phrases. A true excess insurance policy
is one providing coverage conditioned upon the existence of a primary policy,
which coverage does not begin until a loss exceeds a stated level.
17. Insurance: Contracts: Liability. Umbrella policies, as the only true excess
insurance policies, incur liability only after the exhaustion of all other policies,
including primary policies containing excess insurance clauses.
18. ____: ____: ____. Where an excess clause and a pro rata clause appear in concur-
rently effective policies, the pro rata clause is usually disregarded and full effect
is given to the excess clause, making the pro rata policy the primary insurance.
19. ____: ____: ____. Excess insurance clauses are mutually repugnant, and the
liability should be shared by the insurers pro rata in the proportion that their
respective policy limits bear to the entire loss.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Mark C. Laughlin and Patrick S. Cooper, of Fraser Stryker,
P.C., L.L.O., and Brian D. Nolan and Michael D. Reisbig, of
Nolan, Olson, & Stryker, P.C., L.L.O., for appellant.
Joel D. Nelson and Joel A. Bacon, of Keating, O’Gara,
Nedved & Peter, P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
McCormack, J.
I. NATURE OF CASE
This is an action for contribution against an insurer to pay
a share of a settlement paid by another insurer to an injured
guest of a party at an apartment complex. The underlying law-
suit was brought against both the ownership of the complex
and its management under theories of joint and several liabil-
ity. The insurer seeking contribution held liability policies
Nebraska Advance Sheets
AMERICAN FAMILY MUT. INS. CO. v. REGENT INS. CO. 27
Cite as 288 Neb. 25
covering both the complex’s ownership and management. The
insurer being sued for contribution held liability policies cov-
ering the management company; the parties dispute whether
the policies also covered the “same risk” for the ownership
as an additional insured. The insurer seeking contribution
argues that it does not matter whether both tort-feasors were
c
­ oinsureds under all the policies at issue because, either way,
the insurers shared a “common obligation.”
II. BACKGROUND
This contribution action stems from a lawsuit to recover
for injuries sustained when a guest at an apartment com-
plex fell off a third-story apartment’s balcony. Beacon Hill
Investment Group (Beacon Hill) owned the apartment com-
plex, and N.P. Dodge Management Company (NP Dodge)
managed it.
1. Accident
When the decks of the apartment complex were built in
1968, there was no code specifying the minimum height for
deck railings. The decks of the complex were remodeled
in 1997. This improvement was apparently at the behest of
NP Dodge.
According to a representative of Beacon Hill, it was
NP Dodge’s job to ensure that its properties met safety
codes. A representative of NP Dodge generally agreed it was
NP Dodge’s responsibility to keep the property compliant with
current safety codes.
The plans submitted for the permit specified that the old
deck railing would be reused, but incorrectly indicated that
those deck railings were 36 inches high. In fact, the rail-
ings were 30 inches high. The applicable 1994 Uniform
Building Code required guardrails within private apartments
to be a minimum of 36 inches high. The 1994 Uniform
Building Code required most other exterior guardrails to be
42 inches high.
In 2003, NP Dodge’s assistant property manager lived in
a third-floor apartment at the complex. While off duty, she
had a small gathering of her friends at her apartment. There
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28 288 NEBRASKA REPORTS
was underage drinking at the gathering, although the assist­
ant property manager stated she did not provide any guests
with alcohol.
A neighboring tenant and his friend, the guest, stopped by.
The guest went out to the apartment’s balcony to smoke. He
was 20 years old and very intoxicated. He fell over the railing.
Injuries from the fall rendered the guest a quadriplegic.
The guest sued both Beacon Hill and NP Dodge. The com-
plaint alleged that Beacon Hill and NP Dodge were jointly
and severally liable for his injuries under theories of premises
liability and negligence relating to the dangerous condition
of the low railing. The guest also alleged that NP Dodge’s
assist­ nt property manager was negligent in allowing alcohol
a
to be served to minors and in failing to warn the guest of the
low railing height.
2. Management Agreement
NP Dodge has been managing the Beacon Hill property
since 1986. The management agreement in force at the time
of the accident provided that Beacon Hill was to obtain and
keep in force adequate insurance “against liability for loss,
damage, or injury to property or persons which might arise
out of the occupancy, management, operation or maintenance
of the Property.” Beacon Hill was to cover NP Dodge “as an
additional insured on all liability insurance maintained with
respect to the Property.” For its part, NP Dodge was required
by the management agreement to, at all times, maintain “gen-
eral liability, automobile liability, and worker’s compensation
insurance on [NP Dodge’s] employees.” And NP Dodge was to
cover Beacon Hill as an “additional insured on [NP Dodge’s]
general liability policy.”
A “Liability and Hold Harmless” provision contained in a
2001 amendment to the management agreement stated in rel-
evant part:
To the extent not covered by applicable policies of
insurance, [Beacon Hill] shall hold harmless and reim-
burse [NP Dodge] for expenses incurred by [NP Dodge],
including . . . claims for personal injury and property
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AMERICAN FAMILY MUT. INS. CO. v. REGENT INS. CO. 29
Cite as 288 Neb. 25
damage, reasonable costs and attorney fees, and any
liability, fines or penalties, in connection with any claim,
proceedings, or suit involving an alleged violation by
[NP Dodge] or [Beacon Hill], or both, of any law or duty
with respect to any alleged violations of local, federal
or state laws occurring after the effective date of this
Agreement . . . provided, however, that [Beacon Hill]
shall not be responsible to [NP Dodge] for any such
expenses in the event the liability . . . is the result of
a willful violation by [NP Dodge], or its employees, of
any local, federal, or State laws or regulations (unless
[NP Dodge] was not the cause of the violation and has
used its best efforts to remedy the violation), or is the
result of the willful misconduct or the negligent act or
omission of [NP Dodge] or the agents or employees of
[NP Dodge] or for any acts of [NP Dodge] arising outside
of the scope of this Agreement.
Likewise, NP Dodge agreed to hold harmless and reimburse
Beacon Hill
for any loss [Beacon Hill] incurs as a result of a willful
violation by [NP Dodge], or its employees, of any local,
federal, or State laws or regulations (unless [NP Dodge]
was not the cause of the violation and has used its best
efforts to remedy the violation), or is the result of the
willful misconduct or the negligent act or omission of
[NP Dodge] or the agents or employees of [NP Dodge]
and for any acts of [NP Dodge] arising outside of the
scope of this Agreement.
3. Insurance Policies
American Family Mutual Insurance Company (American
Family) insured Beacon Hill as its named insured, and Regent
Insurance Company (Regent) insured NP Dodge as its named
insured. Pursuant to the management agreement, Beacon Hill
was an additional insured under Regent’s policies for NP Dodge
and NP Dodge was an additional insured under American
Family’s policies for Beacon Hill.
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(a) American Family
Primary Policy
American Family provided a primary “Businessowners
Package Policy” for Beacon Hill as the named insured in the
amount of $1 million per occurrence. The coverage included
bodily injury liability. The annual premium was $37,006. The
policy included as an “insured” “any organization, while acting
as [Beacon Hill’s] real estate manager.”
The “Other Insurance” provision of the American Family
primary policy provided that the insurance was primary except
with respect to certain fire, watercraft, and other insurance cov-
erage, which are not applicable here. The obligations under the
American Family primary policy were “not affected [by other
insurance] unless any of the other insurance is also primary.”
In the event there was coverage for the loss with another pri-
mary policy, then the other insurance clause provided:
If all of the other insurance permits contribution by
equal shares, we will follow this method also. Under this
approach each insurer contributes equal amounts until
each has paid its applicable limit of insurance or none of
the loss remains, whichever comes first.
If any of the other insurance does not permit contribu-
tion by equal shares, we will contribute by limits. Under
this method, each insurer’s share is based on the ratio of
its applicable limit of insurance to the total applicable
limit of insurance to the total applicable limits of insur-
ance of all insurers.
(b) American Family
Umbrella Policy
American Family provided an umbrella policy in the amount
of $5 million for Beacon Hill as the named insured. The annual
premium for the umbrella coverage was $5,714.
NP Dodge was an additional insured under the umbrella
policy pursuant to a provision that the policy would cover any
person “(other than your employee) or any organization while
acting as your real estate manager.”
The “Other Insurance” clause of the umbrella policy stated:
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AMERICAN FAMILY MUT. INS. CO. v. REGENT INS. CO. 31
Cite as 288 Neb. 25
If other valid and collectible insurance is available to the
insured for ultimate net loss we cover under this policy,
[American Family’s] obligations under this policy are
limited as follows:
a. As this insurance is excess over any other insur-
ance, whether primary, excess, contingent or on any other
basis, except such insurance as is specifically purchased
to apply in excess of this policy’s Limit of Insurance, we
will indemnify only our share of the amount of ultimate
net loss, if any, that exceeds the sum of:
(1) The total amount that all such other insurance
would pay for the loss in the absence of this insur-
ance . . . .
(c) Regent Primary Policy
Regent provided a primary comprehensive insurance policy
for NP Dodge as the named insured. The policy included gen-
eral liability coverage in the amount of $1 million per occur-
rence. The premium for this policy was $144,403 annually.
A “Blanket Additional Insured Endorsement” for the
Regent primary policy defined as an additional insured “[a]ny
person or organization whom you are required to add as an
additional insured on this policy under a written contract or
agreement . . . .”
The endorsement provided that such “person or organiza-
tion is only an insured with respect to liability arising out of
premises you [NP Dodge] own, rent, lease or occupy; or ‘your
work’ for that additional insured by or for you [NP Dodge].”
The policy elsewhere defines “Your work”:
a. Means:
(1) Work or operations performed by you [NP Dodge]
or on your behalf; and
(2) Materials, parts or equipment furnished in connec-
tion with such work or operations.
b. Includes
(1) Warranties or representations made at any time with
respect to the fitness, quality, durability, performance or
use of “your work”, and
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(2) The providing of or failure to provide warnings
or instructions.
The blanket additional insured endorsement further stated
that the insurance for such person or organization does not
apply to:
“bodily injury” . . . arising out of an architect’s, engi-
neer’s or surveyor’s rendering or failing to render any
professional services including:
1. The preparing, approving or failing to prepare or
approve maps, drawings, opinions, reports, surveys,
change orders, design or specifications; or
2. Supervisory, inspection or engineering services.
As to the named insured under the policy, the “Other
Insurance” section of Regent’s primary policy was similar
in most respects to the other insurance provision of American
Family’s primary policy:
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 pri-
mary. Then, we will share with all that other insurance by
the method described in c. below.
b. Excess Insurance
This insurance is excess over:
(1) [Fire coverage, watercraft coverage, et cetera]
....
(2) Any other primary insurance available to you cov-
ering liability for damages arising out of the premises or
operations for which you have been added as an addi-
tional insured by attachment of an endorsement.
....
c. Method Of Sharing
If all of the other insurance permits contribution by
equal shares, we will follow this method also. Under this
approach each insurer contributes equal amounts until it
has paid its applicable limit of insurance or none of the
loss remains, whichever comes first.
If any of the other insurance does not permit contribu-
tion by equal shares, we will contribute by limits. Under
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AMERICAN FAMILY MUT. INS. CO. v. REGENT INS. CO. 33
Cite as 288 Neb. 25
this method, each insurer’s share is based on the ratio of
its applicable limit of insurance to the total applicable
limits of insurance of all insurers.
But as to an additional insured under the blanket additional
insured endorsement, the other insurance provision of Regent’s
primary policy stated: “Any coverage provided hereunder shall
be excess over any other valid and collectible insurance avail-
able to that person or organization whether primary, excess,
contingent or on any other basis unless a contract specifically
requires that this insurance be primary.”
(d) Regent Umbrella Policy
Regent provided a commercial umbrella policy in the
amount of $4 million for NP Dodge as the named insured. The
premium for this policy was $22,522 annually.
The umbrella policy covered “[a]ny person or organiza-
tion who is an additional insured in the ‘underlying insur-
ance,’” with the caveat that “[t]he coverage afforded under
this insurance will be no broader than that of the ‘underlying
insurance.’”
Similarly to Beacon Hill’s umbrella policy, the other insur-
ance clause of Regent’s umbrella policy stated, as to both its
named and additional insureds, that it was “excess over any
of the other insurance” and will pay only its “share” of the
amount of the loss that exceeds the sum of the “total amount
that all such other insurance would pay for the loss in the
absence of this insurance” and the total of all deductible and
self-insured amounts under all other insurance.
4. Claims Adjuster
Communications
American Family hired an attorney to represent the interests
of both Beacon Hill and NP Dodge in the guest’s suit against
them. American Family’s litigation attorney filed an answer to
the guest’s complaint, generally denying liability on the part of
Beacon Hill or NP Dodge and alleging contributory negligence
to a degree sufficient to bar his recovery.
American Family’s claims analyst wrote to Regent request-
ing that it share in the costs of the litigation attorney’s
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representation. The analyst explained that “it appears that both
our policies have primary coverage.” Therefore, “each insurer
is to contribute in equal amounts until each has paid its appli-
cable limit of insurance or none of the loss remains, which
ever [sic] comes first.”
In consideration of this letter, Regent suggested in its inter-
nal communications that “[d]ifferent court’s [sic] might reach
different results” but that NP Dodge could “make the argu-
ment” that “the fact of insurance coverage for [NP] Dodge
is beside the point,” because the claim did not “fall within
those defined by the [liability and hold harmless] paragraph.”
Furthermore, the agreement required Beacon Hill to “have
coverage for injury to property or persons arising out of the
occupancy of the Property and is to name [NP Dodge] as an
additional insured,” but NP Dodge “has no similar require-
ment.” Therefore, it could be argued that “[t]he fact that
[NP] Dodge has coverage under a [Regent] Policy at a cost
that it incurred for any lapse of other protection does not make
such coverage applicable to this cause except as ‘excess’ for
[NP] Dodge.”
On October 30, 2006, Regent sent a letter to American
Family advising that “at this time, we are unable to agree with
your assessment regarding sharing in the defense of this matter
and contributing one-half of the legal fees incurred by American
Family.” The October 30 letter “direct[ed] [American Family’s]
attention” to the hold harmless provisions of the management
agreement and asserted that under this agreement, Beacon Hill
must “defend and hold harmless [NP] Dodge.” Regent asserted
that “the fact that [NP] Dodge has insurance coverage is moot
to the argument.” Regent further stated:
Paragraph 5 on page 3 [of the management agreement]
clearly provides that the owner is to have coverage for
injury to property or persons arising out of the occupancy
of the property and is to name the agent as an additional
insured. [NP] Dodge has no similar requirement. The fact
that [NP] Dodge has coverage under a [Regent] policy
at a cost that it incurred for any lapse of other protec-
tion does not make such coverage applicable to this loss
except as “excess” coverage for [NP] Dodge.
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AMERICAN FAMILY MUT. INS. CO. v. REGENT INS. CO. 35
Cite as 288 Neb. 25
American Family’s claims analyst responded in a letter
dated December 18, 2006:
This letter is in response to your correspondence of
October 30, 2006, in which you enclosed a copy of the
Management Agreement between Beacon Hill . . . and
[NP Dodge] and Amendment. I did not previously have
that agreement. Based upon my review of that agree-
ment and the policies, I do concur with your assess-
ment regarding American Family’s primary coverage of
[NP Dodge].
By copy of this correspondence to [other parties
involved], I want to reiterate that at no time did American
Family ever suggest that [NP Dodge] was not entitled to
defense and indemnification under the American Family
policy. Rather, I was simply investigating if there were
other policies under which [NP Dodge] would also be
owed primary coverage in this matter.
For a period of time, there were no further communications
between American Family and Regent discussing the priority
of coverage under their respective policies. Regent assumed
that both its primary and umbrella policies would be excess
to both the primary and umbrella coverage provided for in
American Family’s policies. Because Regent estimated the
value of the underlying action to be less than the $6 million
combined amount of coverage through American Family, it did
not think it would ever be liable for a payout.
Regent hired its own litigation attorney to represent the
interests of NP Dodge and to keep Regent informed of the
underlying litigation. Regent instructed the attorney to “only
monitor the litigation, and to not actively participate in the
defense of my insured NP Dodge.” According to Regent’s
claims analyst, had he known that American Family was not
“providing a full defense and indemnification to my insured,
NP Dodge,” he would have instructed the litigation attorney to
“take different action in the underlying litigation, including the
filing of a cross-claim against Beacon Hill for indemnification
pursuant to the property Management Agreement.”
American Family’s litigation attorney generally kept
Regent’s litigation attorney abreast of the matters pertaining to
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the underlying lawsuit by the guest. At no point did American
Family discourage Regent’s more direct involvement. American
Family’s litigation attorney provided Regent’s litigation attor-
ney with hard copies of all the depositions taken during dis-
covery. American Family’s litigation attorney also provided
Regent’s litigation attorney with copies of motions filed and
court orders in the case. Regent has no complaints regarding
the performance of American Family’s litigation attorney in the
underlying action.
American Family’s litigation attorney sought partial sum-
mary judgment on the issue of whether NP Dodge’s assistant
property manager was acting within the scope of her employ-
ment at the time of the fall. That motion was overruled on
August 28, 2008. Another motion for summary judgment
brought on behalf of both Beacon Hill and NP Dodge was
overruled on April 2, 2009. In its April 2 order, the court
directed the parties to submit to mediation on or before June
1. American Family’s litigation attorney apprised Regent’s
litigation attorney of these matters in a letter dated April
3, 2009.
On April 21, 2009, Regent sent a letter to American Family
noting an upcoming scheduled mediation for May 2, “as a cour-
tesy to remind American Family of its duties to our insured,
NP Dodge . . . , as an additional insured on the American
Family Policy.” The letter also took “this opportunity to remind
you of the duties owed to [Regent] as the excess carrier in this
matter.” Finally, Regent stated:
It is our understanding that American Family maintains a
$1 million underlying policy with a $5 million umbrella,
providing total available coverage of $6 million. It is our
position that this case has a settlement value within those
policy limits and that our insured and [Regent] should not
be exposed to any excess exposure.
On May 1, 2009, American Family sent a fax in response to
Regent’s letter, which American Family said it had not received
until April 28. American Family stated:
While we agree with your assertion that we owe a duty
to both Beacon Hill and NP Dodge to act in good faith
in handling this claim we also assert that you owe the
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same duty to your insured. Based on your good faith
obligation to your insured, we believe it is imperative
that a representative of [Regent] appear at the mediation
on May 2, 2009.
American Family further stated in the May 1, 2009, fax:
As expressed in an earlier communication, American
Family’s coverage under the Business Owner Package
Policy (BOPP) policy [sic] is the primary insurance for
Beacon Hill and NP Dodge. Contrary to your statement in
your letter dated April 21, 2009, the [Regent] commercial
liability policy . . . is also a primary policy.
Setting forth various policy provisions, American Family
explained it did “not agree with your assertion that American
Family has $6 Million in coverage before the [Regent] poli-
cies.” American Family stated its position that its $1 million
primary policy was first, then Regent’s primary policy, then
both umbrella policies on a pro rata basis.
Regent did not participate in the mediation. During the
mediation, American Family’s litigation attorney reached a
tentative settlement with the guest. The settlement was signed
on June 10, 2009. It released all liability for Beacon Hill,
NP Dodge, American Family, and Regent in exchange for
an initial payment of $2 million and monthly payments of
$4,375.20 for 25 years. American Family reserved any rights
of contribution against Regent. American Family, pursuant to
the settlement, paid the guest $3.5 million. Regent has not
paid anything toward the settlement. Regent concedes that the
settlement was fair and reasonable.
5. Current Suit for
Contribution
American Family sued Regent for equitable contribution
toward the payment it made to the guest under the settle-
ment agreement. American Family’s complaint alleged that
“American Family’s and Regent’s liability and excess/umbrella
coverages applied to at least one of the two defendants in the
personal injury case (Beacon Hill and [NP] Dodge), applied
to the same risk and loss, and applied to the same potential
liability and exposure.” The complaint further alleged that
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American Family had borne more than its share of the “com-
mon obligation” from Regent. American Family asked for
reimbursement of $1 million plus four-ninths of the cost of
future monthly payments under the settlement.
In Regent’s answer, it generally denied the allegations and
affirmatively asserted the defense of estoppel, lack of privity,
waiver, and unjust enrichment. American Family and Regent
filed cross-motions for summary judgment.
American Family asserted in its motion for summary judg-
ment that, as a matter of law, Regent’s primary and umbrella
coverages applied to the underlying injury claims and that no
policy provision or other agreement negated Regent’s obliga-
tion to pay damages under those coverages. At the hearings on
the motions for summary judgment, American Family elabo-
rated that both companies’ insurance policies insured the same
risk and the same loss.
Regent’s motion for summary judgment generically asserted
that there was no material issue of fact preventing summary
judgment in its favor. At the hearing on the motions, Regent
argued that American Family’s claims analyst conceded in
the December 18, 2006, letter that both American Family’s
primary policy and its umbrella policy were in “first posi-
tion” before either of Regent’s policies. Regent argued that
the May 1, 2009, fax came too late to retract this concession
and that American Family was equitably estopped from seek-
ing contribution. In the event equitable estoppel did not apply,
Regent argued:
They settle it on their nickle [sic], and this is an attempt
to try to essentially subrogate in a way that’s not permit-
ted under the Royal case we cite in our brief, to recover
monies they chose to pay to settle the case where they
are responsible for getting it resolved within their limits,
if they can, on a primary basis, both of their policies; pri-
mary with respect to ours.
The district court granted summary judgment in favor of
American Family. In its order, the court set forth Regent’s
defense as arguing that (1) a direct action against Regent is not
allowed under Nebraska law and (2) equitable estoppel bars
American Family’s claim.
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The court concluded that a direct action for contribu-
tion was proper. The court distinguished Royal Ind. Co. v.
Aetna Cas. & Sur. Co.,1 in which we held that lack of priv-
ity barred one joint tort-feasor’s insurer’s contribution action
against the other tort-feasor’s insurer, but not the insurer’s
action against the tort-feasor. The district court explained that
American Family presented a case where the insurers shared
a joint insured and both provided coverage for the accident
in question. The court explained that one insurer can seek
contribution from another when both policies insured the
same risk. The court explained that insuring the same risk
does not require that each insurer provided coverage to all the
same policyholders.
The court rejected any argument that the management
agreement overrode the respective insurance policies regard-
ing priority of payment.
The court also rejected Regent’s estoppel argument. The
court found that there was no evidence from which a fact
finder could conclude that any American Family representa-
tive misrepresented a material fact, as opposed to express-
ing a mere opinion. The court said that any statements by
American Family about paying for NP Dodge’s defense were
irrelevant, because American Family did not seek contribu-
tion on defense costs. In any event, there was no evidence
that American Family’s claims analyst had the authority to
change the terms of the policies. Finally, the court found
no evidence that Regent had changed its position or pro-
posed course of action in reliance on any representations by
American Family.
The court then concluded that American Family had paid
more than its pro rata share of a joint obligation:
Each insurer . . . had $ 1 million in primary liability
coverage. Above that, American Family had $ 5 million
in excess coverage and Regent $ 4 million in excess cov-
erage. Whether viewed as concurrent obligations to pay
under their primary liability coverages, or that American
1
Royal Ind. Co. v. Aetna Cas. & Sur. Co., 193 Neb. 752, 229 N.W.2d 183
(1975).
Nebraska Advance Sheets
40 288 NEBRASKA REPORTS
Family would pay under its primary liability coverage
and then Regent under its, each insurer owed $ 1 million
initially. That accounts for $ 2 million of the $ 3.5 million
settlement amount. For the remaining $ 1.5 million, each
insurer owed “our share” pursuant to the umbrella/excess
coverage language of the policies. That means five-ninths
of the obligation be borne by American Family and four-
ninths by Regent.
Accordingly, the court entered judgment in favor of American
Family in the amount of $1,666,666. The court overruled
Regent’s motion to reconsider, alter, or amend the order.
Regent appeals.
III. ASSIGNMENTS OF ERROR
Regent assigns that the district court erred in granting sum-
mary judgment in favor of American Family and in denying
summary judgment in favor of Regent.
IV. STANDARD OF REVIEW
[1] On appeal from an equity action, an appellate court tries
factual questions de novo on the record and, as to questions of
both fact and law, is obligated to reach a conclusion indepen-
dent of the conclusion reached by the trial court.2
[2] The interpretation of an insurance policy presents a
question of law that we decide independently of the trial
court.3
[3] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party
against whom the judgment was granted and gives that
party the benefit of all reasonable inferences deducible from
the evidence.4
[4] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
2
Gibbs Cattle Co. v. Bixler, 285 Neb. 952, 831 N.W.2d 696 (2013).
3
Federated Serv. Ins. Co. v. Alliance Constr., 282 Neb. 638, 805 N.W.2d
468 (2011).
4
McKinney v. Okoye, 287 Neb. 261, 842 N.W.2d 581 (2014).
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as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law.5
V. ANALYSIS
[5,6] Contribution is an equitable remedy given to the party
who pays a debt that is concurrently owed by another party.6
The existence of a “common obligation” makes the right to
contribution possible.7 Among insurers, the right to contribu-
tion arises in two basic circumstances: (1) An insurer of a joint
tort-feasor has paid all, or greater than its share, of a loss,
and (2) a single insured is covered by concurrent or “double”
insurance, and one insurer paid all, or greater than its share, of
a loss.8
[7,8] In the second circumstance, that of concurrent insur-
ers, it is said that contribution is proper only where the policies
insure the same entities, the same interest in the same prop-
erty, and the same risk.9 When considering whether insurance
policies cover the “same risk,” it is not necessary that the
policies provide identical coverage in all respects.10 As long as
the particular risk actually involved in the case is covered by
both policies, the coverage is concurrent, and contribution will
be allowed.11
These basic principles of contribution among insurers are
not easily applied, however. Indeed, few areas in the field
of insurance law give courts and parties more difficulty than
that of duplicating or overlapping insurance.12 Part of the
5
Peterson v. Homesite Indemnity Co., 287 Neb. 48, 840 N.W.2d 885 (2013).
6
2 Warren Freedman, Freedman’s Richards on the Law of Insurance § 12:3
(6th ed. 1990).
7
Id. at 337.
 8
15 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 217:4
(2005).
9
Id., § 218:3.
10
See id., § 218:6.
11
See id.
12
See 8A John Alan Appleman & Jean Appleman, Insurance Law and
Practice § 4906 (1981).
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difficulty stems from the reality that a perfect commonality
of obligation does not exist in the real world:
Unfortunately, there is no uniformity as to the rules of
apportionment and contribution since true concurrency
of policies never does exist. It is veritably impossible for
the insurance policies to relate to the same subject matter,
against the same risk, for the same insured or interest, and
at the identical time.13
[9] Moreover, because contribution lies in equity, there is
no definitive rule applicable in every case in light of varying
equitable considerations which may arise and which affect the
insured and the primary and excess carriers.14 Thus, in deter-
mining whether one insurer is entitled to contribution from
another, courts consider the nature of the claim, the relation of
the insured to the insurers, the particulars of each policy, and
any other equitable considerations.
1. Arguments
American Family and Regent compound the inherent dif-
ficulty with legions of changing arguments as to whether they
share a common obligation toward the guest’s settlement, how
to determine each parties’ share of the loss, and whether other
principles apply to bar contribution in this case. The most plen-
tiful arguments come from Regent.
Broadly, Regent believes it should have to pay nothing
toward the settlement that released Regent and its named
insured, NP Dodge—which indisputably had a primary policy
and an umbrella policy with Regent providing commercial gen-
eral liability and bodily injury coverage. In contrast, American
Family argues that its primary policy was liable for the first
$1 million of the settlement with the guest, but that the sec-
ond $1 million of the settlement should have been Regent’s
share of the obligation under Regent’s primary policy and that
their respective umbrella policies should have shared the last
$1.5 million in future payments pro rata.
13
2 Freedman, supra note 6, § 12:2 at 326.
14
Fire Ins. Exchange v. American States Ins., 39 Cal. App. 4th 653, 46 Cal.
Rptr. 2d 135 (1995).
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(a) Claims Adjuster
Correspondence
But we summarize with more particularity the evolution of
the parties’ theories, as each party accuses the other of raising
issues for the first time on appeal, and Regent asserts estoppel
based on early communications between the claims adjusters.
We begin with the internal and external correspondence of the
claims adjusters. We find this correspondence, for the most
part, vague.
It appears, especially in later communications, that Regent
relied on the management agreement to support its theory that
it was not liable to contribute toward any loss. Alternatively,
Regent thought it was an “excess carrier.” By the time of its
April 21, 2009, letter, Regent clearly explained to American
Family its belief that it was not liable to contribute toward
any loss until the total $6 million in coverage under both
the primary and umbrella policies with American Family
was exhausted.
American Family, in its early correspondence, seemed to
accept that under the hold harmless provision of the manage-
ment agreement, American Family would not be reimbursed
for legal fees incurred by its counsel in representation of
Beacon Hill and NP Dodge. Beyond that, it is unclear what
American Family meant when it wrote on December 18,
2006, “I do concur with your assessment regarding American
Family’s primary coverage of [NP Dodge].” We disagree with
Regent’s assessment that, through this statement, American
Family “expressly agreed with and stipulated to Regent’s
analysis, indicating that it would treat the American Family
policies, which provided $6 million in coverage, as primary
coverage.”15 By the time of the May 1, 2009, fax, which was
responding to Regent’s April 21 letter stating clearly for the
first time its position that it was not liable until $6 million was
exhausted, American Family more clearly stated its belief that
its primary policy was liable first, Regent’s primary policy was
second, then the umbrella policies would share the remaining
liability on a pro rata basis.
15
Brief for appellant at 23.
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44 288 NEBRASKA REPORTS
(b) Arguments Before
District Court
American Family’s contribution action before the district
court sought this same distribution of the shared obligation on
the settlement; i.e., American Family primary, Regent primary,
and American Family and Regent pro rata. The complaint
alleged that the American Family and Regent policies applied
to “at least one of the two defendants in the personal injury
case (Beacon Hill and [NP] Dodge), applied to the same risk
and loss, and applied to the same potential liability and expo-
sure.” American Family alleged it had borne more than its
share of the parties’ common obligation.
At the hearing on the parties’ cross-motions for summary
judgment, Regent no longer pressed any argument based on the
management agreement. Regent instead argued that American
Family’s December 18, 2006, response to Regent’s manage-
ment agreement theory estopped American Family from claim-
ing contribution.
Regent alternatively argued that a lack of privity barred
American Family’s claim. And, alternative to that, Regent
argued that both American Family policies were primary to
both Regent policies. Regent’s underlying theory as to why its
primary policy was secondary to American Family’s umbrella
policy is not clear from the record.
American Family apparently took the stance that sharing
either one or both the same entities jointly and severally liable
to the guest rendered a common obligation under the settle-
ment. And, as far as the record reflects, this underlying legal
contention was not a point of dispute. Regent did not argue
that as a matter of law, contribution is improper when only one
insured is common to the two insurers. In granting summary
judgment for American Family, the district court explicitly
reasoned that sharing the requisite common obligation does
not require that each insurer provided coverage to all the
same policyholders.
Although all the relevant policies were before the district
court, neither party asked the court to address whether Beacon
Hill, like Regent, was a coinsured under both the American
Family and Regent policies for the “same risk” involved in
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the guest’s action. And the court’s reasoning would have made
such determination unnecessary. Regent has never denied that
NP Dodge was a coinsured under both the American Family
and Regent policies for the “same risk.”
Neither Regent nor American Family asked the district court
to apportion the underlying fault of Beacon Hill and NP Dodge
for the guest’s injuries. Only as part of its estoppel argument
did Regent bemoan the fact that had it known American Family
was not covering the first $6 million, it would have taken more
action to differentiate NP Dodge’s liability from Beacon Hill.
The reason why Beacon Hill believed such apportionment of
fault mattered for purposes of the contribution action was not
fully clear.
The record reflects no argument by Regent that the district
court should consider as the parties’ common obligation only
one-half of the settlement amount. And Regent did not raise
before the district court any issues pertaining to Neb. Rev. Stat.
§ 25-21,185.10 (Reissue 2008).
(c) Arguments on Appeal
In this appeal, Regent continues to assert estoppel, but it
no longer alleges lack of privity as a defense to American
Family’s contribution action. Regent instead now argues that
there was no common obligation as a matter of law, because
the insurers did not insure all the same insureds. Regent
still does not dispute that it insured NP Dodge for the same
risk as NP Dodge was insured for with American Family,
but it now explicitly denies such concurrent coverage of
Beacon Hill.
Regent argues that there can be no contribution based
on the joint and several liability of separate insureds with
separate insurers. Alternatively, if there could be contribu-
tion based on joint and several liability, Regent argues that
under § 25-21,185.10, NP Dodge, and thus Regent, would be
jointly and severally liable only for economic damages, but
not noneconomic damages. Therefore, according to Regent,
no apportionment could be proper without allocation of fault
and allocation of economic versus noneconomic damages.
Furthermore, Regent argues that there can be no joint and
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46 288 NEBRASKA REPORTS
several liability if there is no liability and that “such liability
was never determined in the underlying litigation.”16
Regent argues further that if American Family and Regent
are concurrent insurers or otherwise liable in contribution
because they insure a joint tort-feasor, then only that share
of the total damages attributable to the fault of NP Dodge
is the common obligation for which it would owe contribu-
tion. Since American Family failed to present evidence upon
which the district court could have allocated the respective
fault of Beacon Hill and NP Dodge, Regent argues the court
should have granted summary judgment in Regent’s favor. At
the very least, Regent asks that we remand for an allocation
of fault or that we apportion liability upon only one-half of
the total settlement amount. Regent argues that the district
court’s order “forced Regent to pay part of Beacon Hill’s
share of the liability, even though Regent did not insure
Beacon Hill.”17
In response, American Family continues to assert that the
commonality of one insured—especially in the case of joint
and several liability with the other insured—satisfies the com-
mon obligation element of contribution. American Family alter-
natively asserts that Beacon Hill is, in fact, a coinsured under
all the policies at issue. American Family argues that fault is
normally not the appropriate measure of apportionment of the
common obligation; rather, one looks primarily to the policies
to evaluate the extent of the respective insurer’s obligations.
American Family gives numerous reasons why it believes there
is no merit to Regent’s estoppel argument.
Regent argues in its reply brief that we cannot consider
whether Beacon Hill was concurrently insured by both American
Family and Regent, because American Family did not argue
that point before the district court. We ordered supplemental
briefing on the issue of whether Beacon Hill was a coinsured
under all policies. This spurred an astounding number of new
arguments regarding Regent’s coverage of Beacon Hill.
16
Id. at 16.
17
Reply brief for appellant at 1.
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To summarize these arguments, Regent asserts that Beacon
Hill was not insured under its umbrella policy, because there
was no “additional insured endorsement” in that policy. As to
its primary policy, Regent argues that Beacon Hill is covered
only for claims arising out of NP Dodge’s work on premises
NP Dodge owns, rents, leases, or occupies. Therefore, Beacon
Hill was not covered for the “same risk” as its coverage with
American Family. Furthermore, Regent points to the cov-
erage limitations in the additional insured endorsement and
argues that NP Dodge did not own, rent, lease, or occupy the
Beacon Hill premises and that the accident did not arise out
of NP Dodge’s work. Regent further asserts that Beacon Hill
was not covered under the Regent policy for the “same risk,”
because the additional insured endorsement stated that the pri-
mary policy’s coverage of the additional insured was “excess.”
Finally, Regent argues that the professional services exclusion
applies to bar all coverage of Beacon Hill for the guest’s acci-
dent. American Family makes several arguments denying these
claims and explaining why it believes that Beacon Hill is a
coinsured for the same risk under both Regent’s and American
Family’s primary and umbrella policies.
We find that the decisive issues in this case may be deter-
mined as a matter of law. Therefore, summary judgment was
appropriate. For the reasons further described below, we affirm
the district court’s determination that contribution can be had
between these two insurers who share a common insured. We
find that the specific allocation of that shared obligation is a
matter of equity, and in our de novo review of that determina-
tion, we agree with the district court’s division based on the
other insurance provisions of the respective policies. Viewing
the record in a light most favorable to Regent, we find no dis-
pute of fact that would change those conclusions.
2. Subrogation Issues for Joint
Tort-Feasors Versus
Joint Insureds
Regent is correct that some contribution cases under the first
kind of contribution, on the basis of joint tort-feasor liability,
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48 288 NEBRASKA REPORTS
apply subrogation principles.18 Sometimes called “reimburse-
ment by subrogation” actions,19 apportionment in such joint
tort-feasor contribution actions may be dependent upon the
tort-feasors’ respective fault.20 Other questions as well, such as
the ability to directly sue the tort-feasor’s insurer21 or the appli-
cability of a joint tort-feasor statute, may arise.22
Such joint tort-feasor contribution actions are rare. We
note that in at least one case where contribution was based
solely on the joint and several liability of separate insur-
ers, the court apportioned the loss in the same manner as
would be done between concurrent insurers, dispensing with
any explicit apportionment of fault or other subrogation-
type issues.23
[10] The right of equitable contribution under the second
circumstance—between concurrent insurers—is not in any way
based on principles of subrogation to the rights of the insured
against the party legally responsible.24 The insurer seeking
indemnification against a concurrent insurer does so entirely in
its own right.25
[11] The inquiry between concurrent insurers is simply
whether, under its policy with the insured, the nonparticipating
18
U. S. Fire Ins. v. State Farm Ins., 246 Ark. 1269, 441 S.W.2d 787 (1969);
Reliance v. General Star Indem. Co., 72 Cal. App. 4th 1063, 85 Cal.
Rptr. 2d 627 (1999); 2 Allan D. Windt, Insurance Claims & Disputes:
Representation of Insurance Companies and Insureds § 7:1 (6th ed. 2013).
19
Reliance v. General Star Indem. Co., supra note 18.
20
See, Fire Ins. Exchange v. American States Ins., supra note 14; American
States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 545
P.2d 399 (1976).
21
See Royal Ind. Co. v. Aetna Cas. & Sur. Co., supra note 1.
22
See, generally, 15 Russ & Segalla, supra note 8, §§ 218:33 and 218:37.
23
See Fire Ins. Exchange v. American States Ins., supra note 14. But see,
U. S. Fire Ins. v. State Farm Ins., supra note 18; American States Ins. Co.
v. Hartford Accident & Indemnity Co., supra note 20.
24
See Fireman’s Fund Ins. Co. v. Maryland Cas. Co., 65 Cal. App. 4th 1279,
77 Cal. Rptr. 2d 296 (1998).
25
15 Russ & Segalla, supra note 8, § 217:5.
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coinsurer had a legal obligation to provide a defense or indem-
nity coverage for the claim or action prior to the date of the
settlement.26 In this sense, equity provides no right for an
insurer to seek contribution from another insurer who has no
obligation to the insured.27 Further, an insurer will normally
be compelled to contribute no more than the limits fixed in
its policy.28 Nevertheless, contribution in a concurrent insurer
scenario is a right of the insurer flowing from equitable prin-
ciples designed to accomplish ultimate justice in the bearing
of a specific burden.29 It is a right independent of the rights of
the insured.30
[12] There is therefore little question that liability for the loss
among concurrent insurers should be allocated without regard
to comparative fault or other subrogation-related questions
such as lack of privity or the applicability of a contribution-
among-joint tort-feasors statute.31 Such questions are irrelevant
to the underlying contractual obligations for a covered occur-
rence.32 Moreover, a contribution rule based on apportionment
of fault “would hamper settlements and require the defendant
to prove its own fault before the defendant’s insurer could seek
equitable contribution.”33
The only case in Nebraska concerning a concurrent insured
is State Farm Mut. Auto. Ins. Co. v. Union Ins. Co.34 The
driver who was involved in an accident with a deer was
covered under both his father’s automobile insurance and
26
Mutual of Enumclaw Ins. Co. v. USF Ins. Co., 164 Wash. 2d 411, 191 P.3d
866 (2008).
27
Id.
28
16 Mark S. Rhodes, Couch Cyclopedia of Insurance Law § 62:15 (1983).
29
Mutual of Enumclaw Ins. Co. v. USF Ins. Co., supra note 26.
30
Id.
31
See Fireman’s Fund Ins. Co. v. Maryland Cas. Co., supra note 24.
32
Fire Ins. Exchange v. American States Ins., supra note 14.
33
Id. at 663, 46 Cal. Rptr. 2d at 140.
34
State Farm Mut. Auto. Ins. Co. v. Union Ins. Co., 181 Neb. 253, 147
N.W.2d 760 (1967).
Nebraska Advance Sheets
50 288 NEBRASKA REPORTS
the automobile insurance of the parties in possession of the
­
vehicle, which had been loaned to them by a repair shop, and
who gave the driver permission to use the vehicle. One insurer
paid the damages resulting from the collision and sought to
recover from the other insurer one-half of the sums paid. Both
policies had excess insurance clauses. We held that the excess
insurance clauses were mutually repugnant, explaining, “If lit-
eral effect were given to the clauses in both policies, the result
would be that neither policy covered the loss, and thus produce
an unintended absurdity.”35 We observed that the parties failed
to present evidence as to the exact amount of coverage of each
policy or of the premiums paid, upon which pro rata apportion-
ment could have been made. “In any event,” we concluded
that “where both companies stand on an equal footing, equity
requires an equal apportionment of the loss.”36
3. Concurrent Insurer Analysis
in Hybrid Scenario
The parties’ apparent confusion in this case is perhaps
understandable. For if we were to accept Regent’s contention
that Beacon Hill is not insured under the respective American
Family and Regent policies for the “same risk,” then this is
a hybrid of the two kinds of contribution: (1) an insurer of a
joint tort-feasor which has paid all, or greater than its share, of
a loss and (2) a single insured which is covered by concurrent
or “double” insurance, and one insurer paid all, or greater than
its share, of a loss.
We have not addressed a situation where some, but possibly
not all the insureds, are covered for the same risk. And legal
authorities fail to explain whether insuring the “same entities”
for purposes of a concurrent insurer analysis means ensuring
all of the same entities, as Regent assumes.
But a handful of cases have considered this question. In the
majority of those cases, at least where the insureds are also joint
tort-feasors, courts have found the settlement determinative of
35
Id. at 258, 147 N.W.2d at 763.
36
Id. at 259, 147 N.W.2d at 763.
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the insureds’ liability and have apportioned the contribution
in accordance with set principles applicable to the policies’
other insurance provisions.37 In other words, these courts apply
a concurrent insurer analysis to hybrid facts. The respective
fault of the tort-feasors, contribution-among-joint tort-feasor
statutes, questions of privity, and so on, are not considered
relevant. These courts consider the entire loss caused by the
joint tort-feasors to be the joint obligation under the policies
in question.
Thus, in Towne Realty, Inc. v. Safeco Ins. Co. of America,38
one insurer covered both the apartment owner and the apart-
ment manager and two other insurers insured only the man-
ager. As in a standard concurrent insurer analysis, the court
looked simply to the policy language to determine liability
under the settlement that released the owner and manager
of their alleged joint and several liability. The court found
that the limits of the primary policy must first be exhausted,
then the primary policy with an escape clause, then the
umbrella policy.
Graphic Arts Mut. Ins. Co. v. Essex Ins. Co.39 similarly
presented a contribution action between an insurer of the apart-
ment owner and the insurer of both the owner and the manager.
As in a standard concurrent insurer situation, the court appor-
tioned the common obligation of the entire settlement amount
in accordance with the other insurance provisions of the poli-
cies. The court specifically rejected the argument that doing
37
See, Towne Realty, Inc. v. Safeco Ins. Co. of America, 854 F.2d 1264 (11th
Cir. 1988); Graphic Arts Mut. Ins. Co. v. Essex Ins. Co., 465 F. Supp. 2d
1290 (N.D. Ga. 2006); Ariz. Jt. Underwriting Plan v. Glacier, Etc., 129
Ariz. 351, 631 P.2d 133 (Ariz. App. 1981), disapproved on other grounds,
National Indemn. Co. v. St. Paul Ins. Companies, 150 Ariz. 458, 724 P.2d
544 (1986). See, also, Nationwide Mut. Ins. Co. v. Hall, 643 So. 2d 551
(Ala. 1994); Home Ins. Co. v. Cincinnati Ins. Co., 213 Ill. 2d 307, 821
N.E.2d 269, 290 Ill. Dec. 218 (2004); American States Ins. Co. v. CFM
Const. Co., 398 Ill. App. 3d 994, 923 N.E.2d 299, 337 Ill. Dec. 740
(2010);. But see MIC Property and Cas. v. International Ins. Co., 990 F.2d
573 (10th Cir. 1993).
38
Towne Realty, Inc. v. Safeco Ins. Co. of America, supra note 37.
39
Graphic Arts Mut. Ins. Co. v. Essex Ins. Co., supra note 37.
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so would require the owner’s insurer to contribute toward the
manager’s indemnity and defense. The court refused to “specu-
late and assume what the allocation of liability would have
been had the case not settled.”40
In Ariz. Jt. Underwriting Plan v. Glacier, Etc.,41 two insur-
ers (one providing primary coverage and the other providing
umbrella coverage) insured the physicians, their practice, and
the nurse, who were all sued by the injured patient as joint
tort-feasors. Those two policies paid a settlement with the
patient. But the nurse, individually, also had a primary liabil-
ity policy. The court affirmed that the nurse’s insurer should
pay its policy limits in contribution to the other two insurers.
The court reasoned that the question of the nurse’s underly-
ing liability had been resolved by the settlement; the nurse’s
insurer knew of the litigation and chose not to participate. And
contribution was proper because “[t]he interest, as well as the
risk and subject matter of the policies, were identical as to
[the nurse].”42 “[W]here all three insurers were liable in some
degree to pay the judgment and only two insurers satisfied it,
the parties wrongfully compelled to pay the loss are entitled
to contribution from the one who paid nothing.”43 It would
be a “windfall” to the nurse’s primary insurer to pay noth-
ing “merely because a fellow primary insurer had additional
excess coverage.”44
We agree with this line of cases that a traditional concur-
rent insurer contribution analysis based on the policy language
may be appropriate regardless of whether all insurers cover all
the same entities. And we find that under the undisputed facts
presented, the equities make such a policy-based, concurrent
insurer apportionment appropriate here. NP Dodge’s liability
for the guest’s injuries was conclusively determined by the
40
Id. at 1299.
41
Ariz. Jt. Underwriting Plan v. Glacier, Etc., supra note 37.
42
Id. at 352, 631 P.2d at 134.
43
Id. at 353, 631 P.2d at 135.
44
Id. at 354, 631 P.2d at 136.
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settlement, and any disputed allocation of fault within that
liability is irrelevant.
4. Beacon Hill
as Coinsured
In reaching this conclusion, we need not fully wade through
the quagmire of arguments concerning whether Beacon Hill
was, in all respects, covered for the “same risk” under both
Regent’s and American Family’s policies. Yet, we cannot
ignore that the policies before us establish as a matter of law
that Beacon Hill was in some capacity also a coinsured under
all the policies in question. This is properly part of our equity
analysis that considers the nature of the claim, the relation of
the insured to the insurers, the particulars of each policy, and
any other equitable considerations.
Given Regent’s own shifting theories, we have little sym-
pathy for Regent’s argument that we should take no notice of
Beacon Hill’s coverage under any Regent policy because it was
not argued below. In any case, this issue was broadly presented
by American Family’s complaint for contribution and through
its presentation of the policies to the district court.
Regent does not deny that, pursuant to the management
agreement, Beacon Hill fell under Regent’s primary policy
definition of an additional insured, being “[a]ny person or
organization whom you are required to add as an additional
insured on this policy under a writer contract or agree-
ment . . . .”
We find no merit to Regent’s argument that Beacon Hill was
not an additional insured under the umbrella policy because
there was no “additional insured endorsement” in that policy.
The umbrella policy stated that it covered “[a]ny person or
organization who is an additional insured in the ‘underly-
ing insurance.’”
We also find no merit to Regent’s argument that Beacon Hill
cannot be considered a coinsured because it did not tender its
defense to Regent. In none of the cases cited by Regent did
the insurer seeking to deny contribution have actual notice
of the underlying litigation and hire independent counsel to
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monitor that litigation.45 Moreover, the case law cited by
Regent is based in the “‘selective tender’ rule,”46 which seeks
to honor the insured’s right to knowingly forgo the insurer’s
assistance.47 There is no evidence that Beacon Hill made such
a selective tender here.
We reject any argument by Regent pertaining to its coverage
of Beacon Hill that asks this court to relitigate the fault of the
parties discharged in the settlement. And, as will be discussed
further below, Regent’s excess clause under the additional
insured endorsement does not convert the primary coverage
into umbrella coverage, and, therefore, into coverage for a dif-
ferent risk.
But, for purposes of this opinion, we need not analyze the
arguments surrounding Regent’s additional insured coverage
limitation that the accident arise out of NP Dodge’s work or
on premises occupied by NP Dodge. And we do not decide
whether the professional services exclusion applied. It is suf-
ficient for our purposes here to note that absent a successful
argument that such coverage limitation or professional serv­
ices exclusion applied, Regent would have been liable under
its coverage of Beacon Hill for the guest’s entire loss, up to
the policy limits, had Beacon Hill and NP Dodge selectively
tendered their defense to Regent or had American Family
gone defunct. These coverage limitations and exclusion,
added by Regent to its rather complicated additional insured
endorsement, are a particularly weak basis for Regent’s argu-
ments that as a matter of law there is no joint obligation, or
that it is inequitably being asked to pay Beacon Hill’s share
of liability.
45
See, Casualty Indem. Ins. v. Liberty Nat. Fire Ins. Co., 902 F. Supp. 1235
(D. Mont. 1995); John Burns Const. Co. v. Indiana Ins. Co., 189 Ill.
2d 570, 727 N.E.2d 211, 244 Ill. Dec. 912 (2000); Chicago Hosp. Risk
Pooling Program v. ISMIE, 397 Ill. App. 3d 512, 925 N.E.2d 1216, 339
Ill. Dec. 95 (2010); Mutual of Enumclaw Ins. Co. v. USF Ins. Co., supra
note 26.
46
Mutual of Enumclaw Ins. Co. v. USF Ins. Co., supra note 26, 164 Wash.
2d at 417, 191 P.3d at 871.
47
John Burns Const. Co. v. Indiana Ins. Co., supra note 45; Mutual of
Enumclaw Ins. Co. v. USF Ins. Co., supra note 26.
Nebraska Advance Sheets
AMERICAN FAMILY MUT. INS. CO. v. REGENT INS. CO. 55
Cite as 288 Neb. 25
Most important to our analysis, however, is that even with-
out Beacon Hill as an insured under Regent’s policy, Regent
could have been liable for the entire amount of the guest’s
loss up to its policy limits by virtue of its coverage of
NP Dodge. NP Dodge paid significant premiums to Regent in
order to cover the kind of occurrence alleged by the guest and
conclusively determined by the underlying settlement, which
Regent closely monitored at every stage. Because NP Dodge
was undisputedly a coinsured for the same risk under all the
policies, and the only other entity, Beacon Hill, was jointly
and severally liable with NP Dodge, and was additionally a
c
­ oinsured under all the policies for at least some risks, there is
certainly no inequity in apportioning liability under a concur-
rent insurer analysis.
5. No Estoppel
We find no merit to Regent’s argument that American Family
is estopped from claiming contribution. Six elements must be
satisfied for the doctrine of equitable estoppel to apply: (1) con-
duct which amounts to a false representation or concealment of
material facts or, at least, which is calculated to convey the
impression that the facts are otherwise than, and inconsistent
with, those which the party subsequently attempts to assert; (2)
the intention, or at least the expectation, that such conduct will
be acted upon by, or influence, the other party or other persons;
(3) knowledge, actual or constructive, of the real facts; (4) lack
of knowledge and the means of knowledge of the truth as to
the facts in question; (5) reliance, in good faith, upon the con-
duct or statements of the party to be estopped; and (6) action
or inaction based thereon of such a character as to change the
position or status of the party claiming the estoppel.48
Regent’s estoppel claim is based entirely on the claims
adjuster communications that are in the record. Even view-
ing this evidence in the light most favorable to Regent, we
do not find any of these elements have been met. Most
fundamentally, we find no clear representation by American
48
Becton, Dickinson & Co. v. Nebraska Dept. of Rev., 276 Neb. 640, 756
N.W.2d 280 (2008).
Nebraska Advance Sheets
56 288 NEBRASKA REPORTS
Family’s claims adjuster that American Family conceded
Regent’s policy would not be liable on the guest’s claim until
both the American Family primary and umbrella policies were
exhausted. The communications between the claims adjusters
seem focused on sharing the immediate defense costs, rather
than the ultimate apportionment of any settlement. It was wish-
ful thinking for Regent to interpret American Family’s state-
ment in the December 18, 2006, letter, “I do concur with your
assessment regarding American Family’s primary coverage of
[NP Dodge],” as a concession that both American Family’s pri-
mary policy and its umbrella policy would come first.
This is especially true in light of the almost incomprehensible
letter by Regent, sent October 30, 2006, which the December
18 letter was responding to. And we note that the statements in
Regent’s October 30 letter, which induced American Family’s
alleged concession, were always internally viewed by Regent
with skepticism and have since been abandoned.
6. Application of Concurrent
Insurer Analysis in
This Case
[13-15] We turn now to the policies in question to determine
the proper apportionment of Regent’s and American Family’s
common obligation as concurrent insurers. For coverage to be
concurrent for purposes of contribution, it must be at the same
level—primary to primary or excess to excess.49 Furthermore,
the loss between the primary insurers should be apportioned
before considering the excess insurers’ exposure.50 Among pol-
icies at the same level, absent compelling equitable reasons,
courts should not impose an obligation on an insurer that
contravenes a provision in its insurance policy.51 In particular,
where two carriers have responsibility for a claim, the other
insurance clause of each policy must be examined to determine
49
See, e.g., 2 Windt, supra note 18, § 7:4.
50
See id., § 7:5. See, also, St. Paul Mercury Ins. Co. v. Lexington Ins. Co.,
78 F.3d 202 (5th Cir. 1996).
51
OneBeacon Amer. Ins. Co. v. Fireman’s Fund Ins., 175 Cal. App. 4th 183,
95 Cal. Rptr. 3d 808 (2009).
Nebraska Advance Sheets
AMERICAN FAMILY MUT. INS. CO. v. REGENT INS. CO. 57
Cite as 288 Neb. 25
whether there exists language which may govern the contribu-
tion each party should make.52
(a) Which Policies Are Primary
and Which Are Umbrella
In arguing that both its policies come after the $6 million in
coverage under American Family’s policies, Regent is essen-
tially arguing that the excess insurance clause of its primary
policy transforms that policy into an umbrella policy. We find
no merit to this argument.
[16] A true excess insurance policy is one providing cover-
age conditioned upon the existence of a primary policy, which
coverage does not begin until a loss exceeds a stated level.53
Furthermore, in general, umbrella policy premiums are rela-
tively small in relation to the amount of risk.54 In addition to
the language of the policies themselves, the $144,403 premium
compared to the $22,522 make it clear which Regent policy
was the primary policy and which was the umbrella policy.
[17] We agree with the majority of jurisdictions that hold
that umbrella policies, as the only true excess insurance
policies, incur liability only after the exhaustion of all other
policies, including primary policies containing excess insur-
ance clauses.55 In other words, there is a difference between
52
Universal Underwriters v. CNA Ins., 308 N.J. Super. 415, 706 A.2d 217
(1998).
53
15 Russ & Segalla, supra note 8, § 219:24.
54
Id., § 220:32.
55
Michael E. DeFao, Topical Survey of Rhode Island, Insurance—
Determining Payment Priority Among Multiple Insurers Claiming Only
Excess Liability—Liberty Mutual Insurance Co. v. Harbor Insurance Co.,
603 A.2d 300 (R.I. 1992), 27 Suffolk U. L. Rev. 551 (1993). See, also,
Allstate Ins. Co. v. American Hardware Mut. Ins. Co., 865 F.2d 592 (4th
Cir. 1989); Towne Realty, Inc. v. Safeco Ins. Co. of America, supra note
37; Allstate Ins. Co. v. Employers Liability Assur. Corp., 445 F.2d 1278
(5th Cir. 1971); Allstate Ins. Co. v. Executive Car and Truck, 494 So. 2d
487 (Fla. 1986); U.S. Fire Ins. v. Maryland Cas., 52 Md. App. 269, 447
A.2d 896 (1982); Pru. Prop. Cas. Ins. Co. v. New Hamp. Ins. Co., 164
N.J. Super. 184, 395 A.2d 923 (1978); NFU v. Farm and City Ins. Co.,
689 N.W.2d 619 (S.D. 2004); 8A Appleman & Appleman, supra note 12,
§ 4909.85 (Cum. Supp. 2009); 15 Russ & Segalla, supra note 8, § 218:13.
Nebraska Advance Sheets
58 288 NEBRASKA REPORTS
a true excess policy providing coverage conditioned upon
the existence of a primary policy, which coverage does not
begin until a loss exceeds a stated level, and a primary policy
with devices by which the primary insurer attempts to limit
or eliminate its liability where another primary policy covers
the risk.56 We conclude that the American Family and Regent
primary policies were at the same level for purposes of con-
tribution. We thus look to the other insurance clauses of those
policies to determine contribution between them.
(b) Primary Policies
As to NP Dodge, there are compatible pro rata other insur-
ance clauses for the concurrent Regent primary policies. As
to Beacon Hill, however, there is American Family’s pro rata
other insurance clause versus Regent’s excess other insur-
ance clause.
That is a unique circumstance. Since our concurrency analy-
sis rests primarily with the concurrency of NP Dodge alone, it
is perhaps most proper to apply the compatible pro rata other
insurance clauses. On the other hand, American Family has
always conceded that its primary policy came “first” before
Regent’s primary policy. This is essentially a concession to
American Family’s excess other insurance clause.
American Family is correct that this is purely an academic
question. Regardless of which excess insurance clauses we
apply, the result in this case would be the same.
[18] Where an excess clause and a pro rata clause appear in
concurrently effective policies, the pro rata clause is usually
disregarded and full effect is given to the excess clause, mak-
ing the pro rata policy the primary insurance.57 If we were to
apply this principle here, then Regent’s comprehensive policy
would be excess to American Family’s business owner’s pack-
age policy. However, the guest’s loss exceeded the limits of
either primary policy and they each have the same limit of
56
15 Russ & Segalla, supra note 8, §§ 219:24 and 220:33.
57
Id., § 219:51. See, also, e.g., Schal Bovis, Inc. v. Casualty Ins. Co., 315
Ill. App. 3d 353, 732 N.E.2d 1179, 247 Ill. Dec. 847 (2000). But see, e.g.,
Fireman’s Fund Ins. Co. v. Maryland Cas. Co., supra note 24.
Nebraska Advance Sheets
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Cite as 288 Neb. 25
$1 million. Therefore, each must contribute $1 million even if
Regent’s primary policy is considered “excess” to American
Family’s primary policy.
If we were to instead apply the pro rata clauses, American
Family and Regent would likewise each have to contribute
$1 million. Each having the same policy limits, their pro rata
shares of the total loss up to their combined policy limits
would have been equal.
Thus, under either theory, we conclude that the district
court’s distribution of the common liability of the primary poli-
cies was correct.
(c) Umbrella Policies
[19] There were competing excess other insurance clauses
in the two umbrella policies. The interaction of two or more
policies containing excess insurance clauses creates circularity
and could provide a windfall to whichever insurer’s policy is
read first.58 Thus, the rule adopted by the majority of jurisdic-
tions, and by this court in State Farm Mut. Auto. Ins. Co. v.
Union Ins. Co., is that the excess insurance clauses are mutu-
ally repugnant and that the liability should be shared by the
insurers pro rata in the proportion that their respective policy
limits bear to the entire loss.59
While in State Farm Mut. Auto. Ins. Co. v. Union Ins. Co.,
we apportioned the loss equally between the two insurers
without regard to policy limits, the policy limits were not in
the record in that case. The district court in this case had the
58
See, e.g., State Farm Mut. Auto. Ins. Co. v. Bogart, 149 Ariz. 145, 717 P.2d
449 (1986) (superseded by statute as stated in Consolidated Enterprises v.
Schwindt, 171 Ariz. 452, 831 P.2d 828 (1991)); Planet Ins. Co. v. Ertz, 920
S.W.2d 591 (Mo. App. 1996); 8A Appleman & Appleman, supra note 12,
§ 4909 (Cum. Supp. 2009); Steven Plitt, The Claim Adjuster’s Automobile
Liability Handbook § 3:2 (2012), available at Westlaw CAALH.
59
See, Polenz v. Farm Bureau Ins. Co., 227 Neb. 703, 419 N.W.2d 677
(1988); State Farm Mut. Auto. Ins. Co. v. Union Ins. Co., supra note 34.
See, also, State Farm Mut. Auto. Ins. Co. v. Bogart, supra note 58; Planet
Ins. Co. v. Ertz, supra note 58; 8A Appleman & Appleman, supra note 12,
§ 4909 (Cum. Supp. 2009); 15 Russ & Segalla, supra note 8, §§ 217:9,
217:11, and 219:47; Plitt, supra note 58. See, also, Annot., 12 A.L.R. 4th
993 (1982).
Nebraska Advance Sheets
60 288 NEBRASKA REPORTS
policy limits before it and was therefore able to divide pro
rata the loss that remained after exhaustion of the two pri-
mary policies. Thus, Regent, under its umbrella policy, was
liable in contribution to American Family for four-ninths of
the cost of payments made and to be made to the guest under
American Family’s umbrella policy. We find that apportion-
ment was correct.
VI. CONCLUSION
For all the reasons stated above, we agree with the district
court’s apportionment of the common obligation toward the
guest’s settlement. We affirm the district court’s order granting
summary judgment in favor of American Family.
Affirmed.