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03/31/95 FEDERAL INSURANCE COMPANY v. ST. PAUL FIRE

March 31, 1995

FEDERAL INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
ST. PAUL FIRE AND MARINE INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable John N. Hourihane, Judge Presiding.

Rehearing Denied May 18, 1995. Released for Publication May 26, 1995.

Presiding Justice Greiman delivered the opinion of the court: Tully, J., and Cerda, J., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

In a dispute between two insurance companies regarding their respective liability, plaintiff Federal Insurance Company (Federal) appeals the trial court's apportionment between Federal and defendant St. Paul Fire and Marine Insurance Company (St. Paul).

The issue on appeal is whether an excess and a primary insurer must share liability on a pro rata basis where the excess insurance policy identifies by name another company issuing a primary policy to which the excess policy relates.

We affirm and find that an excess insurance policy which specifically names the underlying policy to which it relates and makes no general reference to other policies operates as an excess policy only to the named primary carrier and not to any other primary policy which covers the insured.

The facts are not in dispute. Three insurance companies share liability for a $1.7 million settlement in the underlying action where Tracy Swider alleged that she sustained injuries while a patient in the emergency room at Holy Cross Hospital. Swider filed a complaint against Physician's Emergency Room Consulting Organization, Ltd. (a medical corporation referred to as PERCO) which provided emergency room physicians to the hospital and against Dr. Jose Parisi who treated and diagnosed Swider. In May 1992 Swider's case was settled for $1.7 million and payments were made by three insurance companies, each of which insured Dr. Parisi.

At the time of settlement, the three insurers contributed the following payments:

Employers/Commercial Union $100,000

St. Paul $800,000

Federal $800,000

Employers Fire Insurance Company (Employers), also known as Commercial Union Insurance Company, issued to Dr. Parisi a professional liability policy which provided primary insurance liability coverage for $100,000 per claim. In accordance with this policy, Employers paid $100,000 in the Swider action and is not involved in the instant appeal.

Employers' policy contains an "other insurance" clause which designates this policy as primary insurance and that its liability is not reduced by the existence of an excess policy. The remaining portion of this clause provides for contribution with other carriers in equal proportionate shares if the policies so provide or contribution by limits of liability in the policies which do not so specifically provide.

Second, Federal issued an excess professional liability policy to Dr. Parisi and its policy limits were $1 million in excess of $100,000 for each claim. Federal's policy, entitled "Excess Professional," provides:

"IV. LIMIT OF LIABILITY

The company's limit of liability is $1,000,000 [for] each claim but not exceeding $1,000,000 during each annual period commencing on the effective date of this policy, in excess of $100,000 [for] each claim $300,000 aggregate of the following policy, or that portion of the following policy ...


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