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RENDERED:  NOVEMBER 18, 2010 TO BE PUBLISHED  
,;VUyrrUtr Courf of " 'Ptruf 2008-SC-000781-DG  
KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY  APPELLANT [OATE. A9. . .. v V  ~.  
V.  ON REVIEW FROM COURTOF APPEALS CASE NOS. 2007-CA-001078-MR; 2007-CA-001132-MR MONTGOMERY CIRCUITCOURTNO. 06-CI-90203  
SHELTER MUTUAL INSURANCE COMPANY  APPELLEE  
OPINION OF THECOURT BY JUSTICESCOTT  
REVERSING  
I. Introduction  
This is an appeal from an opinion of the Court ofAppeals reversing the Montgomery Circuit Court, which had imposed primary liability for a motor vehicle accident on the vehicle's and vehicle owner's insurer, rather than on the  
insurer of the permissive driver. Neither policy was for a business or commercial coverage. After paying the damages, the vehicle's and vehicle owner's insurer, Shelter Mutual Insurance Company (Shelter), filed a declaratoryjudgment action and subsequent motion for summaryjudgment against Kentucky Farm Bureau Mutual Insurance Company (Farm Bureau), the permissive driver's insurer, seeking to recover a pro-rata allocation of the damages between it and  

Farm Bureau. Farm Bureau filed a cross-motion for summaryjudgment
asserting Shelter's primary liability as the primary insurer of the vehicle and thus, Farm Bureau, with its "excess insurance clause," would be an excess carrier only.
The trial court granted Farm Bureau's cross-motion for summary judgment, holding Shelter liable for the damages. It did not, however, detail its findings or reasoning in its summaryjudgment order. The Court ofAppeals subsequently reversed, finding-as contended by Shelter-that each of the insurers' policies contained "mutually repugnant" excess insurance clauses, and thus prorated the damages between the insurers.
Because we find that Shelter, the vehicle's and vehicle owner's insurer, wasthe primary insurer as mandated by the spirit and intent of the Kentucky Motor Vehicle Reparations Act (MVRA), KRS 304.39-010, et. seq., we hold that the Courtof Appeals erred when it reversed the Montgomery Circuit Court and prorated the damages. We, therefore, reverse the decision of the Court of Appeals and reinstate the decision of the trial court.
"In substance, [an excess clause] provide[s] that in the case of a loss . . . the policy would be excess insurance over any other valid and collectible insurance." Government Emp. Ins. Co. v. GlobeIndem. Co., 415 S.W.2d 581, 581 (Ky. 1967). (internal citations omitted) . Compare this with astandard escape clause, which "in most instances . . . negat[es] any liability if `other valid and collectible insurance' is available to the driver." Id. at 582. On the other hand, a pro-rata clause "provides that if more than one policy applies, the insurer is responsible only for that percentof the total sumpayable that the limit ofliability of the coverage bears to the total limits ofliability under that coverage for all the policies." Robert D. Monfort, Kentucky Motor Vehicle InsuranceLaw

Download 2008-sc-000781-dg-1.pdf

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