Low, Ball & Lynch’s

WEEKLY LAW RESUME

December 2, 2004 Issue   By: Mark Hazelwood

Insurance - Priority of Coverage - Tractor and Leased Trailer Policies

Wilshire Insurance Co. Inc. v. Sentry Select Insurance Company

Court of Appeal, Fourth District

(November 15, 2025)

 

This case involves an interpretation of California Insurance Code section 11580.9 in determining whether tractor and leased trailer policies should provide primary or excess coverage following a motor vehicle accident.

In July 1999, Ken Holm, dba Kenway Enterprises, was driving a Kenworth tractor hauling a Great Dane semi-trailer. The tractor-trailer rig was involved in a serious accident in Southern California which caused bodily injury and death.  A wrongful death action was filed in Orange County Superior Court against Kenway, as owner of the tractor, and Statewide Transportation, the owner of the trailer.

At the time of the accident, Wilshire Insurance Co. insured Kenway and Sentry Select Insurance Co. insured Statewide.  During the course of litigation, Wilshire demanded that Sentry share in the costs of litigation and contribute to settlement. Sentry refused to do so. Kenway undertook the defense of both Kenway and Statewide,  reserving its right to seek a pro rata contribution from Sentry. After expending over $43,000 in attorneys fees and costs, Wilshire proceeded to settle the wrongful death action for $210,000. Wilshire then filed a declaratory relief action and brought a motion for summary judgment seeking one-half the expenses incurred by Wilshire in defending and settling the wrongful death case. Sentry, in turn, filed its own motion for summary judgment arguing that it provided only excess coverage for the accident, and was under no obligation to make a contribution.

The trial court granted Wilshire’s motion for summary judgment. On appeal, the Fourth Appellate District affirmed the trial court.  The Court noted that Kenway was hauling a load for Statewide under the terms of a written agreement. Pursuant to the agreement, Statewide leased the tractor from Kenway and hired a Kenway driver. In return, Kenway agreed to indemnify Statewide for all third party claims arising out of accidents.

To protect itself Kenway purchased the Wilshire policy with policy limits of $1 million. Statewide also had its own motor vehicle policy from Sentry, which provided up to $1 million in coverage for any driver hauling a Statewide trailer with Statewide’s permission. Kenway’s tractor was scheduled as an “owned” vehicle on the Wilshire policy, and Statewide’s trailer was scheduled as an “owned” vehicle on the Sentry policy.

The Wilshire policy contained an “other insurance” clause stating that Wilshire’s coverage would be primary where a covered vehicle (the tractor) was hired by another (Statewide) and Kenway was obligated by written agreement to hold harmless the lessee (Statewide).  The Wilshire policy also set forth, however, that if a covered trailer was connected to a covered tractor,  that coverage for both the trailer and the tractor would be primary.

The Sentry policy provided coverage for damages arising from use of the trailer. However, under the Sentry policy’s “other insurance” clause, where the covered trailer was connected to a tractor that was not covered under the Sentry policy,  the Sentry coverage would be excess.

The trial court and the Court of Appeal both agreed that Insurance Code section 11580.9 applied to the facts of this case. Section 11580.9 was created by the California Legislature to deal with conflicts among insurers as to whether various policies are primary or excess. Under section 11580.9(d), “Where two or more policies affording valid and collectible liability insurance apply to the same motor vehicle or vehicles in an occurrence out of which a liability loss shall arise, it shall be conclusively presumed that the insurance afforded by that policy in which the motor vehicle is described or rated as an owned automobile shall be primary and the insurance afforded by any other policy or policies shall be excess.” 

The Court of Appeal found that both the Wilshire and Sentry policies afforded valid and collectible insurance. The Court further reasoned that California law is clear that a truck tractor hauling a trailer is treated as a single motor vehicle. Thus, insurance policies covering the tractor and the trailer respectively applied to the “same motor vehicle.”  In addition, as the parties stipulated in their motions, the tractor and the trailer were both described in the respective policies as “owned” vehicles. Therefore, each policy, pursuant to section 11580.9(d), was conclusively presumed to be primary. The Court held that each insurer had an equal obligation to contribute to the loss.

Sentry argued that co-primary coverage is contrary to the public policy of determining an order of coverage. The Court of Appeal disagreed holding that there is nothing in the statute that prohibits an equal ranking of the policies. While Sentry had an equitable argument that its insured was not getting what it bargained for (excess coverage), the Legislature’s conclusive presumption (contained in section 11580.9) regarding the priority of coverage must take precedence. Wilshire’s summary judgment was therefore affirmed, and Sentry was ordered to pay one-half of Wilshire’s costs and fees in resolving the underlying wrongful death action.

 

Comment

The Fourth Appellate district commented on the apparent inequity of the decision.  Even though Sentry contracted with its’ insured to only provide excess coverage, it was ordered to pay for half of the loss. The Court felt it was obligated , however, to follow the “bright line rule” set forth in section 11580.9.

 
Insurers and insureds dissatisfied with the operation of section 11580.9 can overcome the conclusive presumption by written agreement signed by all insurers who have issued policies for a loss and all named insureds. (Section 11580.9(f)). This process, however, is cumbersome. Insurers, such as Sentry, may also depend entirely on tractor owner coverage, by providing a “trucker’s endorsement” which eliminates all coverage when the trailer is towed by another. Finally, insurers can lobby to have section 11580.9 re-written.

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