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Show MONDAY. JULY 8. 1974 INTERMOUNTAIN COMMERCIAL RECORD In The Supreme Court Of The Globe Indemnity Company and Royal Indemnity Company, Plaintiffa and Respondents, No. 13443 Other Insurance: If the insured has other insurance against a loss covered by this policy The Western shall not be liable under this policy for greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss: Provided, however, the insurance under this policy shall be excess insurance over any other valid and collectible insurance with respect to (a) Loss arising out autoof the maintenance or use of any hired or mobile and (b) . 8. FILED June 28, 1974 Western Casualty It Surety Company, and Clinton H. Lundeberg and Carl N. Lundeberg, Defendants and Appellants. Allan E. Mecham, Clerk TUCKETT, Justice; ..... The defendants appeal from a summary judgment entered in the court below in favor of the plaintiffs. The defendants are here seeking a reversal. Reed F. Iverson had purchased a Chevrolet truck from Gordon Wilson Chevrolet. The truck was used in Iverson's service station business as well as a pleasure vehicle for himself and family. The truck was in need of repairs and Gordon Wilson Chevrolet picked up the truck and left a passenger automobile with Iverson for his use during the peViod the truck was undergoing repairs. Iverson gave permission to his daughter! Carol Ann, who was 17 years of age, to take the automobile for the purpose of going to a show with her boyfriend. Carol Ann drove to the home of her 'boyfriend, Carl Lundeberg. Carol requested Lundeberg to drive the automobile and thereafter they picked up another couple and continued on to the show. After the show, Carl continued to drive the automobile and after driving the other couple to their home and while on the way to Carl's home the automobile struck a pedestrian. At the time of the accident Clinton H. Lundeberg, father of Carl, had in effect a family automobile policy issued by Western Casualty fc Surety Company which covered the residents of the Lundeberg household. Globe Indemnity Company had in effect a garage liability policy covering any automobile used for business purposes and for certain purposes, issued to Reed Iverson. Royal Indemnity Company had a garage liability policy in force naming Gordon Wilson Chevrolet Company as the insured. non-busin- ess The defendant demanded of Royal Indemnity Company and Globe Indemnity Company that they defend the action brought on behalf of the boy injured in the accident. Royal and Globe refused to accept responsibility under their policies and thereafter Western undertook to defend the action which it later settled. Royal and Globe, the plaintiffs here, initiated these proceedings for the purpose of haying the court determine their responsibilities, if any, to defend the action against the Lundebergs and indemnify (i) .The applicable limit of the company's liability shall be the amount by which (1) the applicable minimum limit of liability for bodily injury or property damage specified in the financial responsibility law of the state in which the automobile is principally garaged exceeds (2) the sum of the applicable limits of liability under all other valid and collectible insurance available to the insured, and (ii) the insurance under this policy shall not apply to any loss with respect to which the insured has other valid and collectible insurance unless the total amount of the loss exceeds the sum of the limits of liability of all other policies affording such other insurance and the company shall then be liable, subject to clause (i) foregoing, only for the excess. Globe's policy contains the following provision: E. Other Insurance. If the insured has other insurance against loss to which this endorsement applies, the company shall not be liable under the policy for a greater proportion of such loss than the applicable limit of liability under the policy for such loss bears to the total applicable limit of liability of all valid and collectible insurance against such loss. The above provision shall not apply with respect to other insurance stated to be applicable to the loss only as excess insurance over any other valid and collectible" insurance or on a contingent basis. necessary that this court construe the provisions of the three policies issued by the parties. We a decision it is hereinafter set out what we consider to be the crucial provisions of each of the policies. Firstly the provisions of Western's policy: f The insured automobile is defined as: Owned automobile means: i private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coverage is afforded. r (a) A ; (b) A temporary substitute automobile; "temporary substitute automobile" means any automobile or trailer, not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, automoservicing, loss or destruction; bile" means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relatives, other than a temporary substitute automobile. "non-own- ed V. Ray Wilson and H. Wilson, Plaintiffs and Appellants, v. 13494 FILED June 28, 1974 Schnelter's Riverside Golf Course, Defendant and Respondent. TUCKETT. No. Allan E. Mecham, Clerk Justice: Western's policy provides "insurance under this policy shall be excess insurance over any other valid and collectible insurance. " Royal policy as well as the Globe policy provide coverage only if no other valid and collectible insurance is available. It appears that the plain language of the garage policies issued to Gordon Wilson Chevrolet and to Iverson provides only a limited coverage to pay only excess over other valid and collectible insurance. The language of the policies relieve the plaintiffs from any obligation to defend or to indemnify the Lundebergs. In view of our construction of the language of the policies we deem it unnecessary to consider the problem raised in the briefs concerning whether or not Carl Lundeberg had permission to drive the automobile under the terms of the policies dealing with the persons covered therein. The decision of the court below is affirmed, to costs. On March 19, 1965, the plaintiffs entered Into a real estate contract with one LI 1 lie Sherwood whereby they agreed to purchase a tract of unoccupied land. The contract and a warranty deed were deposited with an escrow. On April 9, 1965, the plaintiffs recorded a notice of their purchase 1n the County Recorder's office. The defendant had entered Into a real estate contract with Llllle Sherwood whereby they undertook to purchase a tract of land adjacent to that Involved 1n the Wilsons1 contract. There was an overlap 1n the descriptions of the property sold to the Wilsons and the defendant that affected 2.39 acres which Is the subject nutter of these proceedings. During November 1965 the defendant received Information of the plaintiffs' recorded notice of their purchase and thereafter paid off the balance due under Its purchase contract and recorded the deed from Llllle Sherwood. plaintiffs became aware of the defendant's claim of Respondents are entitled 1. Indiana Lumberman's Mutual Ins. Co. v. Mitchell, 409 Fed. 2d 392; Allstate Insurance Co. v. Shelby Mutual Insurance Co., 269 N. C. 341, 152 S. E. 2d 436; Government Employees Ins. Co. v. Lumberman's Mutual Cas. Co. . 269 N.C. 354, 152 S. E.2d 445; Faltersack v. Boogaard, 39 Wis. 2d 64, 158 N. W.2d 322; Appleman Insurance Law lr Practice, Vol. 8, Sec. 4914 p. 400. ownership. The plaintiffs continued to make the payments and 1n July' 1972 they paid the balance due under the contract. Plaintiffs were concerned that should they fall to make the payments their Interest 1n the property would be forfeited under the provisions of the contract. The trial court found that the plaintiffs were not bona fide purchasers for value Inasmuch as they had paid the balance due under their purchase contract after they had learned of defendant's claim of ownership of the tract of land In question. It should be noted that the defendant likewise paid off the balance due under Its contract after 1t had notice both actual and constructive of the claimed Interest of the plaintiffs. It would on equal thus appear that the claims of the plaintiffs and the defendant are footing. provisions of Section case and are herein set out: The The plaintiffs Initiated these proceedings In the district court seeking a decree quieting their title to certain land 1n Weber County. The defendant counterclalmed praying that the title to the disputed area be quieted In It. The trial court' found the Issues In favor of the defendant and ordered the title be quieted 1n the defendant. The plaintiffs are here seeking a reversal. In July 1970 the , Provided that with respect to a person described as insured under paragraph (3) (b) of Persons Insured and any person or organisation legally responsible for the use of the automobile by such person, other than the named insured and any person or organization described in paragraph (3) (a) of Persons Insured. them against loss. order to arrive at non-own- ed Royal's contains the following provision: c Norene State Of Utah The "Other Insurance" clause in Western's policy provides: v. In PAGE FIVE 57-3- -2, U.C.A. 1953, are governing 1n this Every conveyance, or Instrument 1n writing affecting real acknowledged or proved, and certified, In the manner prescribed by this title, and every patent to lands within this state duly executed and verified according to law, and every Judgment, order or decree of any court of record 1n this state, or a copy thereof, required by law to be recorded In the office of the county recorder shall, from the time of filing the same with the recorder for record, Impart notice to all persons of the contents thereof; and subsequent purchasers, mortgagees and Hen holders shall be deemed to purchase and take with notice. estate, executed, having recorded their notice of purchase prior to the recording of the defendant's deed, the defendant becomes the subsequent purchaser and 1s deemed to take with notice of the plaintiffs' Interest.1 The sufficiency of the notice recorded by the plaintiffs was not an Issue In the court below 1. Davis v. Ward 109 Cal. 166, 41 Pac. 1010; Beard V. Morgan 143 Neb. 503, 16 N.W.2d 253; Daniel v. Kensington Homes, Inc. 232 Md. 1, 192 A. 2d 114; 8 Thompson, Real Property, 1963 replacement. Sec. 4321, P. 415. (Continued page 6) and we do not deal with It here. Plaintiffs |