Fireman's Fund Insurance Co. v CNA Insurance Co.

Fireman's Fund Insurance Co. v. CNA Insurance Co. (2003-035); 177 Vt. 215;
862 A.2d 251

2004 VT 93

[Filed 17-Sep-2004]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2004 VT 93

                                No. 2003-035


  Fireman's Fund Insurance Company	         Supreme Court


                                                 On Appeal from
       v.	                                 Rutland Superior Court


  CNA Insurance Company and 	                 March Term, 2004
  Sumitomo Marine Management (USA), Inc.


  Richard W. Norton, J.

  Robert Reis, John C. Holler and Matthew D. Anderson of Webber, Reis, Holler
    & Urso, LLP, Rutland for Plaintiff-Appellant/Cross-Appellee.

  Kaveh S. Shahi of Cleary Shahi Associates, P.C., Rutland, for
    Defendant-Appellee/ Cross-Appellant CNA Insurance Co.

  William D. Riley of Paul Frank & Collins, Burlington, and Richard H.
    Nicolaides, Jr. and Nina    Markoutsis of Bates & Carey, Chicago, Illinois,
    for Defendant-Appellee Sumitomo Marine Management, Inc.

  PRESENT:  Amestoy, C.J., (FN1) Dooley, Johnson and Skoglund, JJ., and 
            Allen, C.J. (Ret.),  Specially Assigned

        
       ¶  1.  DOOLEY, J.  Plaintiff Fireman's Fund Insurance (Fireman's)
  appeals, and defendant CNA Insurance Company (CNA) cross-appeals, from a
  Rutland Superior Court order denying in part and granting in part the
  parties' motions for summary judgment.  In the superior court, Fireman's
  brought a declaratory judgment action to determine the priority of coverage
  for three insurance policies, issued respectively by Fireman's, CNA, and
  Sumitomo Marine Management (USA), Inc. (Sumitomo).  Each of the policies
  provides some degree of coverage for injuries resulting from the automobile
  accident that is the subject of several underlying lawsuits.  The accident
  involved two passenger vehicles and a tank tractor truck owned by Pouliot
  and Corriveau, Inc. (P&C) that was pulling a milk tank "pup" trailer leased
  from Agri-Mark, Inc. (AMI).  CNA (FN2) was the primary insurer for both P&C
  and its driver, Burton Heath, with Sumitomo providing a commercial excess
  umbrella policy for these insureds.  Fireman's was AMI's primary carrier. 
  Pursuant to the declaratory judgment action, the trial court found that
  Fireman's and CNA shared primary coverage responsibility for any claims
  against P&C, Heath, and AMI and that in the event that these two policies
  were exhausted, Sumitomo had coverage responsibility for any excess
  liability against the three parties.  We affirm in part, and reverse and
  remand in part. 

       ¶  2.  This case arises out of an automobile accident that occurred
  on June 1, 1997 on Route 7 near the village of Brandon.  On that date,
  Ronald Gilligan was driving south on Route 7 with his wife, daughter and
  his daughter's friend in the car.  Gilligan attempted to pass a minivan
  driven and occupied by members of the Clodgo family.  When Gilligan pulled
  into the northbound lane to pass, he ran head-on into the oncoming P&C
  truck, driven by P&C's employee Heath.  At the time of the accident, the
  truck was hauling a trailer owned by AMI and leased by P&C pursuant to an
  oral lease between the two parties.  All four occupants of the Gilligan
  vehicle were killed, and members of the Clodgo family were injured.  

       ¶  3.  After the accident, several lawsuits were filed against P&C,
  Heath, and AMI.  The suits claimed that Heath was negligent in the
  operation of the truck and that both P&C and AMI were responsible for his
  negligence under respondeat superior.  One suit against AMI, filed by the
  estate of a passenger in the Gilligan vehicle alleged that the "pup"
  trailer was unreasonably dangerous and not suitable for the purpose for
  which it was being used.  Gilligan's insurer paid out its policy limit of
  $300,000 which the various claimants shared.  Fireman's has been defending
  AMI in these suits, but has not defended or contributed to the defense of
  Heath or P&C.  Similarly, CNA has been defending Heath and P&C, but has not
  provided a defense for AMI.  The Clodgo family settled its action against
  Heath and P&C after these lawsuits were filed. (FN3)  The settlement
  agreement provides that if CNA is able to recover any sums from Fireman's
  for contribution or reimbursement, CNA will pay the Clodgos one-third of
  the recovery up to $25,000.

       ¶  4.  In the aggregate, significant policy coverage is available
  for satisfaction of any judgments or settlements that may result from the
  claims.  Both the CNA and Fireman's policies provide  $1 million of auto
  liability coverage, and Sumitomo's commercial excess umbrella policy has a
  limit of $2 million.  Our responsibility, as was the superior court's, is
  to establish the coverage priorities among the policies before us.  
   
       ¶  5.  All parties to the declaratory judgment action moved for
  summary judgment.  Fireman's urged the court to find that it is obligated
  to provide defense and indemnification for the insureds only upon the
  exhaustion of both the CNA and Sumitomo policies.  In contrast, CNA argued
  that it shares primary coverage with Fireman's for liability for P&C and 
  Heath, and that Fireman's alone provides coverage for AMI's liability. 
  Sumitomo, in turn, asserted that CNA and Fireman's are primary for P&C's
  and Heath's liability and that Fireman's is also primary for AMI's
  liability.  According to Sumitomo, it is obligated to provide coverage only
  for P&C and Heath, and only then after both CNA's and Fireman's policies
  are exhausted.  

       ¶  6.  After considering the parties' motions for summary judgment,
  the court issued an order and made the following rulings: (1) Sumitomo's
  motion was granted "insofar as the CNA and Fireman's policies must be
  exhausted before Sumitomo must contribute to the coverage of P&C, Heath and
  AMI," but was denied "insofar as it sought to avoid responsibility for
  claims arising from Heath and AMI"; (2) CNA's motion was granted "insofar
  as Fireman's must share primary responsibility for the P&C and Heath
  claims," but was denied "insofar as it sought to escape liability for
  claims arising from Heath and AMI liability;" and (3) Fireman's motion was
  granted "insofar as CNA must share primary responsibility with Fireman's
  for claims arising from P&C's, Heath's and AMI's liability," but denied
  "insofar as it sought to avoid primary responsibility for any claims."

       ¶  7.  Following the issuance of the order, Fireman's filed an
  appeal with this Court, and CNA  cross-appealed.  Thereafter, Sumitomo
  withdrew from the appeal.  This withdrawal has little effect on this
  opinion because we still must address Fireman's arguments on the priority
  of coverage responsibilities with respect to all three carriers.  On
  appeal, Fireman's contends that it is excess over both the CNA and Sumitomo
  policies.  CNA cross-appeals, arguing that Fireman's shares primary
  coverage responsibility for P&C and Heath and that it provides no coverage
  for AMI even though AMI is a listed as an additional insured.  
   
       ¶  8.  We review the decisions on the parties' summary judgment
  motions using the same standard as the trial court.  Madden v. Omega
  Optical, 165 Vt. 306, 309, 683 A.2d 386, 389 (1996).  Summary judgment is
  appropriate "if the pleadings, depositions, answers to interrogatories, and
  admissions on file, together with the affidavits, if any, show that there
  is no genuine issue as to any material fact and that any party is entitled
  to a judgment as a matter of law."  V.R.C.P. 56 (c)(3).  We will take as
  true the facts alleged by the nonmoving party, and "give the nonmoving
  party the benefit of all reasonable doubts and inferences."  Chamberlain v.
  Metro. Prop. & Cas. Ins. Co., 171 Vt. 513, 514, 756 A.2d 1246, 1248 (2000)
  (mem.).  Here, our inquiry largely turns on the policies' language. 
  Construction of the language of insurance contracts is a question of law,
  not of fact.  Waters v. Concord Group Ins. Cos., 169 Vt. 534, 535, 725 A.2d 923, 925 (1999) (mem.).  Accordingly, we make our own inquiry into the
  legal effect of the contracts' terms and the relationships between them. 
  Gannon v. Quechee Lakes Corp., 162 Vt. 465, 469, 648 A.2d 1378, 1380
  (1994).  

       ¶  9.  We interpret insurance contracts according to their terms and
  the intent of the parties as expressed by the policies' language.  City of
  Burlington v. Nat'l Union Fire Ins. Co., 163 Vt. 124, 127, 655 A.2d 719,
  721 (1994).  "Disputed terms are to be read according to their plain,
  ordinary, and popular meaning."  Chamberlain, 171 Vt. at 514, 756 A.2d  at
  1248.  Any ambiguity will be resolved in the insured's favor, but we will
  not deprive the insurer of unambiguous terms placed in the contract for its
  benefit.  Peerless Ins. Co. v. Wells, 154 Vt. 491, 494, 580 A.2d 485, 487
  (1990).
   
       ¶  10.  The questions in this appeal are complicated and interrelated. 
  Logically, there are nine starting questions - that is, for each of the
  three carriers, does the policy extend coverage to each of the three
  defendants in the underlying litigation? (FN4)  For each of the carriers
  and defendants, for which the answer to the coverage question is positive,
  we must then determine the priority of coverage - that is, is it primary,
  secondary or tertiary with respect to another carrier's coverage?  At some
  point in this litigation, virtually every possible question and answer was
  advanced by one or more of the carriers.

       ¶  11.  The decision in the trial court and the framing of the appeal
  issues has narrowed the number of questions we must answer.  Most
  importantly, the trial court found, or in some instances assumed, that the
  answers to the nine opening questions were all affirmative, and that each
  of the three carriers had, through the applicable policy, extended coverage
  to all of the three defendants in the underlying litigation.  For
  Fireman's, the trial court apparently based its conclusion upon the
  deposition testimony of its employee who was empowered to state its
  position and admitted that its policy covered the liability of P&C and
  Heath, as well as AMI.  Fireman's has not contested this conclusion on
  appeal, and, as a result, we do not consider its validity.

       ¶  12.  CNA did not contest the trial court's conclusion that CNA's
  policy covered P&C and Heath.  CNA did, however, contest coverage of AMI in
  the trial court and we must answer this appeal question.  The situation
  with respect to Sumitomo is essentially the same because its coverage is
  derivative of CNA's.

       ¶  13.  The trial court also found that each carrier's coverage
  position - primary secondary or tertiary - was the same with respect to all
  defendants in the underlying litigation.  This conclusion is not logically
  required.  For example, it is entirely possible that a carrier could have
  primary coverage responsibility for one defendant in the underlying
  litigation, and only secondary or tertiary excess coverage for the
  liability of another defendant.  While some of these possibilities were
  raised below, they are not part of the carriers' positions on appeal. 
  Thus, while each of the remaining carrier parties in this appeal -
  Fireman's and CNA - vigorously argues that its coverage is in some way
  excess with respect to that of the other, neither argues that its position
  as either primary or excess varies among defendants.
   
       ¶  14.  Thus, we are left with three main questions in this appeal:
  (1) which of the Fireman's and CNA policies extends primary coverage for
  the liability of defendants and which, if any, extends excess coverage; (2)
  what is the coverage position of Sumitomo; and (3) do the policies of CNA
  and Sumitomo extend liability coverage to AMI.  Fireman's appeal raises the
  first two of these issues.  CNA's cross-appeal raises the third.

       ¶  15.  The superior court resolved the first question by concluding
  that both policies extended primary coverage so that each carrier was
  obligated to pay a pro rata share of any judgment up to the applicable
  policy maximum.  CNA agrees with and defends that position here.  Fireman's
  agrees that CNA's coverage responsibility is primary, but argues that its
  obligation is for excess coverage that comes into play only when the CNA
  policy amounts are exhausted.  The resolution of this question requires us
  to look first and foremost at the language of the policies.

       ¶  16.  CNA contends that Fireman's shares primary coverage
  responsibility because AMI's trailer is a covered auto under the Fireman's
  policy and the policy states:

    We will pay all sums an insured legally must pay as damages
    because of bodily injury or property damage to which this
    insurance applies, caused by an accident and resulting from the
    ownership, maintenance or use of a covered auto.

  CNA's policy contains similar general coverage language.  If these were the
  only relevant provisions, CNA's position, and the trial court decision,
  would clearly be correct without additional analysis.  However, each of the
  policies also contains an "other insurance" clause that pertains directly
  to this action.  The application of these clauses is determinative of this
  case.
   
       ¶  17.  "Other insurance" clauses are used by insurers to "limit an
  insurer's liability where other insurance may cover the same loss."  15 L.
  Russ & T. Segalla, Couch on Insurance 3d, § 219:1 (1999).  Whether an
  insurer's "other insurance" clause will operate in a given situation
  depends largely on the specific language of the relevant policies.  Id. 
  Thus, determining the effect of these two carriers' "other insurance"
  clauses requires us to scrutinize the language of the policies and any
  endorsements thereto.  

       ¶  18.  Fireman's policy, a commercial business auto coverage policy,
  contains the following "other insurance clause" in Section IV, 
  subsection B:

    5. Other Insurance
        a. For any covered auto you own, this Coverage Form provides
        primary insurance.  For any covered auto you don't own, the
        insurance provided by this coverage form is excess over any other
        collectible insurance.  However, while a covered auto which is a
        trailer is connected to another vehicle, the Liability Coverage
        this Coverage form provides for the trailer is:
              (1) Excess while it is connected to a motor vehicle you do 
              not own.
              (2) Primary while it is connected to a covered auto you own.

  Fireman's policy also has a fleetcover endorsement.  "An endorsement is a
  writing added or attached to a policy which either expands or restricts the
  insurance in the policy.  It becomes a part of the contract when it is
  issued."  J. Appleman &  J. Appleman, Insurance Law and Practice, § 7537,
  at 140 (Supp. 2002).  This fleetcover endorsement also has an endorsement
  that makes several amendments to the commercial auto policy, including the
  "other insurance" clause.  The amendment to the "other insurance" clause
  reads:

    3. Other Insurance - Your Policy Will be Amended as Follows:
     A. Under Section IV - Business Auto Conditions: Condition 5: Other
    Insurance of B. General Conditions is Amended by Changing the
    Entire Condition as Follows:
    5. Other Insurance
    If other valid and collectible insurance is available to any
    insured for a loss we cover under Section II - Liability Coverage
    and Section III Physical Damage, our obligations are limited as
    follows:  This insurance is excess over any other liability
    insurance available to any insured.
    As this insurance is excess, we will have no duty under Section II
    liability to defend any claim or suit that any other insurer has a
    duty to defend.  If no other insurer defends, we will undertake to
    do so, but we will be entitled to the other insured's rights
    against all other insurers.
    Because this insurance is excess over other insurance, we will pay
    only our share of the amount of 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 insurance ; and
    (2) The total of all deductibles and self-insured amounts under
    all that other insurance.
    Section II Liability Coverage and Section III Physical Damage
    coverage are not excess to any excess insurance any insured bought
    specifically to apply in excess of the limits of insurance shown
    in the declarations of this coverage part.  

       ¶  19.  Fireman's urges us to read these provisions - the clause in
  Section IV, subsection B of the main policy, the first three paragraphs of
  the endorsement, and the fourth paragraph of the endorsement - as three
  independent "other insurance" clauses.  CNA in turn argues that the "other
  insurance" clause set forth in the endorsement is inapplicable because it
  is an amendment to the fleetcover endorsement and not to the main body of
  the policy.  In CNA's view, the purpose of the fleetcover endorsement is to
  expand coverage to subsidiaries so that fleetcover provisions apply only if
  a subsidiary's liability is at issue.  Since AMI is the insured, and not
  the subsidiary of the insured, CNA argues that it is inapplicable here.  
   
       ¶  20.  We decline to adopt either party's argument.  Insurance
  policies and their endorsements must be read together as one document and
  "the words of the policy remain in full force and effect, except as altered
  by the words of the endorsement."  Hamilton v. Khalife, 735 N.Y.S.2d 564,
  566 (App. Div. 2001) (internal quotations omitted); see Waters v. Concord
  Group Ins. Cos., 169 Vt. at 536, 725 A.2d  at 927; see also Preferred Nat'l
  Ins. Co. v. Docusearch, Inc., 829 A.2d 1068, 1074-75 (N.H. 2003) ("[A]n
  endorsement attached to a policy must be read together with the entire
  policy.").  In this case, the fleetcover endorsement expands the scope of
  coverage and is incorporated into the main policy.  Contrary to CNA's
  argument, the plain language of the endorsement replaces the "other
  insurance" clause in the main body of the commercial auto policy with that
  of the endorsement.  The amendment explicitly refers to the policy
  provision being replaced and provides the new language that now governs. 
  It does not state that the replacement is operative only with respect to
  expanded coverage.  Accordingly, we conclude that the "other insurance"
  clause in the endorsement is operative here, in its entirety. 

       ¶  21.  CNA's policy also contains an "other insurance" clause.  CNA's
  clause states:

    5. Other Insurance - Primary and Excess Insurance Provisions
    a.  This Coverage Form's Liability Coverage is primary for any
    covered "auto" while hired or borrowed by you and used exclusively
    in your business as a "trucker" and pursuant to operating rights
    granted to you by a public authority.  This Coverage Form's
    Liability Coverage is excess over any other collectible insurance
    for any covered "auto" while hired or borrowed from you by another
    "trucker".  However, while a covered "auto" which is a "trailer"
    is connected to a power unit, this Coverage Form's Liability
    Coverage is:
       1. On the same basis, primary or excess, as for the power unit if
       the power unit is a covered "auto".
       2. Excess if the power unit is not a covered auto.  
    b. Any trailer Interchange Coverage provided by this Coverage Form
    is primary for any covered "auto."
    c. Except as provided in paragraphs a. and b. above, this Coverage
    Form provides primary insurance for any covered "auto" you own and
    excess insurance for any covered "auto" you don't own.  
    d. For Hired Auto Physical Damage coverage, any covered "auto" you
    lease, hire, rent or borrow is deemed to be a covered "auto" you
    own.  However, any "auto" that is leased, hired, rented or
    borrowed with a driver is not a covered auto.
    e. Regardless of the provisions of paragraphs a., b., and c.
    above, this  Coverage Form's Liability Coverage is primary for any
    liability assumed under an "insured contract."
    f. When this Coverage Form and any other Coverage Form or policy
    covers on the same basis, either excess or primary, we will pay
    only  our share.  Our share is the proportion that the Limit of
    insurance of our Coverage Form bears to the total of the limits of
    all the Coverage Forms and policies covering on the same basis.  

  The effect of these competing clauses must be determined, first if
  possible, according to their terms.  See State Farm Mut. Auto Ins. Co. v.
  Powers, 169 Vt. 230, 237, 732 A.2d 730, 735 (1999).

       ¶  22.  The trial court found that CNA's and Fireman's "other
  insurance" clauses were mutually repugnant and therefore each was
  responsible for primary coverage.  We agree that if the clauses are
  mutually repugnant, the result is that neither is effective and each
  insurer shares primary coverage.  Champlain Cas. Co. v. Agency Rent-a-Car,
  168 Vt. 91, 97-98, 716 A.2d 810, 814 (1998).  In Powers, 169 Vt. at 237,
  732 A.2d  at 735, we explained that in cases involving "multiple insurers
  all claiming to provide either excess or primary coverage" the insurers
  would share the coverage responsibility on a pro rata basis.  We disagree,
  however, that the clauses are mutually repugnant in this case.  

       ¶  23.  As courts have worked to reconcile policies with competing
  "other insurance" clauses certain rules of construction have emerged.  See
  generally D. Richmond, Issues and Problems in "Other Insurance," Multiple
  Insurance, and Self-Insurance, 22 Pepp. L. Rev. 1373 (1995).  If policies
  have dissimilar "other insurance" clauses most courts "attempt to reconcile
  the clauses in a manner that will give effect to the intent of the
  parties."  Id. at 1392.  We adopted this general approach in Powers, for
  cases in which our reconciliation does not violate public policy or
  compromise coverage for the insured.  169 Vt. at 235, 732 A.2d  at 734
  (citing Aetna Cas. & Sur. Co. v. CNA Ins. Co., 606 A.2d 990, 992-93 (Conn.
  1992))
   
       ¶  24.  Contrary to CNA's argument, we do not construe an "other
  insurance" clause against the insurer.  To the extent we have adopted this
  rule of construction, it is to aid the insured, see Cooperative Fire Ins.
  Ass'n v. Bizon, 166 Vt. 326, 333, 693 A.2d 722, 727 (1997) (interpreting
  policy exclusion broadly in favor of insured), not another insurance
  company in litigation with the insurer over the allocation of coverage
  responsibility, see United States Fire Ins. Co. v. Gen. Reinsurance Corp.,
  949 F.2d 569, 574 (2d Cir. 1991); Ellis v. Royal Ins. Cos., 530 A.2d 303,
  309 (N.H. 1987).

       ¶  25.  Application of these principles here leads us to the
  conclusion that the other insurance provisions can be reconciled. 
  Fireman's "other insurance" clause unambiguously states that it is "excess
  over any other liability insurance available to any insured."  (Emphasis
  added.)  CNA's policy contains no such excess statement.  Rather, CNA's
  "other insurance" provision first states that it is "primary for any
  covered 'auto' while hired or borrowed by you and used exclusively in your
  business as a 'trucker' " and that it is "excess over any other collectible
  insurance for any covered 'auto' while hired or borrowed from you by
  another trucker."  The P&C trailer truck was a covered automobile and was
  being used at the time of the accident by P&C in its business as a trucker. 
  The superior court found, and Fireman's has not contested, that the "pup"
  trailer was a covered auto.  Since the power unit for the trailer is a
  covered auto, coverage for the trailer is on the same basis as the power
  unit under the specific language covering trailers, as set forth above. 
  Under the unambiguous language of the CNA "other insurance" clause, CNA's
  coverage obligation is primary, not excess.  On their face, the two
  policies do not have conflicting "other insurance" clauses in the
  circumstances of this case.

       ¶  26.  CNA argues that despite the policies' language, Fireman's is
  primary because: (1) the "Endorsement for Motor Carrier Policies of
  Insurance for Public Liability under Sections 29 and 30 of the Motor
  Carrier Act of 1980," commonly known as the MCS-90 endorsement, provides
  primary coverage, irrespective of the "other insurance" clause; and (2)
  Fireman's breached its duty to defend its insureds.


       ¶  27.  CNA contends that the MCS-90 endorsement included in Fireman's
  policy provides P&C and Heath with primary coverage, regardless of the
  "other insurance" clause.  Congress enacted the Motor Carrier Act of 1980
  (MCA) (FN5), in part, to "address abuses that had arisen in the interstate
  trucking industry which threatened public safety, including use by motor
  carriers of leased or borrowed vehicles to avoid financial responsibility
  for accidents that occurred" while carriers were transporting goods in
  interstate commerce.  Canal Ins. Co. v. Distrib. Servs. Inc., 320 F.3d 488,
  489 (4th Cir. 2003); see Motor Carrier Act of 1980, Pub. L. No. 96-296 § 3,
  94 Stat. 793.  As a result of the MCA, motor carriers who transport goods
  in interstate commerce "must register with the federal government and
  demonstrate that they have secured adequate financial resources to pay
  judgments occurring in the course of their transportation business." 
  Pierre v. Providence Wash. Ins. Co., 784 N.E.2d 52, 53 (N.Y. 2002); see 49
  U.S.C. § 13906(a)(1).  Most carriers show they can meet the minimum
  financial responsibility requirements, set forth by the United States
  Secretary of Transportation pursuant to 49 U.S.C. §§ 13902(a)(1)(C), 31139,
  by purchasing liability insurance with an MCS-90 endorsement.  The MCS-90
  endorsement, which is set out in 49 C.F.R § 387.15 illustration 1, provides
  in relevant part:
   
    In consideration of the premium stated in the policy to which this
    endorsement is attached, the insurer (the company) agrees to pay,
    within the limits of liability described herein, any final
    judgment recovered against the insured for public liability
    resulting from negligence in the operation, maintenance or use of
    motor vehicles subject to the financial responsibility
    requirements of Sections 29 and 30 of the Motor Carrier Act of
    1980 regardless of whether or not each motor vehicle is
    specifically described in the policy and whether or not such
    negligence occurs on any route or in any territory authorized to
    be served by the insured or elsewhere. . . . [N]o condition,
    provision, stipulation, or limitation contained in the policy,
    this endorsement, or any other endorsement thereon, or violation
    thereof, shall relieve the company from liability or from the
    payment of any final judgment, within the limits of liability
    herein described, irrespective of the financial condition,
    insolvency or bankruptcy of the insured.  However, all terms,
    conditions, and limitations in the policy to which the endorsement
    is attached shall remain in full force and effect as binding
    between the insured and the company.  The insured agrees to
    reimburse the company for any payment made by the company on
    account of any accident, claim, or suit involving a breach of the
    terms of the policy, and for any payment that the company would
    not have been obligated to make under the provisions of the policy
    except for the agreement contained in this endorsement. 


       ¶  28.  As the New York Court of Appeals observed, "the endorsement
  shifts the risk of loss for accidents occurring in the course of interstate
  commerce away from the public by guaranteeing that an injured party will be
  compensated even if the insurance carrier has a valid defense based on a
  condition in the policy."  Pierre, 784 N.E.2d  at 53; see S. Collier, Tenth
  Circuit Survey: Insurance Law, 75 Den. U. L. Rev. 1003, 1009 (1998)
  (stating that the public policy rationale behind MCS-90 endorsement is to
  protect the public from carriers who do not carry required insurance on
  their vehicles).  The MCS-90 policy, however, does not create coverage
  where there is none and accordingly, the endorsement provides that an
  insurer may seek indemnification if it is eventually determined that the
  insured is not entitled to payment of claims against it under the policy
  terms.  49 C.F.R. § 387.15; see Progressive Cas. Ins. Co. v. Hoover, 809 A.2d 353, 360 n.11 (Pa. 2002) (explaining that MCS-90 endorsement does not
  create coverage per se).

       ¶  29.  To give effect to the federal financial responsibility
  requirements, the MCS-90 endorsement in Fireman's policy further states:

    The limits of the company's liability for the amounts prescribed
    in this endorsement apply separately to each accident and any
    payment under the policy because of any one accident shall not
    operate to reduce the liability of the company for the payment of
    final judgments resulting from any other accident. The policy to
    which this endorsement is attached provides primary or excess
    insurance, as indicated by X for the limits shown: X  This
    insurance is primary and the company shall not be liable for
    amounts in excess of $1,000,000 for each accident. This insurance
    is excess and the company shall not be liable for amounts in
    excess of $ _____ for each accident in excess of the underlying
    limit of $ ______ for each accident.


       ¶  30.  Under regulations set forth by the Secretary of
  Transportation, carriers must have at least $750,000 available in coverage
  and must include the above language in the endorsement.  49 C.F.R. §§
  387.7(a), 387.9.  CNA argues that this endorsement renders Fireman's
  coverage primary despite the "other insurance" clause.  In response,
  Fireman's contends the MCS-90 endorsement is inapplicable to this case
  because: (1) the endorsement is intended to apply only to claims by members
  of the public against shippers; (2) the MCS-90 coverage endorsement
  operates only if the carrier is hauling a non-exempt commodity, and here
  milk is an exempt commodity; and (3) at the time of the accident AMI was
  engaged in intrastate, not interstate, commerce.  Because the MSC-90
  endorsement is a federally mandated inclusion in the policy, we construe
  its effect in this case according to federal law.  Lynch v. Yob, 768 N.E.2d 
  at 1162. 


       ¶  31.  Although federal courts considering this issue are split, the
  majority of circuits have held that the MCS-90 endorsement has no
  application to disputes between insurers because the purpose of the
  endorsement is solely to protect injured members of the public.  Canal Ins.
  Co., 320 F.3d  at 493; Empire Fire & Marine Ins. Co. v. J. Transp. Inc., 880 F.2d 1291, 1298-99 (11th Cir. 1989); Travelers Ins. Co. v. Transp. Ins.
  Co., 787 F.2d 1133, 1140 (7th Cir. 1986); Carter v. Vangilder, 803 F.2d 189, 192 (5th Cir. 1986); Grinnell Mut. Reinsur. Co. v. Empire Fire &
  Marine Ins. Co., 722 F.2d 1400, 1404-05 (8th Cir. 1983); Carolina Cas. Ins.
  Co. v. Ins. Co. of N. America, 595 F.2d 128, 140-41 (3d Cir. 1979); see
  also John Deere Ins. Co. v. Nueva, 229 F.3d 853, 857 (9th Cir. 2000)
  (MCS-90 endorsement does not govern dispute between insurer and insured
  because purpose is to protect injured member of the public). Those courts
  not joining the majority have reasoned that despite the public policy
  rationale of the MCS-90 endorsement, the endorsement may be applicable to
  allocation arguments between insurers.  Prestige Cas. Co. v. Mich. Mut.
  Ins. Co., 99 F.3d 1340, 1348-49 (6th Cir. 1996); Empire Fire & Marine Ins.
  Co. v. Guar. Nat. Ins. Co., 868 F.2d 357, 361-64 (10th Cir. 1989). (FN6)  
  We are in accord with the majority view and find the reasoning of the
  Fourth Circuit's opinion in Canal Insurance Co. particularly helpful.  

       ¶  32.  In Canal Insurance Co., the court considered whether the
  MCS-90 endorsement operated only "when necessary to protect injured members
  of the public."  320 F.3d  at 492.  In deciding to join the majority of its
  sister circuits, the court reasoned that the MCS-90 endorsement should be
  inapplicable to coverage disputes between insurers because this conclusion
  adheres more faithfully to the endorsement's literal language.  Id. at 493. 
  The court explained that the MCS-90 endorsement specifically states that
  all policy limitations shall remain in full effect, and that "[t]his
  language makes clear that the MCS-90 endorsement . . . does not alter the
  relationship between the insured and the insurer as otherwise provided in
  the policy."  Id.  Because the insurer/insured relationship is not altered,
  the court reasoned that the endorsement cannot affect coverage allocation
  between insurers.  We agree with this analysis and conclude that because
  the MCS-90 endorsement is included in the policy by federal mandate to
  protect injured members of the public from carriers with inadequate
  insurance coverage, it is not implicated when resolving disputes like this
  one between insurers. (FN7)  See T.H.E. Ins. Co. v. Larsen Intermodal
  Servs. Inc., 242 F.3d 667, 673 (5th Cir. 2001).
   
       ¶  33.  Nevertheless, CNA contends that injured members of the public
  are involved in this question because of its agreement in settlement of the
  Clodgo suit.  That settlement agreement specifies that  CNA will pay the
  Clodgos up to $25,000 if CNA is able to recover funds from Fireman's. 
  Since the Clodgos are injured members of the public, and they stand to gain
  from a determination that Fireman's bears primary coverage responsibility
  under the MCS-90 endorsement, CNA argues that the MCS-90 endorsement must
  govern in this case.  We find no merit to this argument.  CNA independently
  entered into this settlement agreement with the Clodgos.  As Fireman's
  points out, the additional $25,000 will effectively be paid with Fireman's
  money as part of the $75,000 CNA will gain from a decision in its favor. 
  This contingent fee is not the public protection intended by MCS-90
  endorsements.

       ¶  34.  Because we conclude that the MCS-90 endorsement is applicable
  only where protection of a member of the public is implicated, and we find
  no such protection interest here, we do not consider Fireman's two
  additional arguments: milk is an exempt commodity and the carrier was
  engaged in intrastate, rather than interstate, commerce. 

       ¶  35.  We are left with one additional CNA argument as to why
  Fireman's coverage responsibility should be viewed as primary.  CNA
  contends that Fireman's has breached its duty to defend and settle because
  it has not participated in, or contributed to, P&C's and Heath's defense in
  the underlying actions.  Fireman's "other insurance" clause, however,
  explicitly states that since the coverage is excess it has "no duty to
  defend . . . any claim or suit that any other insurer has a duty to
  defend."  Where the policy specifically states that there is no duty to
  defend when the policy provides excess coverage, we will honor this
  language provided that an insured's overall coverage is not compromised. 
  See Cotter Corp. v. Am. Empire Surplus Lines Ins. Co., 90 P.3d 814, 834
  (Colo. 2004); Jessop v. City of Alexandria, 871 So. 2d 1140, 1147 (La. Ct.
  App. 2004).  This is not a case where both insurers denied that they had
  primary coverage responsibility.  See, e.g., Utica Mut. Ins. Co. v. Miller,
  746 A.2d 935, 947 (Md. Ct. Spec. App. 2000) (concluding that insurer had
  duty to defend where primary insurer had not been identified).  Here, CNA
  never disputed its status as a primary insurer and pursuant to that status
  has properly undertaken P&C's and Heath's defenses.  Therefore, because it
  is an excess insurer and CNA has always been identified as the primary
  insurer, we hold that Fireman's has not breached a duty to defend P&C or
  Heath.  
   
       ¶  36.  Having determined that CNA's coverage is primary, and
  Fireman's is excess, we must determine the coverage allocation position for
  Sumitomo.  Sumitomo argues that as a "true" excess provider its coverage is
  not triggered until both CNA's and Fireman's policies are exhausted.  CNA
  also endorses this position.  Fireman's, however, contends that its policy
  is not accessed until both the CNA and Sumitomo policies are depleted or,
  at a minimum that it is a co-excess insurer with Sumitomo.  For the reasons
  set forth below, we conclude that Fireman's is a secondary policy and
  Sumitomo is a tertiary policy available only after the other two policies
  are exhausted.  

       ¶  37.  Sumitomo's policy was purchased by P&C and specifically lists
  CNA as the underlying primary insurer.  The policy, which is titled
  "Commercial Excess Umbrella Policy," provides coverage in two instances:
  (1) Coverage A applies where the loss is covered initially by the
  underlying policy, but the loss is in excess of the underlying policy's
  limits; and (2) Coverage B applies where the loss is not covered by the
  underlying policy in the first instance.  Coverage A is applicable to this
  action because it is undisputed that CNA, the underlying insurer, covers
  the loss.  Coverage A provides in relevant part:

    Coverage A- Excess Follow Form Liability Claims Made or Occurrence
    Coverage
    We will pay, on behalf of an insured, damages in excess of the
    total Limits of Liability of Underlying Insurance as stated in the
    Schedule of Underlying Insurance.  The terms and conditions of the
    Scheduled Underlying Insurance are with respect to Coverage A made
    a part of this policy, except for:
       a. any definition, term or condition therein relating to: any duty
       to investigate and defend, the Limits of Liability, premium,
       cancellation, other insurance, our right to recover payment,
       Extended Reporting Periods, or
       b. any renewal agreement, and any exclusion or limitation attached
       to this policy by endorsement or included in the Exclusions
       applicable under coverage A and B of this policy.
    With respect to a. and b. above, the provisions of this policy
    will apply.  

  Like the other policies in this case, the Sumitomo policy also contains an
  "other insurance" clause which states:
   
    If other insurance applies to claims covered by this policy, the
    insurance under this policy is excess and we will NOT make any
    payments until the other insurance has been used up.  This will
    NOT be true, however, if the other insurance is specifically
    written to be excess over this policy. 

  The policy defines "other insurance" as "[i]nsurance other than Scheduled
  Underlying Insurance or insurance specifically purchased to be excess of
  this policy affording coverage that this policy also affords." 

       ¶  38.  We agree that Sumitomo's priority position depends on the
  nature of its policy's coverage.  Sumitomo argues that its policy is a
  "true excess" policy, while Fireman's is merely a "coincidental" excess
  policy.  Although these two types of policies are similar in some respects,
  there is a fundamental difference in the nature of the risk assumed by
  each. 
   
       ¶  39.  As the Michigan Supreme Court in Frankenmuth Mutual Insurance
  Co. v. Continental Insurance Co., explained: "True excess coverage occurs
  where a single insured has two policies covering the same loss, but one
  policy is written with the expectation that the primary will conduct all of
  the investigation, negotiation and defense of claims until its limits are
  exhausted."  537 N.W.2d 879, 881 n.4 (Mich. 1995) (internal quotation marks
  omitted).  "True" excess policies are generally purchased to provide the
  insured protection in the event of a catastrophic loss that exceeds the
  limits of the insured's primary policy.  See Liberty Mut. Ins. Co. v.
  Harbor Ins. Co., 603 A.2d 300, 302 (R.I. 1992) (quoting 8A J. Appleman,
  Insurance Law and Practice, § 4909.85, at 452, 453-54 (1981)).  Because
  "true" excess policies are designed to supplement, not replace, primary
  coverage, they generally require underlying primary insurance in a specific
  sum and list the primary insurance company in the body of the policy.  See
  Penton v. Hotho, 601 So. 2d 762, 764 n.3 (La. Ct. App. 1992).  "True"
  excess insurers also require that the named insured purchase primary
  insurance for the same risks.  Richmond, supra, at 1399.  These
  requirements allow the "true" excess insurer to accurately assess the risk
  it is undertaking.  Moreover, because the "true" excess policy takes effect
  only after the primary policy is exhausted, liability for the covered
  claims does not attach when the loss occurs.  Id.  Rather, liability
  attaches when the underlying insurance is exhausted.  In contrast,
  "coincidental" excess insurance is primary insurance that is rendered
  excess by operation of a policy provision, like an "other insurance"
  clause, in a specific set of circumstances.  Bosco v. Bauermeister, 571 N.W.2d 509, 516 (Mich. 1997).  A primary policy with an "other insurance"
  clause is a device used by the insurer to limit liability where other
  primary insurance exists.  Penton, 601 So. 2d  at 764 n.3.  If an "other
  insurance" clause operates, as it does here, the policy with the
  controlling "other insurance" clause becomes secondarily liable.  See CNA
  Ins. Co. v. Selective Ins. Co., 807 A.2d 247, 254 (N.J. Super. 2002).  This
  does not mean, however, that like the "true" excess policy, liability
  attaches only if the primary policy is exhausted.  Rather, where a primary
  policy is secondarily liable because of an "other insurance" clause,
  liability attaches at the moment of the loss.

       ¶  40.  Although Fireman's has disputed this characterization, we
  conclude that Sumitomo's policy is a "true" excess policy and CNA's is a
  "coincidental" policy. (FN8)  Sumitomo's policy specifically states that it
  is excess to the underlying scheduled policy.  Unlike Fireman's policy, the
  language in the body of the policy does not state that it is excess if
  other insurance exists; rather, Sumitomo's policy requires the existence of
  other insurance and under no set of facts could it be a primary policy.  In
  contrast, if CNA's insurance had not been available or identifiable,
  Fireman's policy would have been primary in this litigation.  The fact that
  Fireman's policy is excess under a certain set of circumstances does not
  transform it from a primary policy with an "other insurance" clause into a
  "true" excess policy.  Bosco, 571 N.W.2d  at 516.  Operation of the "other
  insurance" clause does not obviate the fact that Fireman's became liable in
  the underlying lawsuits at the moment of the loss. 

       ¶  41.  Having determined the nature of the policies, we join the
  majority of courts that have considered a conflict between a "true" and
  "coincidental" excess provider and hold that the true excess policy need
  not contribute until after the "coincidental" insurer's limits are
  exhausted.  See, e.g., Allstate Ins. Co. v. Am. Hardware Mut. Ins. Co., 865 F.2d 592, 595 (4th Cir. 1989); Occidental Fire & Casualty Co. v. Brocious,
  772 F.2d 47, 54 (3d Cir. 1985); Allstate Ins. Co. v. Employers Liab.
  Assurance Corp., 445 F.2d 1278, 1284 (5th Cir. 1971); Ins. Co. of N. Am. v.
  Am. Econ. Ins. Co., 746 F. Supp 59, 64 (W.D. Okla. 1990); Aetna Ins. Co. v.
  State Auto. Mut. Ins. Co., 368 F. Supp. 1278, 1282 (W.D. Ky. 1973); Bosco,
  571 N.W.2d  at 518; Liberty Mut. Ins. Co., 603 A.2d at 302-03; State Farm
  Fire & Cas. Co. v. LiMauro, 482 N.E.2d 13, 18 (N.Y. 1985); see also
  Richmond, supra, at 1400 (explaining that primary policies rendered excess
  by operation of "other insurance" provisions are not transformed into
  "true" excess policies).  We conclude that this rule best allocates the
  coverage in relation to the risk assumed by the carriers.

       ¶  42.  Based on the allocation rule we have adopted, we hold that
  Fireman's coverage is secondary and must be exhausted before Sumitomo's
  coverage under its true excess policy is applicable. 
   
       ¶  43.  We now turn to the third, cross-appeal issue - whether CNA's
  policy extends liability coverage to AMI.  Sumitomo originally joined CNA's
  position that it did not extend such coverage, but our holding that
  Sumitomo's coverage commences only after that of Fireman's makes Sumitomo's
  involvement superfluous.  (FN9) 

       ¶  44.  CNA argues that its policy does not cover the AMI "pup"
  trailer or, if it does, the coverage is more limited than that for P&C and
  Heath and is excess.  The applicable endorsement in the CNA policy lists,
  as an additional insured, "all trailers owned by Agrimark and leased to
  Pouliot & Corriveu" under a section titled "Designation or Description of
  Leased 'Autos.' "  The policy's definition of "auto" includes a trailer
  such as the one involved in this accident.  The policy defines "leased
  auto" as: "an 'auto' leased or rented to [the insured] . . . under a
  leasing or rental agreement that requires [the insured] to provide direct
  primary insurance to the lessor."

       ¶  45.  The dispute over CNA's coverage of the trailer relates to this
  definition of a leased auto.  CNA contends that the definition of "leased
  'auto' " excludes coverage for the trailer involved in the accident because
  it was not leased pursuant to a leasing or rental agreement that required
  P&C to provide direct primary insurance to AMI.  In opposition, Fireman's
  argues that the definition of "leased auto" should not be relied upon
  because it is a mere technicality and in the alternative, if we decide the
  definition does apply, the fact that there is no written agreement showing
  that P&C agreed to provide AMI with direct primary insurance should not be
  dispositive because other extrinsic evidence demonstrates that P&C intended
  to provide direct primary insurance for AMI. 
   
       ¶  46.  The summary judgment record has developed the underlying facts
  only to a limited extent.  The parties entered into a written lease
  agreement in 1984 whereby AMI leased equipment to P&C.  In this lease, AMI
  agreed to provide insurance on all the equipment listed in an attached
  schedule.  The lease further provided that P&C and AMI would annually
  review their insurance obligations to determine which party could most
  economically secure insurance in the coming year.  If, pursuant to these
  discussions, P&C became responsible for providing the insurance, the lease
  specified that P&C would then be required to name AMI as an insured party. 
  The record does not tell us whether the parties engaged in this annual
  negotiation.  The trailer involved in this accident was not listed on the
  schedule attached to the 1984 lease and was, instead, the subject of an
  oral lease agreement.  Following the accident, the parties signed a written
  lease that included the trailer, but this lease is silent on insurance.

       ¶  47.  As explained above, our task in resolving this dispute is to
  ascertain the parties' intent by first giving effect to the policies'
  language.  City of Burlington, 163 Vt. at 127, 655 A.2d  at 721.  Although
  we construe ambiguous terms in favor of the insured and to favor complete
  coverage, we must give effect to the clear terms of the insurance contract. 
  See Bizon, 166 Vt. at 333, 693 A.2d  at 727.  In this case, the definition
  of "leased auto" in CNA's endorsement is clear, and it limits the general
  statement of the equipment covered by the endorsement.  The definition may
  be technical, as Fireman's asserts, but it is applicable to this dispute. 
  Thus, our question becomes whether the lease arrangement between P&C and
  AMI required P&C to provide direct primary insurance for AMI.
   
       ¶  48.  Fireman's argues that the P&C must have agreed to provide
  primary insurance for AMI because: (1) it listed AMI as an additional
  insured; (2) the trailer involved in the accident was specifically listed
  in the CNA policy; (3) CNA's agent testified in a deposition that per the
  arrangement between P&C and AMI certain vehicles "were to be listed on the
  policy for liability only;" and (4) an AMI employee stated in an affidavit
  that AMI required lessees to provide insurance and to prove as much by
  giving AMI a certificate of insurance, which was done in this case.  In
  opposition, CNA claims that: (1) the 1984 lease shows that AMI, not P&C,
  was required to provide insurance and this reflects the intent of the
  parties; (2) the listing of AMI as an additional insured is meaningless
  because the definition of "leased 'auto' " is controlling; (3) the listing
  of the "pup" trailer does not show an intent to cover the trailer and, more
  importantly, the definition of "leased 'auto' " specifies that insurance
  must be provided for the lessor, not the leased equipment; (4) CNA's
  agent's testimony "is consistent in that he was given a list of the leased
  vehicles and told to insure those vehicles for liability only"; and (5) the
  certificate of insurance given to AMI is evidence only of the types of
  insurance P&C carried.  Although the superior court recited much of this
  conflict, and found that CNA was responsible for coverage of AMI, it did
  not specify how it resolved the conflict.

       ¶  49.  Each party in this case has its own version of the oral
  lease's terms, and each version is supported by viewing certain important
  facts in a different light.  Given the parties' conflicting evidence, the
  fact that no written record of the oral lease exists, and that resolving
  the terms of the oral lease is critical to determining whether CNA is
  responsible for covering the trailer, we conclude that this issue cannot be
  resolved on summary judgment.  There are disputed issues of material fact
  that prevent summary judgment.  See V.R.C.P. 56(c).  Therefore, we remand
  this issue to the trial court.

       ¶  50.  If on remand the trial court determines that under the
  endorsement CNA must provide coverage for the trailer, then given the terms
  of CNA's "other insurance" clause and our holding above, that coverage is
  primary.  If the endorsement does not apply to these circumstances,
  Fireman's has the sole coverage responsibility for AMI in the litigation in
  which AMI is named. 

       Affirmed in part; reversed and remanded in part for proceedings
  consistent with this opinion. 



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                  Footnotes

                                    
FN1.  Chief Justice Amestoy sat for oral argument but did not participate in
  this decision.

FN2.  The issuing company was Transcontinental Insurance Company.  CNA is
  Transcontinental's successor in interest. 

FN3.  According to the declaratory judgment complaint, the Clodgos filed
  only one suit.  CNA's motion for summary judgment references only one
  Clodgo suit, and the complaint is attached.  The complaint indicates that
  the suit is only against P&C and Heath.  The settlement agreement, which
  was attached to CNA's reply memorandum in support of its summary judgment
  motion, states that this action against P&C and Heath will be dismissed
  with prejudice.  Despite the fact that the Clodgos never sued AMI, the
  settlement agreement releases AMI from liability.

FN4.  There are actually additional questions because a carrier could have
  coverage responsibility for a defendant in the underlying litigation with
  respect to a plaintiff in that litigation but not with respect to another
  plaintiff.  In effect, this occurred because the Clodgos sued P&C and
  Heath, but not AMI.  This additional complexity does not, however, affect
  our analysis.

FN5.  The Motor Carrier Act of 1980 (MCA) was preceded by the Interstate
  Commerce Commission Act of 1935 (ICCA).  Prior to 1982, the ICC required
  form BMC-90 be included in policies.  Harold A. Weston, Annotation, Effect
  of Motor Carrier Act Provisions on Insurance and Indemnity Agreements (49
  U.S.C.A. §§ 13906, 14102) in Allocating Losses Involving Interstate Motor
  Carriers, 157 A.L.R. Fed. 549, 561 n.2, § 2[a] (1999).  The MCS-90
  endorsement is almost identical to the BMC-90 form; therefore we consider
  those cases that consider the BMC-90 form relevant to this appeal even if
  they predate the MCA.  Id.
       The MCA incorporated the ICCA, but left jurisdiction with the
  Interstate Commerce Commission (ICC).  The ICC was disbanded in 1996 by the
  ICC Termination Act of 1995, and its responsibilities were undertaken by
  the Surface Transportation Board of the Department of Transportation.  See
  Empire Fire & Marine Ins. Co. v. Liberty Mut. Ins. Co., 699 A.2d 482, 491
  (Md. Ct. Spec. App. 1997); Lynch v. Yob, 768 N.E.2d 1158, 1161 n.2 (Ohio
  2002).

FN6.  As Prestige and Empire Fire hold, there are actually two alternative
  rules that can give some effect to MSC-90 endorsements in disputes between
  insurers.  See Prestige Cas. Co., 99 F.3d  at 1348; Empire Fire & Marine
  Ins. Co., 868 F.2d  at 361.  Prestige and Empire Fire adopt an intermediate
  position holding that the endorsement negates limiting provisions, such as
  an "excess coverage" clause, "but does not establish primary liability over
  other policies that are also primary by their own terms."  Prestige, 99 F.3d  at 1348.  In view of our holding, we do not have to decide the result
  in this case under the intermediate position.

FN7.  We recognize that this position is undermined by Fireman's decision to
  check the box stating that the policy "to which this endorsement is
  attached provides primary . . . insurance."  The first impression of this
  action is that it is inconsistent with our construction of the policy, as
  set out above in the body of the opinion.  We think, however, the
  inconsistency is more superficial than real.  The alternative box on the
  federally mandated form requires the insurer to specify the "underlying
  limit" for each accident over which the policy is excess.  Thus, it refers
  to true excess policies "written under circumstances where rates were
  ascertained after giving due consideration to known existing and underlying
  basic or primary policies."  Loy v. Bunderson, 320 N.W.2d 175, 179 (Wis.
  1982); see infra ¶¶ 39-40.  Fireman's could not have completed this
  alternative part of the form.  Thus, we are not surprised at the
  observation of the Fireman's witness in United States Fire Insurance Co. v.
  Fireman's Fund Insurance Co., 461 N.W.2d 230, 233 n.2 (Minn. Ct. App. 1990)
  that in twenty-five years of underwriting experience, "he could not recall
  an instance where a motor carrier's endorsement had designated excess
  coverage."  We decide that the checking of the box for primary insurance
  does not change our conclusion that the MCS-90 endorsement does not affect
  the allocation of coverage responsibility among carriers.  This is
  essentially the holding of Griffin v. Public Service Mutual Insurance Co.,
  744 A.2d 204, 207-08 (N.J. Super. Ct. App. Div. 2000), where the carrier
  failed to fill out the form, but the court held that the form would have
  been irrelevant to the coverage allocation dispute.

FN8.  Fireman's disputes this characterization because the Sumitomo policy
  contains a "drop down" provision and, according to Fireman's interpretation
  of the policy, its "other insurance" provision does not apply to the
  coverage involved in this case.  We agree with Sumitomo's argument that the
  "other insurance" provision is applicable.  We do not find the "drop down"
  provision - which applies when the underlying coverage is wholly or
  partially exhausted - inconsistent with the true excess nature of the
  coverage.

FN9.  For this reason, we do not address Fireman's argument that Sumitomo
  failed to argue below that its policy did not cover AMI and its further
  argument that it had to file a cross-appeal to raise the argument here.