United States Tenth Circuit

In an action between two insurance companies concerning the apportionment of liability for a professional malpractice incident, district court's judgment that each insurer should pay its pro-rata share of both the underlying loss and the defense cost is affirmed where: 1) both policies provided excess coverage; 2) neither policy contains language that can be construed as creating escape clauses to disclaim liability if other insurance is available; and 3) district court properly applied the doctrine of equitable contribution for two policies with the same risk at the same level of coverage.

Appellate Information

• Decided 03/27/2008
• Published 03/28/2008

Judges

• HARTZ, Circuit Judge., Before HARTZ and GORSUCH, Circuit Judges, and BRIMMER, District Judge.

Court

• United States Tenth Circuit

Counsel

• For Appellees:
  
• David A. Russell (Leslie C. Weeks with him on the brief), of Rodolf & Todd, Tulsa, OK, for Defendant-Appellant., James Robert Hall of Meckler, Bulger & Tilson LLP, Chicago, IL, (Michael M. Marick of Meckler, Bulger & Tilson LLP, Peter L. Wheeler and Larry G. Cassil, Jr. of Pierce, Couch, Hendrickson, Baysinger & Green, L.L.P., Oklahoma City, OK, with him on the brief) for Plaintiff-Appellee.