Key Decisions

September 2013 – The Particular Insurance Policy Provided Pro Rata Coverage

(filed under: Key Decisions Archive | September 24, 2013)

The Particular Insurance Policy Provided Pro Rata Coverage

Progressive Choice Insurance Company v. California State Automobile Association Inter-insurance Bureau
(Cal. Ct. of App., 2d Dist.), filed August 13, 2013, published August 13, 2013


Benjamin White was injured in a traffic collision, while riding as a passenger in a vehicle Scott Tortora was driving. The party who caused the collision was underinsured.

White was an “insured” under two automobile insurance policies. Progressive issued one of those policies to Tortora. That policy insured the vehicle. Because White was a passenger in Tortora’s vehicle, he was an “insured.” Progressive’s policy provided underinsured motorist bodily injury coverage with limits of $100,000 for each person. CSAA issued the other policy to White as the named insured. It provided underinsured motorist bodily injury coverage with limits of $50,000 for each person.

The Progressive policy used language substantially similar to that mandated by the Insurance Code. Under “Exclusions,” the policy stated that coverage is “not provided for bodily injury sustained by any person while using or occupying…a motor vehicle, other than a covered vehicle, if the owner has insurance similar to that provided under this Part.”

This Part also included an “Other Insurance” provision. That provision stated: “If there is other applicable uninsured or underinsured motorist coverage, the damages which an insured person is entitled to recover” under this Part “shall be deemed not to exceed the highest limit of any applicable coverage. We will pay only our share of the damages. Our share is the proportion that our Limit of Liability bears to the total of all available coverage limits. Any insurance we provide shall be excess over any other uninsured or underinsured motorist coverage, except for bodily injury to you or a relative when occupying a covered vehicle.”

The CSAA policy did not include an exclusion comparable to Progressive’s. However, the CSAA policy stated:

With respect to bodily injury to an insured person occupying a motor vehicle not owned by you, the coverage under this Part applies only as excess insurance over any similar insurance available to such insured person and covering such automobile as primary insurance. In this situation this coverage will apply only in the amount by which the limits of liability for this coverage exceeds the limits of liability of such other insurance.

If there is other similar insurance on a loss covered by this Part, we will pay our proportionate share as our limit of liability bears to the total limits of all applicable similar insurance. But, any insurance for a vehicle you do not own is excess over any applicable similar insurance.

White settled with the at-fault driver’s automobile insurance company for the policy limit of $25,000. White then made a claim for Underinsured Motorist benefits under the Progressive and CSAA policies.

CSAA denied coverage. It asserted that its policy was excess over Progressive’s policy. Because of CSAA’s denial, Progressive paid White $62,500. Progressive then demanded that CSAA reimburse Progressive $20,833.33, the pro-rata share of the payment it made to White. CSAA declined.

Progressive sued CSAA. The parties each moved for summary judgment. The trial court granted Progressive’s motion.


The Court of Appeal affirmed. It held that because CSAA’s policy did not include an exclusion such as the one authorized by the Insurance Code and included in Progressive’s policy, CSAA could not deny coverage.

The court rejected CSAA’s argument that the “Other Insurance” provision of its policy expressly incorporates Insurance Code Section 11580.2(c)(2). It found that CSAA’s language was not “substantially similar” to that provided for in the Insurance Code.

The court also rejected CSAA’s argument that it need not expressly incorporate the language of Section 11580.2 (c)(2) in order to exclude the underinsured motorist coverage that it provided to the insured. The court noted that such an argument was rejected in Utah Property & Casualty Ins. v. United Services Auto. Assn., 230 Cal.App.3d 1010 (1991). There, the court remarked that a time limitation on a trigger for uninsured motorist coverage did not apply because it was not stated in the policy and “a layperson reading the policy would have no reason to suspect [such a limitation].”


Prioritizing or prorating uninsured motorist coverage can be very tricky. Careful assessment of the particular policy language is obviously required. At least one court has suggested that California Insurance Code Section 11580.9 may even come into play. See State Farm Mut. Auto. Ins. Co. v. Progressive Marathon Ins. Co., 148 Cal.App.4th Supp. 1 (2007).