Gilkey

Two insurance companies, each having insured the same risk, here litigate the question as to which is obliged to assume the liability of the insured for damages resulting from an automobile accident. Jurisdiction is conferred by diversity of citizenship.

Ellis, the owner of a truck, leased the truck to Chapman Manufacturing Company of Corvallis, Oregon. By the terms of his lease Ellis agreed to furnish the truck, a driver and public liability insurance in the sum of $50,000. The insurance was secured by Ellis through Colonial Insurance Company of California as primary insurer with liability limited to $10,000 and appellees (hereinafter referred to as “Lloyds”) as secondary insurers with their (Lloyds’) combined total liability limited to $40,000.

*134 At the time of the accident Chapman had its own comprehensive liability policy issued by appellant General Insurance Company of America which insured Chapman’s operations against public liability with a limitation of $100,000.

On July 29, 1953, a collision occurred in the State of Washington between the rented truck, operated by the driver who had been supplied by the owner, and another truck. As a result, the operator of the…

On Petition for Rehearing.

Appellee Lloyd’s contends that we should have held that proration, under the Oregon rule, should have been applied as between Colonial and General only, disregarding Lloyd's. We do not see why this should be done. Apparently appellee still argues that its words “Primary Insurers” operate to leave it out of the picture. Our opinion explained why we think that is not so.

Lloyd’s did cover this particular liability. In effect, it was an adjunct to Colonial. Since it covered, and incorporated by reference the same “other insurance” clause of Colonial, we see no reason why Lloyd’s should be held wholly non-liable for a loss which it expressly covered.

Complaint is made that we disregarded three California cases, including Peerless Casualty Co. v. Continental Casualty Co., 144 Cal.App.2d 617 , 301 P.2d 602 . But as we noted in Travelers Insurance Company v. Peerless Insurance Company, 9 Cir., 287 F.2d 742 , the California courts do not accept the rule of proration adopted in Oregon. The California case last cited noted this, suggesting that were that case decided under Oregon law, a different result, requiring contribution from Lloyd’s “might well be…