Builders risk insurance carried by a general contractor contained an "other insurance" clause as follows: "This policy does not cover any loss or damage which at the time of the happening of such loss or damage is insured by or would, but for the existence of this policy, be insured by any other policy or policies, except in respect of an excess beyond the amount which would have been payable under such other policy or policies had this insurance not been effected."

A builders risk policy carried by an electrical contractor, hired by the general contractor under subcontract to provide all of the electrical work on a bank tower, included the following "other insurance" provision: "If you or anyone else has other insurance covering the same 'loss' as the insurance under this Coverage Part, we will pay only the excess over what should have been received from the other insurance. We will pay the excess whether you can collect on the other insurance or not."

(For simplicity, we hereafter refer to the general contractor as "general" and the electrical contractor as "sub.") The general's insurer paid approximately $450,000 for repairs when a fire occurred in the eighth floor generator/electrical switching room in the building. It then sought a declaratory judgment to determine which of the policies provided primary builders risk coverage for the damage. It appealed trial court judgment to the effect that the "other insurance" clauses were mutually repugnant, and that the two insurance companies should share payment of the claim pro rata, according to their respective policy limits.

The general's insurer asserted that its "other insurance" clause was a "hybrid super escape and excess" clause, relieving it if another policy would apply in the absence of its policy. It contended that the pertinent clause in the sub's policy was strictly of an excess nature

The court observed that each policy would pay the fire damage if the other did not exist. It found each pertinent clause to be an "excess" clause without material difference. Accordingly, it concluded that they were mutually repugnant and that the insurers should share payment pro rata. The judgment of the trial court was affirmed.

(THE AETNA CASUALTY AND SURETY CO., Plaintiff-Appellant v. CONTINENTAL INS. CO.ET AL., Defendants-Appellees. NCCourt of Appeals. No. 9226SC208. May 18, 1993. CCH 1993 Fire and Casualty Cases, Paragraph 4334.)