Also known as: mutual repugnancy · repugnant · repugnancy
Written by attorneys · grounded in primary & secondary sources — see below
Conflicting provisions in separate insurance policies that cannot be reconciled with each other. Courts treat the provisions as inoperative and prorate liability between the insurers.
Magnolia Foods holds two liability policies covering the same warehouse fire. Each policy states it is excess over any other insurance. Because the clauses directly contradict each other, a court deems them mutually repugnant and requires both insurers to share the loss on a pro-rata basis.
Matrix Technologies is insured under two policies for a product-liability claim. One policy contains an escape clause that voids coverage if other insurance exists. The second policy contains an identical escape clause. The court finds the clauses mutually repugnant and holds both insurers liable as primary carriers.
Monarch Pharmaceuticals faces a suit covered by two policies. One declares itself primary and the other excess. The court concludes the provisions are mutually repugnant because each attempts to shift primary responsibility to the other and therefore prorates the defense costs between the carriers.
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Clauses are mutually repugnant when each purports to make the policy excess or to escape liability in the presence of other coverage, rendering them irreconcilable. Courts then disregard both clauses and treat the policies as primary, prorating the loss.
No. Courts also apply the doctrine to conflicting escape clauses and to excess-escape combinations that cannot be harmonized. The key is that the provisions cannot logically coexist without nullifying each other.
Each insurer is treated as providing primary coverage. Liability is then allocated pro rata according to the policy limits, ensuring the insured receives the full benefit of both policies without gaps created by the conflicting language.