
USCA1 Opinion

	




          June 14, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1791                           SYLVIA BRACERO MARTINEZ, ET AL.,                                Plaintiffs, Appellees,                                          v.                           PUERTO RICAN CARS, INC., ET AL.,                                Defendants, Appellees.                                      __________                       UNITED STATES FIDELITY & GUARANTEE CO.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Richard A. Sherman, Rosemary B. Wilder,  Law Offices of Richard A.            __________________  __________________   _________________________        Sherman, P.A., Armando Lasa and Lasa, Escalera & Reichard on brief for        _____________  ____________     _________________________        appellant.            Dario  Rivera-Carrasquillo,  Cordero, Miranda  &  Pinto, Ramon  L.            __________________________   __________________________  _________        Walker-Merino,  Reichard,  Calaf  & Walker,  Marcos  Valls-Sanchez and        _____________   __________________________   _____________________        Cobian & Valls on joint brief for appellees.        ______________                                 ____________________                                 ____________________                 BOUDIN,  Circuit Judge.   This  case involves  a dispute                          _____________            about  insurance  coverage arising  out  of  a motor  vehicle            accident  in  Puerto  Rico.    The  appellant  United  States            Fidelity & Guaranty Company ("USF&G") is an insurance carrier            which,  along with  other  carriers, was  held  liable for  a            portion  of  the judgment  in favor  of  the victims.   USF&G            contends  that its policy did  not cover the  accident at all            and,  alternatively,  disagrees  with  the  apportionment  of            liability among  insurers.   On  both  issues--liability  and            apportionment--we  conclude that  the district  court reached            the right result on the unusual record before it and affirm.                                          I.                   In  August  1987, George  Fieldman,  a  resident of  New            Jersey,  went on  vacation to  Puerto Rico  with his  family,            including  his  stepdaughter,  Theresa Blacketor.    Fieldman            rented a  car  from  Puerto Rican  Cars,  Inc.,  and  allowed            Blacketor to drive it as well.  On August 30, 1987, Blacketor            was  driving the car with Fieldman in the passenger seat when            she  collided  with  a  car  driven  by  Luis  Cordova  Munoz            ("Cordova").   Cordova  and  two    of  his  passengers  were            seriously injured.  Another passenger was killed.                 In  August  1988, Cordova,  the  injured  passengers and            representatives of the deceased passenger  ("the plaintiffs")            filed  lawsuits  against  Blacketor, Fieldman,  Puerto  Rican            Cars,  and  three insurance  companies.    The insurers  were                                         -2-                                         -2-            Farmers' Insurance Exchange ("Farmers"), Blacketor's insurer;            CNA  Casualty of  Puerto Rico  ("CNA"), which  insured Puerto            Rican Cars and  had also issued a policy to  Fieldman when he            rented  the  car; and  USF&G, which  had  issued a  policy to            Weiner, Ostrager,  Fieldman, and  Zucker, the New  Jersey law            firm in which Fieldman is a partner.                   After  the cases  were  consolidated,  Fieldman filed  a            claim against USF&G, contending that he was covered under the            law  firm's  automobile  insurance  policy.     USF&G  denied            coverage, asserting that  the policy listed  the law firm  as            the  named insured  and did  not cover  Fieldman when  he was            vacationing in Puerto  Rico, was utilizing a  rented car, and            was  not engaged in partnership business.  The meaning of the            USF&G policy, as written and as allegedly implemented, is the            main subject of this appeal.                 On April  9, 1990,  Fieldman moved for  summary judgment            against USF&G.  He  was joined by Blacketor, who  argued that            she  too  was covered  by the  USF&G  policy because  she was            driving Fieldman's rented car  with his permission.  Fieldman            included with his motion  a statement of uncontested material            facts, asserting  that USF&G had regularly  paid claims under            the  policy  for family  members  of  individual partners  in            accidents unrelated  to partnership business.   USF&G did not            contest this  portion of  the statement, but  opposed summary                                         -3-                                         -3-            judgment  on  the ground  that the  insurance policy  did not            cover the non-business accident in this case.                 The  magistrate  judge to  whom  the  case was  referred            issued his report on June 13, 1990, recommending that summary            judgment  be entered in favor of Fieldman.  He concluded that            the USF&G policy was ambiguous and, applying Puerto Rico law,            he construed the policy in favor of Fieldman.  Alternatively,            the  magistrate  judge said  that  because  of USF&G's  prior            payment  of claims  for partners'  family members,  USF&G was            estopped   from  arguing   that   coverage  was   limited  to            partnership-related  activities.  The  district judge adopted            the report on July 5, 1990.                   Both   USF&G   and    Blacketor   filed   motions    for            reconsideration under  Fed. R.  Civ. P.  59(e).   USF&G again            argued  that the  policy  did not  cover the  accident, while            Blacketor asked  for a  ruling that  she, like Fieldman,  was            covered  by the USF&G policy.   Both requests  were denied on            February 4,  1991, and the district court entered judgment in            favor of Fieldman  on February  20, 1991.   On May 31,  1991,            USF&G filed a  motion to  modify the judgment  under Fed.  R.            Civ.  P.  60(b)(6),  relying  upon new  evidence  to  explain            USF&G's past  practice.   The magistrate judge  recommended a            denial  of this motion on December 10, 1991, and the district            judge concurred on April 1, 1992.                                           -4-                                         -4-                 In the meantime, the parties reached a global settlement            as to most issues.  It provided that (1) the plaintiffs would            receive a total  of $750,000 to be  divided among themselves,            and (2) the insurance carriers together would contribute that            sum and  then litigate among themselves  to apportion shares.            On  April   18,  1991,   the  district  judge   approved  the            settlement.  The  court ordered Farmers and CNA to contribute            $300,000  each,  and USF&G  to  contribute  $150,000.   These            payments were provisional.  The court reserved final decision            on  how  the $750,000  liability should  be shared  among the            insurers.                 Finally, on June 17, 1993, the district judge ruled that            each insurer should bear a share of the settlement  allocated            in  proportion to  its  own policy's  upper liability  limit.            This  placed the greatest burden on CNA, which had issued two            policies,  each with a $300,000  limit.  USF&G, however, also            bore a  greater burden than its  initial contribution because            its  policy carried a limit  of $500,000; based  on the upper            limits of the policies, USF&G's policy represented 5/14ths of            the total coverage; and its share of the total settlement was            5/14th of $750,000  or $267,857.14.  The  court's final tally            was as follows:            Carrier        Policy Limit   Insured     Liability Share            _______        ____________   _______     _______________            USF&G          $500,000       Fieldman    $267,857.14                                         -5-                                         -5-            CNA            $300,000       Fieldman    $160,714.29            CNA            $300,000       PR Cars     $160,714.29            Farmers        $300,000       Blacketor   $160,714.29                         __________                         $1,400,000                   $749,999.91                                                       __________                 The court ordered USF&G  to reimburse Fieldman for legal            expenses.   In addition, the  court ruled that  Blacketor was            also covered  under the partnership policy  and ordered USF&G            to  reimburse Farmers  for  expenses incurred  by Farmers  in            defending  Blacketor.  A final judgment  was entered the same            day.  This appeal by USF&G followed.1                                         II.                 In this  court, USF&G's main argument is that its policy            did not cover either  Fieldman or Blacketor for  the accident            in  question.   In  substance  it  contends  that the  policy            clearly excluded coverage, that  any past practice suggesting            coverage for non-business accidents was adequately explained,            and  that no  estoppel has been  made out against  USF&G.  In            this quite unusual  case, we  think that USF&G  has left  the            record in  such a  posture that  liability could properly  be                                            ____________________                 1Following the  appeal, it appears that  CNA advised the            district court that  its Puerto Rican  Cars policy limit  was            $500,000, rather  than the  $300,000 assumed by  the district            court.   A  motion to  adopt amended  figures has  been filed            without  opposition  but  has  not  yet been  granted.    The            substitution  of the  asserted  new figures--CNA  ($375,000),            USF&G ($234,375) and Farmers ($140,625)--would not affect the            issues presented on this appeal.                                         -6-                                         -6-            imposed upon it and that its efforts to correct the situation            came too late.                 We  start, as  is  proper in  contract  cases, with  the            policy language.   The USF&G insurance  contract was entitled            "Business Auto Policy," and Fieldman's law firm was listed in            item 1  as the "named  insured," the firm's  business address            being  given  as the  named  insured's address.    The policy            stated  that "you are an  insured for any  covered auto," and            that "`you'  and `your' mean the person or organization shown            as  the  named  insured . . .  ."    For liability  coverage,            defined  in detail  elsewhere in  the policy,  USF&G promised            that  it "will pay all sums the insured legally must pay"--up            to   the   policy  limit--on   accidents   involving  covered            automobiles.                 Which automobiles were "covered" was the subject of item            2 of the  policy, entitled "Schedule of Coverages and Covered            Autos."   The definition of covered auto depended on the type            of  insurance  coverage.   For  liability coverage,  "covered            autos" were said to  include "ANY AUTO."  Putting items 1 and            2 together  with the basic definition  of liability coverage,            the  policy  by its  terms insured  the  law firm  of Weiner,            Ostrager, Fieldman and Zucker against liability for accidents            involving any automobile.  Nothing else in the lengthy policy            casts much light on the issue before us.                                           -7-                                         -7-                 If the language of  the policy were taken  in isolation,            we would agree  with USF&G  that the policy  would not  cover            liability   incurred  by   a   partner  in   the  course   of            transportation  unrelated to the partnership's business.  The            reason  is that  the policy  insures the  partnership against            liability due  to automobile accidents.   In the  normal case            the  partnership would  be  liable  for automobile  accidents            growing  out of the conduct of its  law firm business, but no            one suggests that Fieldman's  Puerto Rico vacation trip falls            into  that  category  or   that  the  partnership  bears  any            liability in this case.   See Burnsed v. Florida  Farm Bureau                                      ___ _______    ____________________            Cas. Ins. Co., 549 So. 2d 793 (Fla. App. 5th Dist. 1989).            ____________                 But Fieldman and Blacketor have a second string to their            bow.    They argue  that whatever  the  bare language  of the            policy, its actual implementation  by USF&G was broader; that            USF&G  in fact regularly had extended coverage in the past to            any family member driving a partner's car with his permission            regardless   of  whether   partnership  business   was  being            conducted  at  the time  of  the accident.    This allegation            underpins two  doctrinally separate arguments.   One argument            is that the  policy, properly interpreted in  light of actual            performance, has this  wider meaning; and  the other is  that            USF&G is estopped to claim otherwise.                 To show past practice Fieldman's summary judgment filing            asserts  that when the USF&G  policy was issued, Fieldman was                                         -8-                                         -8-            given to understand  that it covered  all the automobiles  of            the  partners; that these included three of his own cars, two            of  which were  used by  his wife  and himself  but never  on            partnership  business;  that insurance  coverage certificates            were  furnished for these cars as required by New Jersey law;            and  that USF&G  paid claims  without question  on accidents,            unrelated  to partnership  business, where  his wife  was the            driver.            Remarkably,  when  USF&G filed  its  opposition,  it did  not            trouble to  address these  contentions directly.   Rather, it            asserted   that  the   policy  did  not   cover  non-business            accidents, adding cryptically:                      "In  this particular  case, the  law firm                      did not hire the  vehicle, nor did one of                      the partners hire the vehicle for the law                      firm.   However,  the autos  described in                      the schedule of covered autos are assured                      under      the      insurance      policy                      notwithstanding  the  purpose of  the use                      given to them."                 The first  question that arises in  considering Fieldman            and Blacketor's "past practice" argument is whether the USF&G            policy  so  clearly  excluded  coverage  that   no  extrinsic            evidence is  admissible to  construe it.   Extrinsic evidence            comes  in different  types and  weight, and  ambiguities vary            both in kind  and degree.  In truth, the  law on questions of            ambiguity  and extrinsic  evidence is  clouded in  confusion:            courts  often do  not agree  with one  another and  what they                                         -9-                                         -9-            assert as doctrine cannot always be squared with what they do            in practice.  3 A. Corbin, Contracts   542A (1960).                                          _________                  The   precedents in the  jurisdictions concerned2 leave            us  doubtful  whether in  the  first instance  New  Jersey or            Puerto  Rico courts would admit evidence as to how the policy            was actually implemented in order to vary the meaning of this            seemingly  clear policy  (estoppel is  another matter).   The            "practical  construction" of contract  language, as evidenced            by the  parties' actions,  is often  said  to deserve  "great            weight,"  A. Farnsworth, Contracts   7.13 at 535 (1990).  But                                     _________            while  the New Jersey  and Puerto Rico  courts often consider            past practice,  courts in  both jurisdictions have  said that            insurance  policies should  be construed  according to  their            language unless they are found to be ambiguous.3                 In  all events,  we  need not  definitively resolve  the            extrinsic-evidence  issue  because in  this  case  we face  a                                            ____________________                 2We  say "jurisdictions"  because this  appeal has  been            briefed  on  the premise  that  Puerto Rico  law  governs the            interpretation of the USF&G agreement.  This assumption is at            least doubtful:  the policy was made in New Jersey to provide            automobile  insurance for a New Jersey law firm.  There is no            indication that  Puerto Rico  has any connection  with either            the insurer  or the law  firm that  would lead its  courts to            apply Puerto Rico law to the policy.                 3Compare Flint Frozen Foods, Inc. v. Firemen's Ins. Co.,                  _______ ________________________    __________________            86 A.2d 673,  674 (N.J.  1952) (terms of  policy govern)  and            Velez-Gomez  v. SMA  Life Assur.  Co., 8  F.3d 873  (1st Cir.            ___________     _____________________            1993)  (same under Puerto Rico law) with Kearny PBA Local No.                                                     ____________________            21  v.  Town  of  Kearny,  405  A.2d  393,  400  (N.J.  1979)            __      ________________            ("polestar"  is  intent of  parties  descended  by any  means            including  "the parties'  conduct"), and  Merle v.  West Bend                                                      _____     _________            Co., 97 P.R.R. 392, 399 (P.R. 1969) (same).            ___                                         -10-                                         -10-            singular circumstance:   USF&G  has admitted that  the policy                                                ________            does  not mean  what  its  language  seems  to  say.    After            reconsideration  had  been  denied  by  the  district  court,            someone  at USF&G  apparently woke up  and realized  that the            record  did not  reflect an  adequate explanation  of USF&G's            past payment of non-business claims under the policy.  On May            31, 1991, USF&G filed a motion for relief from judgment under            Fed. R. Civ.  P. 60(b)(6).   This motion  for the first  time            spelled  out a  possible explanation  by USF&G  to Fieldman's            claim relating to USF&G's past practice.  The motion prefaced            this answer  by saying blandly that  previously "the evidence            supporting USF&G's position could not be obtained for reasons            beyond [USF&G's] control.  Finally, it was obtained."                  The evidence, USF&G's motion asserted, showed that prior            claims paid under the policy, to cover accidents  by Fieldman            family members unrelated to the partnership's  business, were            paid because  the policy covered  certain listed automobiles,            additional premiums were paid  for this coverage, and "[o]nly            in  these  circumstances  did  USF&G paid  (sic)  claims  not            related to the  business."  Attached were several  pages from            the  policy  and some  documents  relating  to family  member            claims previously submitted  to USF&G pertaining to  specific            cars.4                                              ____________________                 4The  pages from the policy show  that certain cars were            listed  as owned  by "the  insured" but  the policy  does not            explain that these are actually owned not by the insured (the                                         -11-                                         -11-                 The USF&G motion, read generously, may be taken to claim            that  the insurance policy  provided two different categories            of  liability coverage:  first,  it covered  "any" automobile            (owned or  rented or borrowed) being used  in connection with            partnership  business;  and  second, based  on  an additional            premium,  the policy  covered listed  automobiles (apparently            owned  by individual  partners)  for  all accidents,  whether            driven  by a partner or family member  and whether or not the            use  had  any  connection  with  the partnership's  business.            Based on the information  we have today--it still may  not be            complete--one might  guess  that  the  insurer  "pancaked"  a            second layer  of coverage  on the underlying  business policy            but did  not spell  out  this coverage  in precise  language.            Thus   the  policy   covered  some   non-business  automobile            liability  but did  not  clearly define  the  limits of  that            coverage.                 However one might construe the policy language judged in            a vacuum, we  think that it would be  patently unjust in this            unusual  case to  conclude  that the  policy language  limits            liability to  business-related accidents where, as  here, the            insurer has admitted that  the policy does cover non-business            accidents   in  some   circumstances.     If  we   limit  our            consideration  of  actual  practice  to  the   statements  of                                            ____________________            law  firm) but by individual  partners.  Nor  does the policy            provide  explicitly  that these  cars  are  covered for  non-            business use.                                         -12-                                         -12-            Fieldman  in  his  summary  judgment  motion--statements  not            unexpectedly very favorable to his  interpretation--then past            practice resolves  the matter  in his  favor.5   The question            remains  whether  the  Rule  60(b) motion  should  have  been            granted, entitling USF&G to the benefit of its description of                                                       ___            actual performance  and therefore to  a trial to  resolve the            factual conflict.                 The Rule 60(b)  motion was vigorously opposed,  Fieldman            claiming that it was  untimely and denying by affidavit  that            any  additional  premiums  had been  paid.    The motion  was            referred  to the magistrate  judge who on  December 10, 1991,            recommended that  it be denied:   he said that  USF&G had had            the duty to controvert Fieldman's contentions at the time  it            answered  his   summary  judgment  motion;  that   USF&G  had            possessed then the documents  now belatedly offered; and that            nothing in the Rule 60(b) motion disproved USF&G's payment of            claims unrelated to the partnership business.  On review, the            district court summarily upheld the magistrate judge.                                            ____________________                 5We ignore the possibility that what Fieldman might have            been  entitled to is a jury  trial and not a summary judgment            in his favor.   When  and whether the  district court  should            take  a contract  issue to be  a matter for  the judge rather            than  the jury  where  the  contract  is  ambiguous  but  the            illuminating  extrinsic evidence  is undisputed  and presents            issues  of some difficulty.  USF&G has not sought reversal on            the  ground  that  the  issue  of  policy  interpretation  on            undisputed  facts was for the jury rather than the judge, and            we will not pursue this possibility further.                                         -13-                                         -13-                 The USF&G argument  and supporting documents offered  in            the Rule 60(b) motion might, if timely offered, have required                                         _________________            the  district  court  to  deny  Fieldman's  summary  judgment            motion.   One could argue  that the policy  language does not            directly spell out USF&G's theory of coverage and that at the            very least  an affidavit should  have been  supplied to  show            that an extra premium was paid and that the only non-business            claims ever paid were  for listed automobiles.  On  the other            hand, a cautious district judge would likely have declined to            grant summary judgment for Fieldman once USF&G had coherently            explained its payment of past non-business claims.                 But the  explanation by  USF&G, and the  limited support            for  it, came  too late.   The time  for USF&G  to submit its            opposition was in April 1990, not in May 1991, long after the            summary judgment  motion had been  granted.  Nothing  in this            record  even begins  to show  due diligence  by USF&G,  or to            explain why it did  not offer its rationale and  documents at            the  proper time.   Teamsters  v. Superline Transp.  Co., 953                                _________     ______________________            F.2d  17 (1st  Cir. 1992).6   The  notion that  after several            years of litigation  the district court should start  over to            consider this new submission is without basis.  Thus, we need                          ___                                            ____________________                 6The motion, although filed under Rule 60(b)(6), appears            more  properly  based  on  "excusable   neglect"  under  Rule            60(b)(1), although the neglect here has not been excused.  In            any  event  the motion  certainly  does  not demonstrate  the            "extraordinary  circumstances" required  for  a motion  under            Rule  60(b)(6).  See Gonzalez v. Walgreens Co., 918 F.2d 303,                             ___ ________    ____________            305 (1st Cir. 1990).                                         -14-                                         -14-            not reach the  estoppel claim asserted  by Fieldman, a  claim            whose reliance  requirement might prove to  be a considerable            obstacle for  Fieldman (given  his own purchase  of insurance            from CNA when renting the car in question).                   Blacketor, as well as  Fieldman, is entitled to coverage            under the USF&G policy  for legal expenses.  In light  of the            construction of the policy achieved by Fieldman, Blacketor is            covered under  the "omnibus clause" of  the insurance policy.            That clause, with irrelevant exceptions, extends  coverage to            "[a]ny one . . . using  with your permission  a covered  auto            you  own, hire  or  borrow".    USF&G  has  not  denied  that            Blacketor was  driving the  auto with Fieldman's  permission.            Whether  some  division of  the  expenses  between USF&G  and                           ________            Farmers  should have been ordered has not been argued on this            appeal.                 This outcome may appear at first blush to be a harsh one            for USF&G, for it could well have  deserved to prevail on the            literal  language of the policy, had it not admitted that the            policy goes beyond business  use.  At the same time, if given            the  full benefit of its  Rule 60(b) assertions,  it might at            least  be entitled  to a  remand for a  trial on  the factual            issues posed  by the conflict between  the Fieldman affidavit            and the Rule 60(b) motion.  See generally U.S.  Fire Ins. Co.                                        _____________ ___________________            v. Producciones  Padosa, Inc., 835  F.2d 950,  953 (1st  Cir.               __________________________                                         -15-                                         -15-            1987).   It has managed instead  to achieve the worst of both            worlds.                   Few  tears  should be  shed  for  USF&G.   Its  original            assertions  could easily have led a court to believe that the            policy was limited to business  use although USF&G now admits            that  the policy  was not  so limited.   Its  quite different            description of the  situation occurred only after it had lost            before both the magistrate judge and the  district court, and            even then the explanation  is poorly supported.  There  is no            reason  why   other  parties   should  be  forced   in  these            circumstances to  face the  expense of further  litigation to            determine whether USF&G's belated explanation is correct.                                          III.                 USF&G  contends that  even  if it  is  liable under  its            policy,  the  insurance coverage  should  not  be apportioned            according  to  the  upper  coverage limits  of  each  policy.            Instead,  it argues inter  alia that each  insurer should pay                                _____  ____            equally  up to  the policy  limits of that  insurer's policy,            with the higher-limit insurer making up the balance.  On this            issue, we follow the  parties in treating Puerto Rico  law as            determinative.7                                            ____________________                 7This issue,  unlike  the  question  of  USF&G's  policy            coverage,  involves  a  rule  to  apportion  liability  where            several  different contracts  (including two  made  in Puerto            Rico) conflict as applied to an  accident occurring in Puerto            Rico.  Since all parties agree that Puerto Rico law controls,            we  forego an independent choice of law analysis.  See, e.g.,                                                               ___  ____            Commercial Union Ins. v. Walbrook Ins. Co., 7 F.3d 1047, 1048            _____________________    _________________                                         -16-                                         -16-                 Each of the  policies, we are  told, contains an  "other            insurance" clause  which provides that for  this accident the            insurer's liability  will only  be in  excess in  amounts due            under other policies.8  See generally Hennes Erecting Co.  v.                                    _____________ ___________________            National  Underwriters Fire  Ins.  Co., 813  F.2d 1074,  1077            ______________________________________            (10th  Cir. 1987).  This "after you, Alfonse," tactic has not            impressed the  courts, which often nullify  "other insurance"            clauses  when  they conflict.   See  R.  Keeton &  A. Widiss,                                            ___            Insurance Law   3.11(a)(3),  at 258-59 (1988).  The  district            _____________            court properly  refused to take these  clauses literally, and            the parties do not directly dispute this refusal.                 The  question, then, is how a court in Puerto Rico would            apportion liability  among carriers  where liability  is less            than the total amount of coverage provided by those policies.            The other insurance carriers rely upon the rule,  followed in                                            ____________________            n.1 (1st Cir. 1993).                 8The "other  insurance" clause of the  USF&G policy, the            only policy furnished to us on appeal, states:                 1.   For any covered auto you  own this policy                                      auto you                      provides  primary  insurance.    For  any                      covered auto you don't own, the insurance                              auto you                      provided  by this  policy is  excess over                      any other collectible insurance . . . .                 2.   When  two or  more policies cover  on the                      same basis, either  excess or primary, we                                                             we                      will pay  only our  share.  Our  share is                                     our          Our                      the  proportion that  the  limit  of  our                                                            our                      policy bears  to the total of  the limits                      of all the policies covering on the  same                      basis.                                         -17-                                         -17-            a  majority  of  jurisdictions,  that   liability  should  be            prorated according to the upper limits of the policies.  See,                                                                     ___            e.g.,  St. Paul Mercury Ins. Co. v. Underwriters at Lloyds of            ____   _________________________    _________________________            London, 365 F.2d 659 (10th Cir. 1966); R. Keeton & A. Widiss,            ______            supra,   3.11(a)(3).  USF&G  offers several theories aimed at            _____            reducing its share.  The district court followed the majority            rule.                 Interestingly,  the USF&G  policy (quoted  above) itself            provides that the majority rule, apportioning liability based            on  the upper limit of  each policy, should  be applied where            two  or more policies cover  the accident on  the same basis,            either excess or primary.  If (as represented to  us) each of            the  policies at  issue here treats  its coverage  as excess,            then arguably USF&G has contracted for the very apportionment            rule applied by the district court in this case.   Cf. Aviles                                                               ___ ______            v.  Burgos,  783 F.2d  270, 282  (1st  Cir. 1986)  (where the                ______            policies  adopt  the  same  apportionment  rule  it   governs            automatically).                 The parties have not cited to us any caselaw from Puerto            Rico courts  that directly  governs the  apportionment issue.            The majority rule has been  questioned, see Reliance Ins. Co.                                                    ___ _________________            v. St  Paul Surplus Lines Ins.  Co., 753 F.2d 1288  (4th Cir.               ________________________________            1985)  (adopting  the so-called  equal  shares  rule); and  a            leading  treatise has said that the majority rule is "open to            question in a number of contexts."  Keeton & Widess, supra,                                                                   _____                                         -18-                                         -18-            3(11)(e).    In  truth,  we  have  little  basis  for  saying            confidently how Puerto Rico would resolve the issue.                   In  the present case, we are not disposed to look beyond            the majority rule invoked by the district court.  It is still            the governing  rule in  most jurisdictions,  and none  of the            alternatives   proposed   appears    to   be   without   some            shortcomings.  The  majority rule is also the rule stipulated            by the USF&G policy  for cases where each of  the conflicting            policies  purports  to  disclaim  primary  coverage.   Absent            guidance from the  Puerto Rico  courts or  a more  persuasive            case for  reexamining that  rule, we think  that Puerto  Rico            should be assumed to follow the majority rule.                 Affirmed.                 ________                                         -19-                                         -19-
