In this Supreme Court of Kentucky judgment the court held that, where excess clauses in two liability insurance policies were mutually repugnant, the loss should be apportioned equally between the two insurers.

 The appeal court said the test for mutual repugnancy was whether the two clauses are “indistinguishable in meaning and intent”.

The court said that the clauses of both policies sought to accomplish the exact same thing, that is to limit coverage in light of other available insurance by making its own coverage excess to other valid and collectable insurance. 

While in other cases the courts have apportioned losses on a pro-rata basis, in light of the particular circumstances the equal shares was warranted on the facts of the case based on the co-primary status of the two insurers for both policyholders as well as the identical limits of liability. 

Even absent identical language, two clauses may be deemed mutually repugnant if their intent and meaning are the same.