Excess Insurer May Recoup Settlement Payments from the Primary Insurer

In RSUI Indemnity Co. v. American States Insurance Co., No. 14-30033, 2014 U.S. App. LEXIS 18407 (5th Cir. Sept. 25, 2014), the Fifth Circuit Court of Appeals held no adjudicated excess judgment is required for an excess insurer to recoup settlement payments from the primary insurer whose alleged bad faith failure to defend the common insured caused the excess settlement.

In the underlying action arising from an automobile collision, counsel retained by the primary carrier, American States Insurance Co. (ASIC), for the insureds allegedly …

Continue Reading

Allstate Owes Primary Coverage To AI Due To Silent “Other Insurance” Provision

In this insurance coverage dispute the plaintiff, Valley Forge Insurance Company (VFI,) sought a declaration that the defendant, Allstate, was an insurer for and was obligated to defend and indemnify Granite Construction (Granite), on a primary basis with respect to an underlying construction-related lawsuit.

Granite entered into a subcontract agreement with RISA Management (RISA).  Pursuant to the agreement, RISA was required to procure Comprehensive Automobile Liability Insurance, naming Granite as an additional insured. The subcontract also stated that any other insurance maintained by Granite shall …

Continue Reading

Fifth Circuit Finds Prejudice, Upholds Excess Insurer’s Rights to Notice

Berkley Reg. Ins. Co. v. Phil. Indem. Ins. Co.
U.S. Ct. Apps. 5th Cir. (Tex.) Aug. 2, 2012

The underlying lawsuit involved a slip and fall with $1 million of primary coverage and excess/umbrella coverage of $20 million. The case went to trial and the jury awarded $1,654,663.50. Thereafter, the primary insurer demanded the excess insurer to pay the amount of the judgment in excess of the primary coverage amount. The excess insurer refused and contested coverage based on policy defenses including late notice, claimant …

Continue Reading

California Supreme Court Adopts All-Sums-With-Stacking Approach in Major Policyholder Victory

State of California v. Continental Ins. Co.
(Cal. Aug. 9, 2012)
In a much-anticipated decision, the Supreme Court of California ruled last week that several excess insurers were obligated to indemnify the State of California for all sums relating to the clean-up of the Stringfellow Acid Pits waste site, regardless of whether the damage occurred during the insurers’ policy periods. The court also held that the State could stack its policies from multiple years to maximize recovery.

The State sought indemnity from several insurers that …

Continue Reading

Multiple Claims from Same Product Defect Constitute Multiple Occurences for Purpose of Excess Trigger

Bausch & Lomb, Inc. v. Lexington Insurance Company

(W.D.N.Y December 28. 2009)

Bausch & Lomb brought an action against defendant Lexington Insurance Company seeking a declaration that Lexington was obligated to provide insurance coverage to Bausch & Lomb with respect to claims made against it by consumers for alleged injuries arising out of the use of Bausch & Lomb contact lens solutions. Bausch & Lomb claimed that it purchased umbrella liability insurance policies from Lexington for yearly periods from January 1, 2004 through January 1,

Continue Reading

Second Circuit Court Finds That Excess Carrier’s Participation in Settlement May Make Declaratory Judgment Moot

Lumbermens Mut. Cas. Co.v. RGIS Inventory Specialists, LLC

(2nd Cir., December 11, 2009)


After a district court granted summary judgment against an excess insurer regarding whether it received timely notice of an underlying personal injury claim, the excess carrier appealed to the Second Circuit.  While the appeal was pending, the excess insurer contributed $4.0 million towards settlement of the underlying personal injury claims.  As a result, the named insured and underlying claimants argued the appeal was moot in that the insurer could not

Continue Reading

New Causes of Action Asserted Against Excess Insurance Carrier for Underlying Asbestos Claims

LSG Technologies, Inc. v. US Fire Ins. Co.

(E.D.Texas, November 25, 2009)



Over two years after initially filing a complaint in the Eastern District of Texas, plaintiff, LGS Technologies Inc., amended its complaint against an excess insurance carrier seeking a declaration of coverage with respect to several underlying asbestos and mixed dust cases.   Plaintiff argues that one or more of its primary policies have been exhausted, triggering the commercial excess policies issued by U.S. Fire Insurance Co.  Specifically, plaintiff references seven policies, with

Continue Reading


Executive Risk Indemnity v. RSUI Indemnity

(W.D. Okla, October 15, 2009)


Executive Risk commenced this lawsuit alleging that RSUI is required to contribute to losses attributable to the respective carrier’s mutual insureds. In its complaint, Executive Risk does not dispute its coverage obligations in response to the underlying action; instead, it contends the same obligations extended to RSUI as well under an equitable contribution cause of action. Executive contends that coverage for the loss should be determined according to each policies respective limits. In

Continue Reading

New York’s Highest Court Denies Law Firm Excess Coverage for Client Fraud

Executive Risk Indem. v. Pepper Hamilton LLP

(N.Y. Oct. 20, 2009)

New York’s highest court held that Philadelphia-based Pepper Hamilton LLP is not entitled to excess insurance coverage for litigation arising from its client’s securities fraud. The coverage litigation stemmed from fraud perpetrated by Pepper Hamilton’s client, a company that serviced the vocational portion of the student loan market. The client repackaged loans acquired from other lenders into certificates, which it sold to investors. Pepper Hamilton prepared memoranda used by the client in connection with

Continue Reading