Excess insurance/exhaustion

The United States District Court for the District of Kansas, applying Kansas law, has held that an excess E&O insurer was required to advance defense costs where coverage under a potentially responsive D&O policy had not yet been resolved and no other coverage was available.  Bedivere Ins. Co. v. Blue Cross & Blue Shield of Kansas, Inc., 2019 WL 5819612 (D. Kan. Sept. 30, 2020).

Continue Reading Excess E&O Insurer Must Reimburse Defense Expenses Pending Resolution of Insured’s Coverage Dispute with Primary D&O Insurer

The United States Court of Appeals for the Ninth Circuit, applying California law, has held that an excess insurer could not second-guess the payment decisions of underlying insurers absent a showing of fraud or bad faith, or a policy provision expressly granting the insurer such rights.  Axis Reinsurance Co. v. Northrop Grumman Corp., 2020 WL 5509743 (9th Cir. Sept. 14, 2020).

Continue Reading Ninth Circuit: Excess Carrier Not Entitled to Challenge Payment Decisions of Underlying Carriers

Applying California law, the United States District Court for the Central District of California has held that a follow-form excess insurer was not bound by the primary insurer’s decision to pay a settlement because the settlement constituted uninsurable disgorgement that did not trigger the excess insurer’s policy.  Axis Reinsurance Co. v. Northrop Grumman Corp., No. 2:17-CV-8660 (C.D. Cal Nov. 16, 2018).

Continue Reading Excess Insurer Not Bound by Primary Insurer’s Payment of Uninsurable Disgorgement Settlement

The United States District Court for the Northern District of Illinois, applying Illinois law, has held that a government-issued subpoena constituted a Claim under the directors and officers liability policies at issue, thus allowing a company’s coverage action to proceed against its primary and excess insurers.  Astellas US Holding, Inc. v. Starr Indem. & Liab. Co., 2018 WL 2431969 (N.D. Ill. May 30, 2018).  The court also held that the company’s excess insurers were appropriate parties to the action even though the underlying limits had not been exhausted.

Continue Reading Court Holds that Government-Issued Subpoena Constitutes a Claim

The United States Court of Appeals for the Ninth Circuit has held that a New York choice of law provision in a policy issued by an international insurer is enforceable and that, under either New York or California law, an excess policy was not triggered when the underlying policy limits were not exhausted through payments by the underlying insurers.  Cooper v. Certain Underwriters at Lloyd’s, 2018 WL 1548208 (Mar. 30, 2018).

Continue Reading Ninth Circuit Holds Excess Policy Unambiguously Required Exhaustion of Underlying Limits by Insurers Under Either New York or California Law

The United States District Court for the Northern District of California has denied an insured’s motion to dismiss an umbrella insurer’s declaratory judgment action.  Great American Ins. Co. v. Quintana Homeowners Ass’n., 2017 WL 3453394 (N.D. Cal. Aug. 11, 2017).  The insurer alleged that it had no duty to defend or indemnify after exhaustion of the primary policy.  The court concluded that the insurer’s complaint sufficiently alleged that the claims for declaratory and injunctive relief in the underlying action did not constitute covered “Loss” under the policy.

Continue Reading Insurer’s Allegations that Declaratory and Injunctive Relief Are Not Covered Loss Survive Motion to Dismiss

An Illinois intermediate appellate court has held that excess insurance policies requiring “actual payment” by an underlying insurer for exhaustion purposes were not triggered where the insurer “pledged” its policy as collateral and agreed to advance defense costs until its policy was exhausted but did not make “actual payment” in legal currency. Ritchie v. Arch Specialty Ins. Co., 2017 IL App (1st) 160413-U (Ill. App. Ct. Mar. 31, 2017).

Continue Reading Underlying Insurer’s Agreement to Pay Limits Does Not Trigger Exhaustion for Excess Policy Requiring “Actual Payment”

The United States Court of Appeals for the Sixth Circuit, applying Michigan law, has held that a policy provision requiring an excess insurer’s written consent before entering into a settlement was not ambiguous and therefore barred coverage under the excess policy.  Stryker v. National Union Fire Ins., 2016 WL 6818853 (6th Cir. Nov. 18, 2016).

Continue Reading Excess Insurer’s Unambiguous Consent-to-Settlement Provision Bars Coverage