Archives: Excess

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Failure to Comply With Protective Safeguards Endorsement Results in Loss of Coverage

A Protective Safeguards Endorsement (“PSE”), as defined by my friends at IRMI, is “[a] property insurance endorsement that makes it a condition of coverage that the protective safeguards cited in the endorsement (such as an automatic sprinkler system or night watch guard) be in operation at all times except when the insurer has been notified of … Continue Reading

Insurance Archaeology and the London Market

Long-tail coverage disputes often involve multiple policies issued over multiple policy periods over multiple layers of insurance. Sometimes the potential relevant policies go back decades or more. Locating these ancient policies is an enormous task. Locating the placing, underwriting and claims files that go along with these policies is even more difficult. Compound all of … Continue Reading

Delaware Supreme Court Clarifies New York’s Injury-in-Fact Trigger of Coverage for Asbestos Losses

Whether coverage for asbestos personal injuries is triggered under an injury-in-fact theory or under an exposure theory makes a world of difference to which insurance policies must respond to the asbestos losses. Asbestos, as we know, causes asbestos-related diseases that often manifest 20 or 30-years after the initial significant exposure to asbestos fibers. Most experts … Continue Reading

In California, Excess Insurer Can Sue Primary for Failure to Settle Within Limits in Absence of Judgment

Recently, in ACE American Ins. Co. v. Fireman’s Fund Ins. Co., 16 C.D.O.S. 8430, the California Court of Appeal (Second District) addressed a split between divisions of that district regarding whether, as a matter of law, an excess insurer could sue a primary for subrogation where a settlement within primary limits was rejected and the … Continue Reading

New York Court of Appeals Reaffirms Contract Language Controls Allocation and Exhaustion Methodologies

Long-tail claims from asbestos and other toxic exposures have plagued policyholders and their insurers for decades. Myriad issues arise when trying to determine when injuries are incurred, how policies are triggered, how liability should be allocated among multiple policies and when excess policies are required to cover the losses. None of this is easy and … Continue Reading

Fifth Circuit Decides That An Above-Limits Settlement Payment By An Insured Does Not Trigger Excess Coverage Unless The Primary Carrier Actually Pays Policy Limits

In a recent case, the United States Court of Appeals for the Fifth Circuit considered whether a below-limit payment by a primary insurance carrier could trigger excess insurance coverage in circumstances where the policyholder settled the underlying action for an amount far in excess of primary insurance policy limits. Martin Resource Mgmt. Corp. v. Axis Ins. … Continue Reading

Is an Excess Insurer Bound By Decision of Workers’ Compensation Appeals Board?

Certain types of personal injuries are often adjudicated, at least in part, in front of quasi-governmental boards. For example, where an employer self-insures for workers’ compensation, claims by employees will be adjudicated before the workers’ compensation board governing that employer if they are not paid as demanded. Nearly every employer that self-insures for workers’ compensation … Continue Reading

Sometimes an Insurance Policy Provision Means What It Says

Consent to settle clauses are fairly typical in insurance policies. Basically, a typical consent to settle clause provides that “no claims expenses shall be incurred or settlements made, contractual obligations assumed or liability admitted with respect to any claim without the insurer’s written consent, which shall not be unreasonably withheld.” So what happens if the … Continue Reading

Settling in Excess of Policy Limits May Still Result in Liability to Other Insurer

Applying Florida law, the Eleventh Circuit has held that a liability insurer that settled, for more than its policy limits, a tort claim against its named insured was liable for breach of contract to a second insurer that defended another insured for the same occurrence and also settled above its policy limits.  Nova Cas. Co. … Continue Reading
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