Washington Court of Appeals holds that “Washington law does not, in fact, force insurers to pay for losses that they have not contracted to insure”

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On 7 April 2008, the Washington Court of Appeals issued its decision in Polygon Northwest Co. v. American National Fire Ins. Co. et al., concerning trigger-of-coverage, contribution, and allocation of damages between multiple primary and excess insurers on the risk in a construction defects case.* Three of these holdings are most noteworthy. First, the Polygon Court held that an excess policy triggered when the insured’s liability exceeds the primary’s limits, notwithstanding non-payment due to insolvency. However, the excess insurer is not liable for the share of its insolvent underlying primary. Finally, the Court held that a statutory award of attorney’s fees against the insured is not a “supplemental payment” under the primary policies’ definition thereof.

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