Excess Policies

News & Analysis as of

The Tenth Circuit rejects excess insurers’ implied duty to investigate and initiate settlement negotiations

Interpreting Oklahoma law, the US Court of Appeals for the Tenth Circuit recently held that the duty of good faith and fair dealing does not require that an excess insurer, unlike a primary insurer, affirmatively investigate...more

Insurance Recovery Law - July 2015 #3

Two Years, Too Long for Coverage Under Claims-Made-and-Reported Policy - Why it matters: Claims-made-and-reported policies require that the claim be both made against the insured and reported to the insurer within the...more

Hawaii Supreme Court Holds a Primary Insurer Cannot Gamble with the Excess Insurer’s Money

On June 29, 2015, in responding to a certified question from the U.S. District Court for the District of Hawaii, the Hawaii Supreme Court held in St. Paul Fire & Marine Ins. Co. v. Liberty Mutual Ins. Co., SCCQ-14-0000727,...more

Georgia Courts Reject Two Common Setup Tactics

In a recent decision, the Eleventh Circuit sought and then applied the Georgia Supreme Court’s answers to two certified questions about policyholder settlements made without the insurer’s consent. Piedmont Office Realty...more

Kentucky Federal Court Sustains Hospital Insurer’s Denial of Claim Due to Untimely Notice, Declines to Require Insurer Show...

The U.S. District Court for the Eastern District of Kentucky recently held that an insurer properly denied coverage to a hospital because the hospital gave untimely notice of the claim. In Ashland Hospital Corporation v. RLI...more

Mind the Gap! Avoiding Unexpected Gaps in Insurance Programs

No one insurance policy covers all liability risks. Risk managers expect to purchase several types or layers of insurance to cover different types of insurance liabilities, to provide sufficient limits for a catastrophe loss,...more

United States District Court In Texas Holds AXIS Excess D&O Policy Cannot Be Triggered Where Insured Settled With Primary Insurer...

In a May 12, 2014 ruling, one week before the scheduled start of trial, United States Magistrate Judge K. Nicole Mitchell granted Summary Judgment to AXIS Insurance Company finding that the insured's settlement with its...more

Excess Insurer v. Primary Insurer: Supreme Court of Missouri Recognizes Right of Excess Insurer to Recover from Primary Insurer...

Scottsdale Ins. Co. v. Addison Ins. Co., et al. 2014 WL 6958157 (Mo. banc. December 9, 2014) - In a matter of first impression, the Supreme Court of Missouri, en banc, affirmed a decision by the Missouri Court of...more

Supreme Court of Missouri Reverses Grant of Summary Judgment for Primary Insurer on Insured’s and Excess Insurer’s Bad Faith...

Scottsdale Ins. Co. v. Addison Ins. Co., No. SC 93792 (Mo. Dec. 9, 2014). Supreme Court of Missouri rules in an en banc decision that neither an excess judgment nor a failure to pay policy limits are essential elements...more

Bad Faith Sentinel - January 2015

In This Issue: - District of South Carolina: No Support For Award of Punitive Damages Where Insured Failed To Prove Recklessness by Insurer - Supreme Court of Missouri Reverses Grant of Summary Judgment for...more

Are Your Company’s Directors and Officers Suitably Insured for Negligence and Civil Fines and Penalties?

Corporate directors and officers have a long list of things that can keep them up at night. Personal liability for civil fines and penalties arising out of negligence should not be one of them. Companies often must or will...more

Et tu, Buddy?: When Excess Insurers Sue for Bad Faith

Insurers don’t, as a rule, like bad faith suits. But life can play funny tricks—as when a judgment against an insured breaches a layer of excess coverage, because the primary carrier failed to settle within its policy...more

Insurance Recovery Law -- November 2014 #2

South Carolina Court Holds That Absent Substantial Prejudice, Late Notice Does Not Bar Insurer’s Coverage Obligations - Why it matters: A federal court in South Carolina ruled that absent a showing by an insurer...more

Well, That Seemed Exhausting: When Is an Excess Insurer Obligated to Post an Appellate Bond?

“You say to-may-toe; I say to-mah-toe,” or so the saying goes. According to the Eastern District of Pennsylvania in Charter Oak Insurance Company v. Maglio Fresh Food, No. 12-3967 (E.D. Penn. Sept. 9, 2014), the same can be...more

Missouri Court Allows Insured to Pursue Breach of Fiduciary Duty Claim Against Excess Insurer

In its recent decision in SSM Health Care Corp. v. Repwest Ins. Co., 2014 U.S. Dist. LEXIS 158164 (E.D. Mo. Nov. 7, 2014), the United States District Court for the Eastern District of Missouri had occasion to consider whether...more

Pro-Policyholder Opinion Drives Home Importance of Excess Policy Language When Settling with an Underlying Insurer for Less Than...

A reoccurring issue with excess insurance is whether a policyholder can trigger excess coverage by agreeing to a below-limits settlement with an underlying insurer, and filling in the gap between the settlement amount and the...more

Get Exhausted! The Tenth Circuit Schools an Excess Insurer on How to Preserve Subrogation Claims in a Settlement

Claims against insured businesses sometimes implicate multiple liability policies issued by several different carriers, and it is sometimes prudent for some of those carriers to settle the underlying action, even if others...more

Excess Insurer Contract Language Amounts to Free Pass

Excess insurance is essential to businesses of medium or larger size because it provides catastrophe coverage at much lesser rates per dollar of coverage than primary insurance. There are two main reasons for this: The excess...more

Pennsylvania Court Affirms Liquidator’s Decision That A Claim Arising From A Reinsurance Policy Is Entitled To A Lower Payment...

A Pennsylvania appellate court has affirmed the liquidator’s determination that a group excess insurance policy issued by Reliance is a reinsurance policy and thereby entitled to a low level of priority of payment from the...more

Insurance Recovery Law - September 2014 #2

D&Os Entitled to Unfettered Access to Bankrupt Company’s Policy Proceeds to Fund Defense Costs: Why it matters - In an important victory for directors and officers of a bankrupt company, a New York court...more

Excess Insurance Triggered Despite Policyholder’s Settlement with Primary Insurers for Less than Policy Limits

When faced with a catastrophic loss triggering multiple layers of coverage and recalcitrant insurers at the primary layer, a policyholder has strong incentives to settle with the first-layer carriers for less than the full...more

Excess Policy Attaches Notwithstanding Settlement with Underlying Insurers for Less Than Full Limits

Recently, a Texas Court of Appeals handed down a pro-policyholder opinion in the case of Plantation Pipe Line Co. v. Highlands Insurance Co., in Receivership, Case No. 11-12-00029-CV (Tex. App. Aug. 29, 2014). The issue...more

What Triggers Excess Coverage In An Environmental Case: Not Necessarily the Payment of the Full Underlying Policy Limits

More and more excess insurers are taking the position that a policyholder which settles with primary or low level excess insurers for less than the full amount of the policy limits has waived its right to obtain coverage from...more

7th Circuit Holds Excess Insurer Has No Duty to Indemnify Punitive Damages

In its recent decision in Fox v. Am. Alternative Ins. Corp., 2014 U.S. App. LEXIS 12799 (7th. Cir. July 7, 2014), the United States Court of Appeals for the Seventh Circuit, applying Illinois law, had occasion to consider...more

New York Department Of Financial Services (“NYDFS”) Adopts Emergency Regulation Regarding Excess Line Placements Governing...

The Emergency Regulation, effective April 21, 2014, conforms 11 NYCRR 27 to the requirements of the Non-Admitted and Reinsurance Reform Act of 2010 (“NRRA”). The amendments make the following changes to Insurance Regulation...more

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