WAIVER AND ESTOPPEL DOES NOT CREATE INSURANCE COVERAGE THAT DOESN’T EXIST

Posted on November 27, 2025November 27, 2025 by David Adelstein

Waiver and estoppel do not create insurance coverage where coverage does not exist. In other words, raising that an insurer waived or should be estopped from arguing a coverage exclusion does not create insurance coverage because coverage never existed. (Notably, this is different from a forfeiture argument which is when there is coverage, but the insured didn’t comply with a policy condition to obtain the benefit of such coverage such as timely notice, etc.)

This is demonstrated in Universal Property & Casualty Ins. Co. v. Jean, 50 Fla.L.Weekly D2488h (Fla. 4^th DCA 2025), involving a property insurance coverage dispute. In this case, the plaintiff’s property insurance contained a residency requirement. The policy required the insured (plaintiff) to reside in the property. It was undisputed that the insured did not reside in the property. The plaintiff argued that the insurer waived the right to raise the residency requirement because the insurer took the plaintiff’s premiums knowing the insured did not reside at the property.

While the jury agreed with the plaintiff’s waiver argument, the appellate court did not because waiver cannot support coverage that doesn’t exist, as explained in this noteworthy analysis:

Coverage provisions define the scope of insurance coverage. Lack of coverage may exist where “the insuring clause does not by its express terms apply to the kind of claim being made, or it may exist simply because the policy elsewhere expressly excludes the coverage.”

Because coverage provisions define the existence of insurance coverage, coverage provisions cannot be waived. Waiver cannot create coverage where none exists.

Here, the policy insured only the dwelling where Homeowner resided. Because Homeowner undisputedly did not live at the subject property where the loss occurred, the loss was not covered. The residence-premises clause defined the scope of coverage, and the clause was not a forfeiture condition subject to waiver.

The record here establishes, without contradiction, that Homeowner did not reside at the subject property on the loss date, and the jury also made this finding of fact. Therefore, the trial court should have entered a directed verdict for Insurer.

***

The trial court here treated the denial of coverage as something that can be waived similar to a policy precondition for payment, or post-loss defense such as, for example, the requirement of timely notice to the insurer of the claim. In fact, coverage is distinct from such matters. A residence-premises clause is a coverage provision not subject to forfeiture or waiver. If coverage does not exist under the policy from the outset, then the insurer’s later actions or inactions does nothing to create coverage. Courts have even held that payments by insurers made in error do not constitute waivers. Therefore, the fact that an insurer may continue to mistakenly accept premiums cannot waive a residency requirement integral to the policy’s creation and the existence of coverage.

Jean, supra (internal citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

PROMPTLY NOTIFYING YOUR INSURER OF A CLAIM MATTERS

Posted on November 8, 2025November 8, 2025 by David Adelstein

Does promptly notifying your insurer of a claim matter? A recent case out of the 11^th Circuit Court of Appeals answers this question in the affirmative. MAKE SURE TO PROMPTLY NOTIFY YOUR INSURER OF A POTENTIAL CLAIM.

In L. Squared Industries, Inc. v. Nautilus Ins. Co., 31 Fla.L.Weekly C529a (11^th Cir. 2025), an insured owned gas stations and had a claims-made storage tank liability insurance policy. The policy provided: “You must see to it that we are notified as soon as reasonably possible, but in any event, not more than seven (7) days after the insured first became aware of, or should have become aware of a pollution condition which may result in a claim or any action or proceeding to impose an obligation on the insured for cleanup costs . . . .”

In May 2017, Florida’s Department of Environmental Protection (FDEP) inspected the insured’s gas station finding that components of an underground storage tank system were damaged and needed to be replaced. FDEP explained that testing needed to be performed to determine if a discharge occurred. Testing was performed that indicated a discharge occurred and that the gas station owner needed to have additional testing to determine the extent of contamination. Then, in June 2018, the gas station owner hired an environmental consulting firm to conduct certain assessments in connection with work at the gas station and the consulting firm discovered groundwater contamination around August 2018. The gas station owner, however, did not notify it liability insurer until April 2019 and the insurer denied the claim with a basis of denial being untimely notice. In a coverage lawsuit, the trial court granted summary judgment in favor of the insurer finding that the gas station owner was not entitled to coverage because it failed to notify its insurer within 7 days of becoming aware of the pollution condition as required by the insurance policy.

On appeal, the 11^th Circuit Court of Appeals affirmed the trial court with this important analysis demonstrating that it always makes sense to PROMPTLY notify your insurer of a potential claim:

We recognize that there are no Florida cases directly addressing whether the notice-prejudice rule applies in a case where the insured provides notice during the coverage period of a claims-made policy but fails to provide that notice within a specified period of time. Where there is an absence of state-law precedent in a diversity case like this one, we “presume that [the state] courts would adopt the majority view on a legal issue in the absence of indications to the contrary.” Given the authorities cited above, we must presume that Florida courts would adopt and apply the notice-prejudice rule in a case like this one and therefore apply the notice-prejudice rule here.

Although Florida courts have not addressed whether they would adopt the notice-prejudice rule in this context, they have addressed the more general issue of what presumptions apply when an insured breaches a notice provision. In Florida, “[i]f the insured breaches the notice provision [of the policy], prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.” This rule applies “to claims under a [personal injury protection] policy just as well as to claims under other policies.” Under Macias, then, [the insured gas station owner] had the burden at summary judgment to present sufficient evidence to create an issue of fact as to whether [its insurer] was prejudiced by its breach of the seven-day notice provision. Yet, as the district court explained, [the insured] did not present “specific arguments to rebut the presumption of prejudice” until it filed its motion for reconsideration of the summary judgment order. And even then, it did so “without citing to the record.”

On this record, [the insured] did not do enough to rebut the presumption of prejudice provided by Florida law and create an issue of fact for the jury. First, a losing party cannot use a motion for reconsideration to “raise [an] argument or present evidence that could have been raised prior to the entry of judgment.” Second, the district court was under no obligation to search the record for evidence which might create an issue of fact as to prejudice. And [the insured’s]citations to the record in its appellate brief come too late.

In sum, the district court correctly granted summary judgment to [the insurer] based on [the insured’s] breach of the seven-day notice provision because [the insured] did not rebut the presumption of prejudice to [the insurer] under Florida law. Therefore, we affirm the entry of summary judgment in favor of [the insurer] based on [the insured’s] breach of the seven-day notice provision.

Squared Industries, supra, (internal citations omitted).

APPLICATION OF ORDINANCE AND LAW COVERAGE IN PROPERTY INSURANCE POLICY AND TWENTY-FIVE PERCENT RULE

Posted on October 25, 2025October 25, 2025 by David Adelstein

A recent case involved a homeowner’s all-risk property insurance policy with ordinance and law coverage. This ordinance and law coverage required the carrier “to cover costs that the [insureds] incur as a result of any ordinance that requires them to replace ‘the portion of the undamaged part of a covered building or other structure necessary to complete the remodeling, repair or replacement of that part of the covered building or other structure damaged by a Peril Insured Against.” Weston v. Universal Property & Casualty Insurance Co., 50 Fla.L.Weekly D2307a (Fla. 2d DCA 2025). The property insurance policy required the insurer to pay the actual cash value of the loss, minus any deductible, and “any remaining amounts necessary to perform such repairs as work is performed and expenses are incurred.” Id.

Here, the insureds sustained roof damage from a storm. The insureds had an expert that opined, with a reasonable degree of certainty, that the entire roof needed to be replaced because “[t]here was damage to more than twenty-five percent of the roof, and the Florida Building Code provided that if more than twenty-five percent of the roof was damaged, then the entire roof should be replaced.” Weston, supra. The insureds also had an expert that testified to an estimate- the replacement cost of the damage as well as the actual cash value of that damage.

The trial court, however, granted directed verdict in favor of the insurer for three reasons. The court ruled that the insureds did not prove that the carrier breached the insurance contract because it did not prove the carrier failed to pay the actual cash value of the damage. Next, the court ruled that once the carrier paid the actual cash value, minus the deductible, it was not required to make further payments under the additional work was performed. And lastly, the court ruled that the insurer made payment to the insureds based on its field adjuster’s estimate, which was the only estimate of the actual cash value. The appellate court found that all such reasons were erroneous.

First, the insureds did present evidence through expert testimony that the full roof needed to be replaced under the law and ordinance coverage and the twenty-five percent rule under the Florida Building Code. Thus, the trial court erred in rejecting the insureds’ actual cash value estimate that factored in the full roof replacement. The dispute between the insureds and insurer as to damage, the percentage of roof that was damaged to trigger the twenty-five percent rule, and repair costs were factual and should have gone to a jury.

Second, the insurer rejected the application of the twenty-five percent rule to the damages claimed by the insured. Thus, the insurer did not pay the actual cash value of the full roof replacement and damage. “According to [the insurer], if an insured does not make repairs to their home after an insurer has determined that the repairs are unnecessary, then the insured is precluded from asking a court to determine whether the insurer improperly refused to cover the loss. This approach places insureds in the untenable position of paying for what they contend should be covered by the insurer and then hoping that the insurer will have a change of heart, despite repeated denials, and reimburse them for their loss.” Weston, supra.

Third, the insureds did not have a burden to provide the insurer with an actual cash value estimate before a lawsuit was filed. This is notable here where the insurer took the position before suit that its payment to the insurer fulfilled its obligation. Here, the insureds did submit estimates of roof repairs to the insurer; however, the insurer disagreed with them because the estimates were for full roof replacement, and the insurer did not agree with the full roof replacement.

INSURANCE BROKER CAN BE LIABLE FOR OMISSION OF COVERAGE

Posted on August 2, 2025August 2, 2025 by David Adelstein

Claims against an insurance agent / broker can be actionable in negligence. Such a claim can arise with omitted insurance. “The party seeking to establish that improperly omitted insurance coverage was available must only show that ‘the requested coverage was generally available in the insurance industry when appellee obtained coverage for appellant.’” Leavitt Recreation & Hospitality Ins., Inc. v. Florida Caverns R.V. Resort, LLC, 50 Fla. L. Weekly D1641a (Fla. 1^st DCA 2025) (citation omitted).

In a recent case, a company purchased an RV park. The company contacted an insurance brokerage firm to secure commercial property insurance. The company utilized the brokerage firm for another RV park and obtained a policy that covered power stations (or hook-up towers which are important to the operation of RV parks). The company provided information to the agent with a site map that included the hook-ups. The commercial insurance policy procured by the broker did NOT cover power stations. Thus, when a hurricane hit, significant damage was not covered to the power stations, and the insurer denied coverage. The cost to replace or fix power stations was over $1 Million.

The company sued the insurance broker for the damages sustained to the power stations. The company “alleged it had requested comprehensive coverage that would have encompassed the power stations, and that it was customary in the industry to include such coverage because of the inherent necessity of the power stations to operating an RV park. The complaint further alleged that, if the policy excluded power-station coverage, [the insurance brokerage firm], as broker had negligently failed to include that coverage, and that [the company] would have received insurance proceed covering the damage to the power stations but for [the broker’s] failures.” Leavitt Recreation & Hospitality Ins., Inc., supra.

The company’s owner testified in deposition that “he requested whatever insurance coverage would be adequate to protect against damage and loss to the business premises” and denied he would have rejected additional coverage simply due to a higher premium. The owner testified that he was not told coverage for the power stations was excluded. Leavitt Recreation & Hospitality Ins., Inc., supra

The insurance agent testified in deposition that the brokerage firm specializes in RV parks and could and did offer coverage for power stations. He testified the company elected not to obtain the coverage with power stations, although the company’s owner disagreed with this. A disputed fact.

The brokerage firm moved for summary judgment arguing that the company was required prior to trial to produce an actual insurance policy issued before the hurricane hit that covered the power station damage to prove such coverage was even available. While the trial court agreed, the appellate court vehemently disagreed. The appellate court noted the broker’s agent testified the disputed coverage was available at the time, thus, the brokerage firm would be hard-pressed to argue such coverage was not available.

We find no authority that would have required [the company] to produce, at the summary judgment stage, an executed, pre-[hurricane] policy providing power-station coverage and establishing a base for calculation of damages. The deposition testimony before the court established that the coverage was available, that both [the company’s owner and the broker’s] agent knew it was available, that [the owner] claimed he wanted it, and that the agent claimed [the owner] said he did not want it. The parties’ contract — the policy — does not on its face include the coverage. Producing an actual policy covering power stations was unnecessary. Further, even an agent’s failure to tell [the owner] the coverage was missing is actionable, and no policy could be required to prove that negative.

Leavitt Recreation & Hospitality Ins., Inc., supra.

QUICK NOTE: LIABILITY INSURER’S DUTY TO DEFEND AND DUTY TO INDEMNIFY

Posted on July 14, 2025July 14, 2025 by David Adelstein

A liability insurer has two duties: a duty to defend and a duty to indemnify. A recent insurance coverage dispute summarizes these two duties, which are critical for parties to understand and appreciate in the context of insurance coverage claims:

An insurance company’s duty to defend is distinct from and broader than its duty to indemnify. “The allegations of the complaint govern the duty of the insurer to defend.” “The question of duty to defend is answered based upon a review of the underlying pleadings filed against the insured as well as the insurance policy itself.” If the allegations fairly bring the case within the terms of the policy, the duty to defend the underlying lawsuit arises. However, if the allegations do not fall within the insuring agreement or fall within an exclusion, the duty to defend never arises.

The duty to indemnify is determined by looking beyond the underlying complaint. It is governed by the facts of the case. Courts analyze the terms of the policy in light of those facts.

If the duty to defend does not exist, then the duty to indemnify likewise does not exist.

Catalina West Homeowners Association, Inc. v. First Community Ins. Co., 50 Fla.L.Weekly D1318a (Fla. 3d DCA 2025) (internal citations omitted).

RIGHTFULLY RECOVERING UNDER A COBLENTZ AGREEMENT

Posted on June 14, 2025June 14, 2025 by David Adelstein

A recent case out of the Middle District of Florida, The Peninsula at St. John’s Center Condominium Association, Inc. v. Amerisure Ins. Co., 2025 WL 1547631 (M.D.Fla. 2025) discusses what a party must do to RIGHTFULLY recover under a Coblentz agreement under Florida law:

“In Florida, a party seeking to recover under a Coblentz agreement must prove: (1) coverage; (2) a wrongful refusal to defend; and (3) that the settlement was objectively reasonable and made in good faith. “Florida law clearly states that liability of an insurer depends upon whether the insured’s claim is within the coverage of the policy. This remains true even when the insurer has unjustifiably failed to defend its insured in the underlying action.” “A determination of coverage, therefore, is a condition precedent to any recovery against an insurer.”

The party seeking recovery has the burden “to allocate the settlement amount between covered and uncovered claims.” “[A]n insurer faced with a Coblentz action has the right to litigate its contractual duty to indemnify on the actual facts of the underlying litigation just as it would in an action against its insured.” Once the party seeking to recover under a Coblentz agreement has established coverage and allocated damages amounts between covered and uncovered claims, the burden shifts to the defendant who must then prove that either the Coblentz agreement was unreasonable or was negotiated in bad faith.

Id. At *5 (internal citations omitted).

In this case, an insurer for a contractor denied coverage, and thus, the duty to defend, in a large, complex construction defect coverage lawsuit with multiple parties. The association-claimant entered into a Coblentz agreement with the contractor and then the association, through an assignment of the general contractor’s rights under the contractor’s commercial general liability policy, sued the contractor’s insurer. The Middle District held that the insurer was not liable to the association under the Coblentz framework. This means the association was collecting nothing from the contractor’s insurer.

First, it was undisputed that the operative complaint in the construction defect lawsuit was a third amendment complaint. Yet, this amended complaint was never presented to the insurer for a coverage position. It should have, regardless of whether the insurer denied its obligations under a previous version of the complaint. Thus, there was never a wrongful denial to defend to trigger the Coblentz framework because the insurer was not given the operative complaint to determine whether it had a duty to defend.

Next, the Middle District found that the insurer was not liable under the Coblentz framework (even if the insurer had been given the operative complaint) because the association-claimant “has not satisfied its burden to allocate between covered and uncovered claims.” The Peninsula at St. John’s Condominium Ass’n, supra, at *11. The claimant has the burden to allocate damages between covered and uncovered claims and the inability to allocate would destroy the Coblentz framework. Id. at *9. (“[T]he Coblentz Agreement is unenforceable because it does not properly allocate between covered and uncovered claims.”).

Moreover, as if the other two bases were not enough, the Middle District further maintained the Coblentz Agreement was not reasonable. In other words, it included unreasonable amounts. “What Coblentz does not do is authorize the insured to indiscriminately load the carrier’s wagon with bricks of damage that no reasonable person would expect as consequences of the underlying claim.” The Peninsula at St. John’s Condominium Ass’n, supra, at *11. The Middle District found the damages amount subject to the Coblentz agreement was not reasonable as it loaded up damages and did not account for other party’s liability or amounts in which it settled with other parties.

There are times considering a Coblentz agreement is 100% worth it. If considering a Coblentz agreement, make sure to draft it correctly to maximize the best arguments you can in pursuing coverage. Do it right!

QUICK NOTE: BURDEN OF PROVING AND DEFENDING ALL RISK PROPERTY INSURANCE CLAIMS

Posted on May 12, 2025May 12, 2025 by David Adelstein

If you are pursuing an all-risk first-party property insurance claim on behalf of an insured, or defending such a claim on behalf of an insurer, a recent case includes a short snippet explaining the corresponding burdens of proof:

To make a claim under an all-risk policy, the insured must establish that her home suffered a covered loss while the policy was in effect. Once established, “the burden shifts to the insurer to prove that the cause of the loss was excluded from coverage under the policy’s terms.” And if an insurer relies on an exclusion to deny coverage, the insurer “has the burden of demonstrating that the allegations of the complaint are cast solely and entirely within the policy exclusion and are subject to no other reasonable interpretation.”The burden then shifts once more to the insured to prove an exception to the exclusion contained in the insurance policy.

Spartan Services Corp. v. People’s Trust Ins. Co., 50 Fla.L.Weekly D1038a (Fla. 3d DCA 2025).

Remember, if you are an insured, you need to prove the loss occurred while the policy was in force. This shifts the burden to the insurer to prove the loss was excluded under the policy. Then, the burden shifts back to the insured to prove an exception to the exclusion, or that the exclusion doesn’t apply.

KEEP AN EYE OUT ON WHAT YOUR INSURANCE POLICY AND CONTRACT SAYS

Posted on January 25, 2025January 25, 2025 by David Adelstein

There is a very good reason the contract requires the party providing a service (e.g., subcontractor) to name the paying party (e.g., general contractor) as an additional insured under its liability policies (e.g., CGL policy) on a primary and non-contributory basis.

There is also a very good reason why you, as an insured, should read the contracts you sign with the party providing a service for you.

In other words, keep an eye out on what your insurance policy says and what your contract says! This is an ABSOLUTE!!

If you want to know the good reasons, look no further to the recent case of Colony Insurance Co. v. Titan Restoration Construction, Inc., 2025 WL 45160 (Fla. 4^th DCA 2025). In this case, a general contractor’s CGL policy contained an endorsement that stated there would be no coverage UNLESS the general and subcontractor executed an agreement containing, “A requirement for the [subcontractor] to name the insured [general contractor] as an additional insured under their Commercial General Liability policy on a primary and non-contributory basis in favor of the insured [general contractor].” Colony Insurance, supra. The general contractor hired a roofing subcontractor. There was no requirement for the roofing subcontractor to name the general contractor as an additional insured on a primary and noncontributory basis. Also, the proposal the general contractor signed contained a disclaimer from the roofing subcontractor that the subcontractor “will not be held responsible for water damage to the exterior or the interior of the premises.”

Naturally, the roof installed by the roofing subcontractor leaked causing water damage. The general contractor submitted a claim to its CGL insurer. Its CGL insurer denied coverage because the subcontractor had NOT added the general contractor as an additional insured on a primary and noncontributory basis to its CGL policy. In other words, per the endorsement, there was no coverage because the general contractor did not comply by requiring its subcontractor to name it as an additional insured on a primary and noncontributory basis.

A coverage dispute between the general contractor and its CGL insurer ensued. On appeal, there are key points decided by the appellate court:

If an endorsement is in conflict with the body of an insurance policy, the endorsement will control. Colony Insurance, supra(citation omitted). This is important because the general contractor argued the endorsement conflicted with the body of the policy and, thus, the conflict should be construed against the insurer. However, this was shot down because the endorsement controls.

The general contractor’s CGL policy required the general contractor to have been added as an additional insured under its roofing subcontractor’s policy on a primary and noncontributory basis. The general contractor failed to comply with this endorsement and, thus, there was no coverage.

Separately, the proposal which was part of the contract between the general contractor and roofing subcontractor included a disclaimer such that the roofing subcontractor was disclaimed from liability for water damage. Regardless, the general contractor contractually agreed that the subcontractor was not responsible for water damage. Ouch!

KNOW YOUR BURDEN OF PROOF IN AN INSURANCE COVERAGE DISPUTE DEALING WITH AN ALL RISK POLICY

Posted on January 12, 2025January 12, 2025 by David Adelstein

Understanding your burden of proof is vital. The burden of proof goes to what a party NEEDS to prove to satisfy or prove the claims or defenses asserted. It’s need-to-know when litigating and trying a case (whether in court or arbitration).

The insurance coverage dispute of Valer v. Citizens Property Insurance Corp., 50 Fla.L.Weekly D126a (Fla. 3d DCA 2025), discusses an insured and insurer’s burden of proof in an insurance coverage dispute with an all risk property insurance policy, which is a property insurance policy that covers all losses except those losses that are excluded in the policy.

The insured’s initial burden of proof is to prove that the property suffered a loss while the property insurance policy was in effect. See Valer, supra. Once the insured satisfies this burden, the burden of proof then shifts to the insurer to prove that the claimed loss falls under a policy exclusion in the property insurance policy. Id.

In Valer, the trial court applied the wrong burden of proof incorrectly believing the insured needed to disprove an exclusion. The trial court was wrong. An insured does not have an initial burden of proof to disprove an exclusion. That burden falls on the insurer.

FINGER POINTING BETWEEN LIABILITY INSURERS AND “OTHER INSURANCE” PROVISION

Posted on November 10, 2024November 10, 2024 by David Adelstein

It’s not uncommon when liability insurers point the finger at each other relating to which insurer should be deemed primary, which insurer should be excess, or whether a pro rata contribution between insurers applies. Typically, this needs to be decided by the “other insurance” provision in the insurance policy that deals with overlapping insurance as well as case law in the governing jurisdiction.

This was the case in Gemini Insurance Co. v. Zurich American Insurance Co., 30 Fla. L. Weekly Fed. (11^th Cir. 2024). Both insurers provided liability coverage to a trucking company that got into an accident that resulted in the death of a person. Both carriers–Gemini and Zurich–disputed the amount each carrier owed to a settlement that Gemini funded.

In Florida, “where more than one insurer’s policy provides coverage for a loss,” as the parties agree is the case here, “it is appropriate to review the insurance contracts to see if the documents address the ‘ranking’ or contribution of other insurers.” That sort of “ranking” is usually accomplished through an “other insurance” clause. Florida law recognizes “three principal kinds” of “other insurance” clauses: (1) pro rata; (2) excess; and (3) escape or no liability. A pro rata clause limits an insurance company’s contribution to a proportion of the total loss based on the policy’s limit. An excess clause provides coverage only after other insurance limits are exhausted. And an escape or no liability clause provides that there is no coverage if there is another policy that covers.

***

“In Florida, where two insurance policies contain excess insurance clauses the clauses are deemed mutually repugnant and both insurers become primary and share the loss on a pro rata basis in accordance with their policy limits.”

Gemini Ins. Co., supra (internal citations omitted).

However, whether two policies are purely “excess” policies is not clear cut.

Zurich argued that the policies should contribute pro rata because its policy and the Gemini policy were both excess and, thus, deemed repugnant. However, the 11^th Circuit found this unconvincing based on language in Zurich’s “other insurance” provision because the Gemini policy’s “other insurance” provision provided it was a “pure excess” policy and Zurich’s “other insurance” provision contained pro rata language:

And in such a scenario, “courts give effect to the pure excess provision.” Id. (emphasis added). Helpfully for our purposes, State Farm’s “other insurance” clause in Ferris described itself — much like Zurich’s here — as applying “excess coverage.” Notwithstanding the label, Ferris deemed it a pro rata clause because of its “we will pay the proportion” language. That is language that Zurich’s policy also contains.

***

In sum, we have one Florida case, Ferris, that tells us that an “other insurance” clause containing the phrase “we will pay the proportion of damages payable as excess” means that the clause was pro rata, even though it also characterized itself as an excess clause. And we have Beane, which, in comparing two excess “other insurance” clauses, teaches that the phrase “[we] shall not contribute with such other insurance” carries with it special significance.

Turning back to the “other insurance” clauses at issue here, Zurich’s contains the “we will pay the proportion” phrase from Ferris and Gemini’s contains the “we shall not contribute” phrase from Beane. Considered together, we believe that Ferris and Beane counsel that Gemini’s policy is excess to Zurich’s.

Gemini Ins. Co., supra (internal citations omitted).