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. 

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“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.

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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).

 

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.