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Factors in the Classification of 'True Excess,' 'Excess By Coincidence,' and Primary Policies
In assessing whether a particular insurance policy is excess or primary, courts consider a number of factors including: the premium paid for the policy (ie, the amount of consideration); the specific language of the policy (ie, the presence of an “other insurance” clause); the form of the policy (ie, whether the policy specifically identifies itself as “excess”); and whether the policy specifically identifies the primary policies. These factors determine whether the policy will be deemed “true excess,” “excess by coincidence,” or primary. This determination is necessarily fact intensive and involves not only an examination of the subject policy but also an examination of any other policy to which the subject policy is purportedly excess and the interaction of such policies.
Courts consistently define the nature of excess insurance as coverage that only applies once the underlying coverage is exhausted. As the Seventh Circuit stated: “A policy is primary if the insured has a right to collect the proceeds in the event of a loss regardless of what other insurance he may have. It is excess if his right is contingent on his having exhausted the limits of his other insurance.” Rhone-Poulenc, Inc. v. International Ins. Co., 71 F.3d 1299, 1301 (7th Cir. 1996) (Posner, J.). A “true excess” policy explicitly requires the existence of a primary policy as a condition of coverage. Progressive Ins. Co. v. Universal Cas. Co., 347 Ill. App. 3d 10, 19 (2004). In contrast, a policy with an “excess other insurance” clause does not expressly declare itself excess as to all other insurance policies. Instead, it is seen as an attempt to render primary insurance as excess over any other collectible insurance. Id. at 20. Thus, whether the policy is excess or not depends on its interaction with other policies covering the loss. Rhone-Poulenc, 71 F.3d at 1304.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.