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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.
Rhone-Poulenc: Overview of Factors and Methodology
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.