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Excess or Primary Insurance?
When a doctor obtains insurance from more than one carrier and both policies contain language along these lines ' 'Insurance under this coverage is excess of and payable only after all other valid insurance limits of coverage have been exhausted' ' which will be deemed the primary policy and which the excess policy? Or will they each cancel the other out? The answer will depend on myriad criteria, including the specific language of the policies, the amount the insured paid for coverage and whether one policy identifies the other insurer as the primary insurer.
A policy is primary if the insured has a right to collect the proceeds in the event of a loss regardless of any other insurance he may have. It is excess if his right is contingent on his having exhausted the limits of his primary insurance policy. While a 'true' excess insurance policy is one that specifically requires the insured to have other insurance coverage before it will be held responsible for any part of a claim, many policies are not explicit enough to dispel all questions on the subject; sometimes the circumstances of the claim and the existence of overlapping insurance policies complicate matters. Each case requires its own analysis. In most states, when two insurance policies covering the same risk both contain 'other insurance' clauses that cannot be reconciled, those clauses cancel each other out and the insurers share in liability pro rata. See, eg, State Farm Fire & Cas. Co. v. Holton, 131 Ga.App. 247 (Ga. Ct.App. 1974); Lumberman Mut. Cas. Co. v. Allstate Ins. Co., 435 NYS2d 953 (1980.
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