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Judicial Scrutiny of 'Other Insurance' Clauses

By Spiro K. Bantis and Daniel W. London

Liability insurance policies typically contain an “other insurance” clause to describe an insurer's obligation when more than one insurance policy provides coverage to the same insured for the same loss. “Other insurance” clauses are unique within the liability policy because, unlike the rest of the policy, these clauses apply to the insurer's interaction with other insurers and not to the insurer's interaction with the insured.

On this much courts consistently agree: A primary policy with an “other insurance” clause dictates the sharing of liability vis-'-vis an overlapping primary policy with no “other insurance” clause. Typically, when identical clauses present an intractable conflict, each insurer is responsible for its proportional share of liability (usually measured in relation to its respective policy limits). However, when overlapping primary liability policies contain different “other insurance” clauses, approaches vary by jurisdiction and degrees of intellectual rigor.

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