FEBRUARY 2001

PRIMARY AND EXCESS INSURERS:
What is "the deal" between them?

The Court of Appeal of Ontario has told us that the obligations between primary and excess insurers, although not governed by contract, should be subject to and governed by principles of equity and good conscience. [See Broadhurst & Ball et al v. American Home et al (1990) 1 O.R. (3d) 225 (C.A.)]

In the Broadhurst case, there was a single primary policy at risk and a single excess policy issued by Guardian. In its policy, Guardian had obligated itself to assume the defence of any action against the insured and this obligation was not otherwise qualified. A retention clause in the policy limited only the amount to which Guardian was exposed to indemnify its insured but otherwise did not diminish its duty to defend. The trial judge found that the excess carrier had not had an obligation to participate in the defence and the primary insurer bore the entire burden of the defence. The primary limits had not, up until that point, been exhausted. The Appellate Court found that it was manifest to all concerned the potential judgment against the insured would substantially exceed the limits of the underlying policy. Accordingly, it held that, while an excess liability insurer was generally under no duty to participate in the insured's defence until the primary coverage was "exhausted", the excess carrier had an obligation to defend the insured in these circumstances. The Appellant Court was of the view that to hold otherwise would confer a win-fall on the excess carrier by permitting it to have its defence obligation discharged entirely by the primary carrier. It allocated the cost of litigation equally. There was no real discussion about the supposed windfall. In other words, the excess carrier lost the argument it underwrote its excess coverage, as set out clearly in the policy, on the basis that it was not required to defend the insured until the underlying limits were, in fact, "exhausted" i.e. paid out for indemnity.

In the now famous "cement" case, Alie v. Bertrand & Frére Construction Co., [2000] O.J. No. 1360 (Ont. Sup. Ct.), the Court was faced with circumstances where there were a number of excess policies providing indemnity coverage including defence of the insureds over various policy periods. The plaintiffs were homeowners who had started experiencing problems with foundations, which continually deteriorated over a number of years. There were issues of allocation of damages over policy periods. The Court found that the excess policies universally contained wording by which coverage for defence costs was provided once the limits of underlying insurance had been "exhausted".

In considering whether the excess insurers had a duty to defend, the Court followed Broadhurst. It found that where there was potential judgment against the insured that would substantially exceed the amount of the limits of the underlying policy, the primary policy "will be exhausted". Because the excess carrier was plainly at risk, its duty to defend was triggered "upon the reasonable perception that the claim could pierce into its layer". It is suggested that excess carriers underwrite their policies on the basis that they may well have a defence obligation, but only where the primary policy limits are "exhausted" i.e. paid out in full for indemnity thereby extinguishing the primary carrier's duty to defend. To exhaust the underlying limits requires payment of the underlying carrier's limits. It is the underlying carrier that undertakes the conduct of a defence, which includes assessment of policy coverage issues, and decides whether it is to tender its policy limits in order to extinguish its policy obligations including its duty to defend. The premium the excess carrier charges does not contemplate it will conduct its own investigation to make such a decision independently. The deal between these insurers is based on the assumption the underlying carrier won't freely pay out its full policy limits before it has satisfied itself the limits are spent.

In complex cases where property damage has been occurring over a number of years and there is are issues how to allocate this to various policy years and where there are different excess carriers with different policy limits at risk in any of these years, it is usually not clear to an excess carrier whether claims will pierce into its layer. It usually has no "reasonable perception" until the underlying carrier pays its limits out. Although there were a number of excess insurers and the damage occurred over a number of policy years in Alie, the Court there adopted the reasoning in Broadhurst where there were no such facts. It is suggested that Alie did not address the "deal between the insurers". There are virtually no decisions that do.

In Zeig v. Massachusetts Bonding 23 F. 2d 665 (2nd Cir.) 1928, the Court allowed an insured to proceed with an action against its first party excess burglary insurer even though the insured had settled its claim against its primary insurer for less than the full underlying policy limits. The Court interpreted the clause that provided the policy limits "be exhausted in the payment of claims to the full amount of the expressed limits" to require only that the underlying claims be satisfied. It was not necessary that the full amount of the primary insurance be "collected". As long as the insured only claimed from the excess carrier in excess of the underlying policy limits, according to this Court, the defendant excess insurer "had no rational interest whether the insured in fact had collected the full amount of the primary policy or not". In Zeig, there was no issue whether the "theft" was covered under the primary policy. This case, therefore, does not address the situation where there are concerns about policy coverage. In addition, quantum was not in dispute. Quantum had been agreed to by the insured and the carrier and as a fact, exceeded the primary policy limit. There was no mention of any defence obligation, nor any suggestion the excess carrier had some obligation to defend. There was no discussion of the issues that are often at play between primary and excess carriers. For these reasons, it is suggested that Zeig should be limited to the particular facts of that case and is not a precedent for the propositions for which it is often cited. Unfortunately, the Zeig decision has been frequently followed in the USA and it is cited there and in Canada for the proposition that an insured may proceed against an excess carrier after settling with the primary carrier for less than the primary limits as long as the insured self-insures the gap created as a result of the settlement with the primary carrier for less than its limits. The primary never had to tender its limits as proof to the excess carrier of the true risk the insured faced and it never had to conduct a complete investigation and defend the insured for the benefit of the excess carrier either. In circumstances where there are serious issues of liability and quantum, which in turn give rise to issues whether or not insurance coverage is afforded and, if so, whether the claims will exceed policy limits, on what basis can it be said that an excess carrier has underwritten an obligation to defend the insured or to be liable for indemnification? The answer is "where the primary carrier has, in fact, tendered its limits in full".

If the obligations between primary and excess insurers are as set out by the Court in Broadhurst, "subject to and governed by principles of equity in good conscience," it is suggested that excess insurers, in these cases, should not have policy obligations prematurely imposed upon them by the Courts. If a primary insurer forces the excess insurer to cover any part of the primary insurers' exposure-for indemnity or defence-then at the very least, the rate structure for the two types of insurance should be adjusted. Since it is contemplated that the excess insurer will not be directly involved in the investigation and defence of any action, at least initially, it relies on the good faith obligation of the primary carrier to do so thoroughly. The excess carrier has written the excess liability coverage for a premium that is only a fraction of that charged by the underlying carrier. This reflects the good faith obligation by the primary carrier to conduct a proper and complete investigation and defence or to tender its limits in full. That is the only circumstance where it has agreed to do so.

The tendering of full policy limits is the proof of good faith that is the "deal" between the carriers. The excess carrier accepted the risk it may have exposure and will have a defence obligation thereafter even where there may have been little or no defence investigation. If the courts allow the primary carrier to conclude a deal with the insured whereby it neither pays its limits in full nor concludes a defence, the excess carrier has a right to be suspicious it has been prejudiced. It hasn't had the benefits of a full investigation and defence and it hasn't the benefit of the payment of the full underlying limits either. And that was the "deal."

JGN

This newsletter is published to keep our clients and friends informed of new and important legal developments. The articles are not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer. This newsletter may be printed or stored in electronic form for personal use.