August 01, 2012 Articles

When Excess Policies May Be Obligated to Defend or Reimburse Defense Costs

A number of courts have rejected insurers' version of history and found that asbestos insurance was not reasonably available, beginning in the mid-1980s, to the insureds involved in ongoing litigation

by Pamela J. Tillman *

It probably goes without saying that there are a myriad of differences between the scope of coverage offered by a primary and an excess policy. After all, the higher premiums associated with primary policies usually bring with them the added duty to defend, lower attachment points, and the increased likelihood of coverage being triggered by a loss or claim against the insured. However, it would be naive to think that an excess policy could never come with defense obligations. This article explores some of the unique circumstances under which an excess or umbrella carrier can find itself saddled with a duty to defend or to reimburse its insured for defense costs associated with an underlying claim.

The general rule still remains true: An excess policy generally does not provide a duty to defend.[1] Some significant exceptions, however, do exist. While some of these exceptions may not be the "majority" rule among all jurisdictions, practitioners should be aware of how and when these issues can arise. Given what appears to be an ever-present choice of law conundrum arising in coverage disputes, one can nevertheless find oneself contending with one of these minority rules.

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