"Millions" for Defense From CGL Primary Carrier, Not One Darn Penny From Director's and Officer's Carrier, the way that their Other Insurance Clauses are written.
The New York Court of Appeals just held that where both a CGL carrier and a D&O carrier insured the same Property Owners Association, the question of who pays for defense expenses incurred for defending the Insured depends on the language of the two carriers' competing Other Insurance Clauses. Download Fieldston Property Owners Assn v. Hermitage Insurance Co. (N.Y., Opinion Filed Feb. 24, 2011) PUBLIC ACCESS, STATED UNCORRECTED, SUBJECT TO REVISION,, also published as 2011 WL 649812 (N.Y. Feb. 24, 2011)(authorized password required to access Westlaw; page numbers not available at the time of this post).
The Commercial General Liability policy was written with a Primary Other Insurance Clause. The D&O policy was written with an Excess Other Insurance Clause. In a dispute between the two carriers over who pays for their common Insured's defense expenses for underlying suits, the New York Court of Appeals held that the Primary CGL pays all of the defense expenses of the underlying suits on behalf of that Insured, and the D&O Carrier pays none.
The way that the Other Insurance Clauses are written in the Insurance Policies determines the outcome in this situation, every time.
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