Nothing illustrates the distinction between primary and excess policies more clearly than the respective notice provisions of these policies:
The notice provisions found in primary and excess insurance policies are often not the same. Because excess coverage is contingent on exhaustion of the primary insurance policy, “excess insurers generally do not require notification of occurrences until the excess policy is reasonably likely to be implicated.” Lumbermens Mutual Casualty Co. v. RGIS Inventory Specialists, LLC, 682 F.3d 46, 52 n. 4 (2d Cir.2010) (per curiam) (emphasis added) (citation omitted); see also Evanston Ins. Co. v. Stonewall Surplus Lines Ins. Co., 111 F.3d 852, 861 (11th Cir.1997) (“Excess policies [ ] usually require an assured to give notice of claims that appear ‘likely to involve’ the excess.”). Not so for primary insurance policies. Primary insurers generally only require notification of any occurrence or law suit that may (as opposed to one that is reasonably likely to) give rise to a claim covered under the policy.[1]
[1] American Guarantee & Liab. Ins. Co. v. Simon Roofing & Sheet Metal Corp., 2013 WL 961158 *4 (S.D. Fla. March 12, 2013). [Emphasis by the Court.]
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