The Court can reconcile the “other insurance clauses” of the two policies so that they do not repel each other. Each policy states that the “other insurance” does not apply to insurance policies that are “expressly taken out as a deductible on the policy in question”. The St. Paul policy requires them to pay losses that go beyond any planned insurance or “other insurance,” and “Other insurance is “any insurance that covers damage fully or partially covered by this policy.” This difference allows the Court to reconcile the provisions of “other assurances” without putting them in direct conflict. The result is that Penn`s National Primary Policy and Penn`s National Umbrella Policy apply before St. Paul`s Policy applies. The court also rejected a summary decision on D&O`s “no loss” argument. The insurer asserted that the insurers did not suffer a “loss” because the purchasing company and its carrier funded the defense of the underlying litigation and its settlement, which was defined as “damages, judgments [and] settlements. Insurer D&O argued that summary judgment was appropriate because (1) individual directors did not have to pay out of pocket the underlying settlement or defence costs, and (2) any recovery by individual directors should reasonably be excluded as it would result in an unexpected or double recovery gain for the directors. The court noted that “despite the fact that the policy [D&O] expressly excludes eight points from the contractual definition of `loss`, nowhere is it stated that the `damages, judgments, settlements` must have been originally paid for by the insured” and that “the legal liability of the insured itself triggers coverage.” The court also found that there was no risk of double recovery, as the directors agreed to transfer the proceeds of this hedging dispute to the acquiring company. The U.S. District Court for the District of Connecticut, which enforces Virginia law, dismissed a D&O insurer`s request for summary judgment, finding that two “other insurance provisions” are mutually repugnant.
Macey v. Carolina Cas. Ins. Co., 2012 WL 6125200 (D. Conn. 10 December 2012). The Court also found that the definition of “loss” in directors` and officers` insurance policy does not require insureds to pay an underlying severance benefit as long as the insured is legally liable. “Disgusting.” Merriam-Webster.com Thesaurus, Merriam-Webster, www.merriam-webster.com/thesaurus/repugnant.
Retrieved 15 December 2020. Since the defendant`s policy does not exclude liability if other insurance is available, but rather provides that it is a “surplus” over any other valid policy, it is aptly referred to as a deductible clause. Since the applicant`s directive contains, in principle, equivalent wording, it requires the same conclusion. Since the deductible clauses of the two policies cannot be reconciled, they are “mutually repugnant” and the result is that neither is effective and each insurer shares the initial coverage. Vermont law therefore requires a proportionate contribution from both insurers. Penn`s National Umbrella Insurance Policy and St. Paul`s Policy cover First Industrial for losses incurred as a result of personal injury. And both contain “other insurance” provisions that are intended to make policies beyond any other insurance applicable.
Since the two clauses are excess clauses applicable in the present case, it is for the Court to determine whether it can reconcile those provisions or whether they are mutually exclusive. Middle English, opposite, contradictory, incompatible, from Anglo-French, from Latin repugnant-, repugnans, present participle of repugnare to fight against, from re- + pugnare to fight รข more at pscharft In this case, the other insurance provisions are not identical, they are not mutually repugnant. The “Other Insurance” clause of Beacher policies sets out the limited circumstances in which they will respond on a deductible basis. Therefore, Seaside`s Primary would initially provide coverage, and Seaside`s excess would provide Beacher with roof covering. Beacher`s coverage line wouldn`t respond until Seaside`s $11 million primary and umbrella cover was exhausted, if at all. It was not disputed that both the VMIC Directive and the Cincinnati Directive contained random deductible clauses.
