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Factors in the Classification of 'True Excess,' 'Excess By Coincidence,' and Primary Policies
In assessing whether a particular insurance policy is excess or primary, courts consider a number of factors including: the premium paid for the policy (ie, the amount of consideration); the specific language of the policy (ie, the presence of an “other insurance” clause); the form of the policy (ie, whether the policy specifically identifies itself as “excess”); and whether the policy specifically identifies the primary policies. These factors determine whether the policy will be deemed “true excess,” “excess by coincidence,” or primary. This determination is necessarily fact intensive and involves not only an examination of the subject policy but also an examination of any other policy to which the subject policy is purportedly excess and the interaction of such policies.
Courts consistently define the nature of excess insurance as coverage that only applies once the underlying coverage is exhausted. As the Seventh Circuit stated: “A policy is primary if the insured has a right to collect the proceeds in the event of a loss regardless of what other insurance he may have. It is excess if his right is contingent on his having exhausted the limits of his other insurance.” Rhone-Poulenc, Inc. v. International Ins. Co., 71 F.3d 1299, 1301 (7th Cir. 1996) (Posner, J.). A “true excess” policy explicitly requires the existence of a primary policy as a condition of coverage. Progressive Ins. Co. v. Universal Cas. Co., 347 Ill. App. 3d 10, 19 (2004). In contrast, a policy with an “excess other insurance” clause does not expressly declare itself excess as to all other insurance policies. Instead, it is seen as an attempt to render primary insurance as excess over any other collectible insurance. Id. at 20. Thus, whether the policy is excess or not depends on its interaction with other policies covering the loss. Rhone-Poulenc, 71 F.3d at 1304.
Rhone-Poulenc: Overview of Factors and Methodology
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