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The Duty to Notify an Excess Carrier: Considerations for Defense Counsel
The relationship between a primary and excess insurance carrier within the context of a catastrophic medical malpractice litigation is fraught with possible pitfalls. While the ultimate battles between primary and excess carriers are often resolved during negotiations between their officers and counsel, defense counsel retained by the primary insurance carrier should be mindful of the potential role that an excess carrier may assume leading up to the final disposition of a catastrophic claim. In this context, we address herein factors such as the duties that may exist between primary and excess insurers; the circumstances in which an excess carrier may be required to “drop down”; cases in which an excess insurer may defend or reimburse defense costs incurred by the insured or the primary insurer; and potential notice issues arising between primary and excess insurers.
An Illustration
For discussion purposes, we turn to the case of Birth Center v. The St. Paul Companies, Inc., 567 Pa. 386, 787 A.2nd 376 (PA. 2001). While this litigation did not directly involve an excess insurance carrier, the factual scenario is a near-textbook example of circumstances that would create a duty for either the insured or the primary insurance carrier to place an excess insurer on notice that its policy reserves might be implicated by the underlying litigation.
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