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Judicial Scrutiny of 'Other Insurance' Clauses
Liability insurance policies typically contain an “other insurance” clause to describe an insurer's obligation when more than one insurance policy provides coverage to the same insured for the same loss. “Other insurance” clauses are unique within the liability policy because, unlike the rest of the policy, these clauses apply to the insurer's interaction with other insurers and not to the insurer's interaction with the insured.
On this much courts consistently agree: A primary policy with an “other insurance” clause dictates the sharing of liability vis-'-vis an overlapping primary policy with no “other insurance” clause. Typically, when identical clauses present an intractable conflict, each insurer is responsible for its proportional share of liability (usually measured in relation to its respective policy limits). However, when overlapping primary liability policies contain different “other insurance” clauses, approaches vary by jurisdiction and degrees of intellectual rigor.
In this article, we contrast the so-called minority approach to differing “other insurance” clauses with the approach generally described as the majority rule. We discuss a stubborn persistence toward the selective use of the minority rule in jurisdictions that have not adopted the minority approach in its entirety.
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