Gulezian v. Lincoln Insurance
Gulezian v. Lincoln Insurance
Opinion of the Court
This is the second of two cases we decide today dealing with the question whether excess liability insurance coverage drops down to replace primary coverage if a primary insurer becomes insolvent. See Massachusetts Insurers Insolvency Fund v. Continental Casualty Co., ante 598 (1987).
Lincoln moved for summary judgment, and the plaintiff in turn sought a partial summary judgment declaring Lincoln’s obligation to provide the coverage prayed for in the plaintiff’s complaint. The motion judge allowed Lincoln’s motion. An amended summary judgment was entered declaring that Lincoln was not obliged to defend the plaintiff in the underlying lawsuits; that Lincoln was only obliged to indemnify the plaintiff over and above $500,000, subject to policy limits; and that Lincoln’s refusal to provide primary indemnity and defense coverage was not a violation of G. L. c. 93A. The plaintiff appealed. We granted Lincoln’s application for direct appellate review.
1. The line of contention between Lincoln and the plaintiff is clearly defined. Both parties agree that, if the Lincoln policy provides that it will drop down if the relevant primary insurance is uncollectible, Ambassador’s insolvency will cause the Lincoln coverage to drop down. See Massachusetts Insurers Insolvency Fund v. Continental Casualty Co., supra at 599 n.2, and cases cited. The issue then is whether Lincoln’s excess policy provides that the lower limit of its indemnity coverage will be reduced to offset the consequences of the insolvency of a primary insurer.
The Lincoln umbrella policy is not a model of precise draftsmanship. In the section defining its indemnity coverage, the policy states that it will cover “Ultimate Net Loss” (a term defined as damages for covered losses and certain related litigation expenses) in excess of “the retained limit.” The retained limit is a deductible of $10,000. No mention is made in the coverage section of the consequences of any underlying insurance. That subject comes up for the first time two sections later where the policy states that Lincoln is liable only for the “Ultimate Net Loss” in excess of the greater of (a) the retained limit if no underlying insurance is applicable to the occurrence or (b) “the total of the applicable limits of liability of the Underlying Insurance as stated in the Schedule of Underlying Insurance and the applicable limits of any other Underlying Insurance collectible by the Insured” (emphasis supplied).
The plaintiff relies further on the provision in section III that makes the Lincoln policy excess of the limits of applicable coverage stated in the schedule of underlying insurance and “the applicable limits of any other Underlying Insurance collectible by the Insured” (emphasis supplied).
Earlier in this opinion we indicated that the reference in a portion of the policy to the “applicable limits” of the underlying
The seeming uncertainty whether the policy drops down if the underlying insurance is uncollectible through no fault of the insured is augmented by paragraph nine of the Conditions. “The insurance afforded by this Policy shall be excess insurance over any other valid and collectible insurance available to the Insured whether or not described in the Schedule of Underlying Insurance . . . and applicable to any part of Ultimate Net Loss ...” (emphasis supplied). The implication is that Lincoln’s coverage is excess only of collectible insurance, including the primary insurance listed in the schedule of underlying insurance.
If to this point an eyebrow is not raised to the level which marks a discernible policy ambiguity, the language of paragraph seven of the conditions provides the necessary impetus. That section says that “[t]he company’s liability . . . shall not attach until the amount of the applicable Underlying Limit has been paid by or on behalf of the Insured ...” (emphasis
It seems likely that Lincoln did not contemplate the insolvency of a scheduled underlying insurer in drafting its policy. The phenomenon of the insolvency of an insurer is not, however, so rare as to excuse that omission of attention to detail. The result is that Lincoln issued a policy in which it generated uncertainty as to what should happen on the insolvency of a primary insurer. On traditional analysis (see Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146 [1982]), the ambiguity must be construed against Lincoln.
2. The excess policy is clear that Lincoln is not required to assume the defense of the underlying tort actions. Section II provides, as the plaintiff concedes, that Lincoln need not defend suits if the occurrence is covered by an underlying policy listed in the schedule of underlying insurance. An underlying policy covered the occurrence in this case.
Paragraph 16 of the Conditions says that “if the Underlying Insurance is exhausted by any occurrence,” Lincoln must assume the defense. The Ambassador coverage was not exhausted by any occurrence, as defined in the policy (“an accident,” etc.). Cf. Massachusetts Insurance Insolvency Fund v. Continental Casualty Co., supra at 601 (insolvency can cause coverage to be reduced).
3. The plaintiff did not seek summary judgment concerning its G. L. c. 93A claim. We do not have the factual background for the plaintiff’s G. L. c. 93A claim, and we cannot and should not decide it. An insurance company which in good faith denies a claim of coverage on the basis of a plausible interpretation of its insurance policy is unlikely to have committed a violation of G. L. c. 93A. See Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671, 675-678 (1983).
4. The judgment is vacated. A new partial summary judgment shall be entered declaring that (1) the Lincoln Insurance Company umbrella policy provides indemnity coverage with respect to all losses covered by that policy over and above sums collectible by the plaintiff pursuant to the underlying coverage, and (2) unless the parties now agree otherwise, Lincoln Insurance Company is not obliged to assume the defense of the underlying tort claims against the insured.
So ordered.
We understand that Ambassador was a nonadmitted insurance company in Massachusetts. Consequently, under G. L. c. 175D, § 1 (4) (1984 ed.), Ambassador was not an “insolvent insurer,” and the Massachusetts Insurers Insolvency Fund would not stand in for Ambassador (G. L. c. 175D, § 5 [a] [1984 ed.]), if the Lincoln coverage does not drop down.
Section III in its entirety reads as follows: “UNDERLYING LIMIT — RETAINED LIMIT: The Company shall be liable only for Ultimate Net Loss resulting from any one occurrence in excess of either (a) the total of the applicable limits of liability of the Underlying Insurance as stated in the Schedule of Underlying Insurance and applicable limits of any other Underlying Insurance collectible by the Insured, less the amount, if any, by which any aggregate limit of such insurance has been reduced by payment of loss during the period of this Policy, hereinafter called the Underlying Limit, or (b) if the insurance afforded by such Underlying Insurance is inapplicable to the occurrence, the amount stated in the Declarations as the
Paragraph 14 of the Conditions of the policy states in part: “14. Maintenance of Underlying Insurance: Each Policy described in the Schedule of Underlying Insurance shall be maintained in full effect during the currency of this Policy except for any reduction of the aggregate limits contained therein solely by payment of claims arising out of occurrences taking place during the period of this Policy. Failure of the Named Insured to comply with the foregoing shall not invalidate this Policy but in the event of such failure the Company shall be liable only to the extent that it would have been liable had the Named Insured complied therewith.”
Although words are capitalized, the policy does not define “Underlying Insurance.”
See Poirrier v. Cajun Insulation, Inc., 501 So. 2d 300 (La. Ct. App. 1986) (four-to-one decision) (under policy language stating the excess coverage to be above “an amount equal to the limits of liability indicated beside the underlying insurance listed in Schedule A hereof, plus the applicable limits of any other underlying insurance collectible by the Insured,” excess coverage drops down upon insolvency of primary insurer because all the primary insurance referred to in the clause must be collectible). Cf. Geerdes v. St. Paul Fire & Marine Ins. Co., 128 Mich App. 730, 734 (1983) (construing similar language, where the issue was somewhat different, the court said that the only policies listed in the schedule “that are considered in the computation are those that are collectible by the insured”).
We need not apply the concept of an insured’s objectively reasonable expectations in reading this policy. See Massachusetts Insurers Insolvency Fund v. Contintental Casualty Co., supra at 600 n.4.
Lincoln’s obligation might not become first dollar coverage. If Ambassador’s involvent estate can pay something to its general creditors, any amount available from the insolvent estate will underlie the Lincoln coverage.
Dissenting Opinion
(dissenting). To the extent relevant here, Lincoln’s obligation is set forth in Insuring Agreement III, which says: “UNDERLYING LIMIT — RETAINED LIMIT: The Company shall be liable only for Ultimate Net Loss [damages for covered losses and litigation expenses] resulting from any one occurrence in excess of either (a) the total of the applicable limits of liability of the Underlying Insurance as stated in the Schedule of Underlying Insurance and the applicable limits of any other Underlying Insurance collectible by the Insured, less the amount, if any, by which any aggregate
The word “applicable” in III (a), modifying the words “limits of liability of the Underlying Insurance as stated in the Schedule of Underlying Insurance,” clearly means the limits of liability stated in any underlying policy that (1) covers the occurrence in question, and (2) is listed on the schedule. The court agrees that that language, viewed “in isolation,” has the clear meaning I attribute to it. Ante at 609. Nevertheless, the court concludes that in the last sentence of HI the words “applicable limits of liability” tend to mean “collectible limits of liability,” and that, therefore, those words elsewhere in III are ambiguous and should be construed favorably to the insured as meaning “collectible limits of liability.” Ante at 609-612. In my view, however, the word “applicable” wherever it appears in Insuring Agreement HI, including the last sentence, cannot reasonably be construed to mean “collectible”.
Insurance proceeds, being money, are collectible. The word “insurance,” in a suitable context, may be construed to mean “insurance proceeds,” and therefore be collectible. But, limits of liability cannot be gathered or received as can money. Therefore, according to the usual usage of our language, limits of liability are not collectible. Courts should not conclude that policy language fairly susceptible of interpretation in the usual and ordinary sense has instead been used in an unusual and inappropriate way. Manning v. Fireman’s Fund Am. Ins. Co., 397 Mass. 38, 40 (1986). Barnstable County Mut. Fire Ins. Co. v. Lally, 374 Mass. 602, 605 (1978).
Furthermore, interpreting the words applicable “limits of liability of any Underlying Insurance Policy” as referring to
The court says that the last sentence of Insuring Agreement III tells the insured that “if the primary insurance is not collectible because of his fault, the excess insurance will not drop down.” Ante at 611. The court then concludes that an insured could reasonably infer that if the primary insurance is not collectible through no fault of the insured, such as the primary insurer’s insolvency, the excess insurance will drop down. But, the last sentence of Insuring Agreement in only tells the insured that if the primary insurer is not liable because of the insured’s fault, the excess insurance will not drop down. That message in no way suggests that, if the primary insurance is uncollectible by reason of insolvency, the excess insurance will drop down.
Paragraph 7 of the Conditions, of which Paragraph 9 is but a logical extension, provides that “[t]he company’s liability under this Policy with respect to any occurrence shall not attach until the amount of the applicable Underlying Limit has been paid by. or on behalf of the Insured or the amount of the Retained Limit has been paid by the Insured on account of such occurrence.” The court observes, ante at 612, that, if the word “applicable” in that provision does not mean collectible, “an insured would obtain no benefit from his excess coverage upon the insolvency of his primary insurer if he could not himself provide the funds necessary to pay claims equal to the primary insurer’s deficiency.” Concluding that such a result would be “unconscionable,” the court finds comfort in avoiding it by considering the word “applicable” as ambiguous and then construing it to mean “collectible.”
The court rightly concludes that Lincoln is not required to assume the defense of the underlying tort actions. The message from that is that Lincoln’s coverage is not first dollar coverage. If Lincoln has no obligation to defend, it also appears that it has no right to defend. The court observes that, in light of the position in which the court’s holding puts Lincoln, Lincoln “may prefer to assume control of the defense of the underlying tort claims.” Ante at 613. But what is the source of Lincoln’s right to do so? It appears that the party required to pay the tort judgments will have no right of control over the proceedings from which those judgments may result. The court’s resolution of the indemnity and defense issues presented by this case, therefore, is inconsistent. I would affirm the judgment below.
Reference
- Full Case Name
- Haig P. Gulezian vs. Lincoln Insurance Company
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- 68 cases
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- Published