Appellant excess insurer sought review of a judgment from the Superior Court of Los Angeles County

Procedural Posture

Appellant excess insurer sought review of a judgment from the Superior Court of Los Angeles County (California), which granted summary adjudication to respondent insured in apportioning liability under comprehensive general liability policies for continuing injuries from asbestos exposure.

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The insured purchased primary insurance policies from four different insurers over four decades and also purchased excess insurance policies. The insured selected a primary policy that had a per occurrence limit and no annual liability limit to respond initially to all claims in a specific year. The excess insurer issued a first-level excess policy to the insured for that year. The excess policy stated that the insured's retained limit was equal to the underlying limits of liability plus any other underlying insurance collectible by the insured. Applying a horizontal exhaustion rule, the court interpreted the policy's reference to "any other underlying insurance" to mean that the excess insurer's liability attached only after all collectible primary insurance had been exhausted. The primary insurance purchased for the specific policy year, which did not permit stacking of its annual per occurrence limits, was exhausted after the primary insurer contributed its policy limit per asbestos bodily injury claim. Absent evidence of whether other primary insurers' policies had been exhausted, however, it could not be determined whether the excess insurer's obligation had attached.

Outcome

The court reversed the grant of summary adjudication and the entry of judgment for the insured.