Employers Ins. Co. of Wausau v. Lexington Ins. Co., 2014 U.S. Dist. LEXIS 115747 (C.D. Cal. Aug. 19, 2014)
In Employers, the Central District of California found that a CGL Policy was excess to an automobile policy with regard to an accident involving a cement truck at a construction site, because the language of the "other insurance" provision in the CGL policy specifically stated the policy would be excess to claims arising out of the use of a vehicle.
In this case, a cement truck accident injuring several workers occurred at a construction site. The insured's auto carrier accepted coverage for the accident, but the CGL carrier denied coverage for several reasons. In its motion for summary judgment filed in the resulting coverage litigation, the CGL carrier argued that its policy was excess to the auto policy based on its "other insurance" clause, which stated that the policy provided excess coverage if the loss arose out of the maintenance or use of an "auto," since the automobile policy included only a general "other insurance" provision. The court agreed with this position and granted the CGL carrier's motion. In reaching its decision, the court recognized that California courts typically find that competing "other insurance" provisions cancel each other out and will not be enforced, but concluded that the situation before it did not fall within the general rule given the specificity of the "other insurance" provision in the CGL policy and the general nature of the provision in the automobile policy.
Originally published in California Insurance Law Quarterly - Fall 2014 Newsletter - 12.16.14
