Excess D&O Insurance Coverage Barred Because Underlying Insurers Didn’t Admit Liability (2024)

If the underlying insurers have paid their limits, you would generally expect that the next-in-line excess insurer would also have to pay its limit as well for losses within its layer. However, in an appellate decision with what is arguably an unexpected twist, an appellate court has held – in reliance on express policy language – that an upper layer excess carrier is relieved of its obligation to pay because the underlying carriers, all of whom paid their full limit, did not admit liability. The Third Circuit’s January 19, 2024, decision, marked “not precedential,” can be found here. A January 21, 2024, LinkedIn post about the decision by Paul Curley of the Kaufman, Borgeest & Ryan law firm can be found here.

Background

In 2003, Pharmacia was sued in a securities class action lawsuit. The case ultimately settled. Pharmacia incurred total defense and indemnity costs of $207 million.

At the relevant time, Pharmacia maintained a $200 million D&O Insurance program consisting of a $25 million primary layer and twelve additional excess layers. The insurers in the first seven layers of insurance paid their full limits of liability. Pharmacia sought payment from the eighth layer excess insurer, showing the eighth layer excess insurer that the primary and excess layers ahead of it had paid their limits. The eighth layer excess insurer declined. Pharmacia sued the insurer, and the parties filed cross-motions for summary judgment.

The district court granted the excess insurer’s summary judgment motion, holding that the “plain language” of the insurer’s policy required the other excess insurers to admit liability as a condition precedent to coverage; that six of the underlying insurers had disclaimed coverage; and therefore, that the condition to coverage had not been satisfied. Pharmacia appeal the ruling.

The January 19, 2024, Opinion

In a brief January 19, 2024, opinion marked “Not Precedential” and written by Justice Patty Shwartz for a unanimous three-judge panel, the Third Circuit affirmed the district court’s ruling, holding that Pharmacia “failed to adduce evidence that satisfies a condition precedent necessary for [the excess insurer’s] insurance policy to attach.”

The excess policy, the appellate court noted, “unambiguously” specifies two conditions precedent to coverage; in order for coverage to attach, the court said, Pharmacia must show both that the insurers ahead of the excess insurer in the tower have (1) “duly admitted liability and” (2) “paid the full amount of their respective liability.” The word “and,” the Court said, “demonstrates that both conditions must be met.”

Here, the Court said, Pharmacia “has failed to show that both conditions” to trigger the excess insurer’s coverage were met. “Regardless,” the court said, “of whether the other insurers in the tower paid their policy limits, the record does not demonstrate that all of those insurers admitted liability.”

Because Pharmacia “failed to establish at least one condition precedent,” the District Court correctly decline to find that the excess insurer owed Pharmacia coverage under its policy.”

Pharmacia tried to argue that the district court had improperly considered the other insurers’ settlement agreements (which, as settlement agreements typically do, contained the standard recital of non-admission of liability) in support of the proposition that the insurers had disclaimed liability. The appellate court rejected this argument, saying, in a footnote, that Pharmacia’s assertion that an insurer’s payment of a policy limit alone constitutes an admission of liability “is speculative as other reasons may cause a carrier to pay its policy limit, such as avoiding litigation.” In addition, the Court said, to “infer that payment of the full policy limit is a concession of liability would render the admission-of-liability condition superfluous.”

Discussion

The admission-of-liability provision in the excess policy at issue operated here as something of a hidden land mine, one that blew up on everyone’s faces after settlement. Because settlement agreements routinely include recitals of non-admission of liability, an excess policy with this kind of provision could potentially sabotage any settlement involving the excess insurance unless the presence of the provision was fully noted and taken into account when settlement agreements were drafted.

This kind of “admission of liability” provision is frankly unusual enough that it doesn’t surprise me that it caught the participants in this situation unawares. It is worth noting that the policies at issue in this coverage dispute were written and put in place some twenty years ago. As Paul Curley observed in the LinkedIn post to which I linked at the top of this post, most, if any, excess D&O insurance policies these days do not require an admission of liability by underlying carriers in order for the excess coverage to be triggered.

Some reading this opinion might take comfort from the fact that the appellate court’s opinion is marked “not precedential.” However, the problem for any policyholder seeking coverage in the future under an excess D&O insurance policy with an “admission of liability” requirement is not going to come from the precedential value of this opinion; the problem is going to come from the policy language itself. The bottom line from this opinion is that we all now have a practice pointer: check your excess policies to make sure they don’t have the “admission of liability” requirement. This case may not have precedential value in the formal sense, but it does show how much of a problem this kind of language can cause.

The opinion doesn’t discuss the issue, but one thing I wonder is what the eighth level excess insurer’s success in arguing non-coverage here does for the excess layers above the eight level. Does this coverage ruling mean that the excess insurers in layers nine, ten, eleven, and twelve are relieved of their obligation to pay, on the grounds that the underlying layer(s) were not exhausted by payment of loss? This is a high profile set of circ*mstances involving lots of players, so I am guessing there are some readers who know what happened with those upper-level excess insurers. It would be great if anyone knowing the answer could (anonymously if that is preferred) supply the answer in a comment to this post, using this site’s comment feature.

By the way, if you are not following Paul Curley on LinkedIn, you should. He often has good stuff in his LinkedIn posts, as this example shows.