Old Republic Insurance Company v. Stratford Insurance Company

Summary

The Supreme Court of New Hampshire answered certified questions from the First Circuit concerning when an excess insurer's duty to defend is triggered. The court held that an excess insurer has no duty to defend until the primary insurer's coverage limits are exhausted. It distinguished its prior decision in Universal Underwriters, explaining that the earlier case involved co-primary insurers with mutually repugnant excess clauses.

Holdings

1. Under New Hampshire law, an excess insurer's duty to defend a claim is triggered only when the primary insurer's coverage has been exhausted.
2. Universal Underwriters does not require a true excess insurer to share defense costs with a primary insurer before exhaustion of the primary policy because Universal Underwriters concerned two co-primary insurers.

Questions Presented

1. Under New Hampshire law, when is an excess insurer's duty to defend triggered?
2. Does an excess insurer's duty to defend arise only after the primary insurer's coverage is exhausted?
3. If the excess insurer's duty to defend is not limited to exhaustion of the primary policy, what rule governs allocation and timing of defense costs?

Disposition

remanded