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At the beginning of November, the Supreme Judicial Court of Massachusetts decided that competing excess insurance policies apply equally to provide excess coverage, even if one policy is a true excess policy and the other is a hybrid policy providing either primary or excess coverage—depending on the policy trigger. The case is Great Divide Ins. Co. v. Lexington Ins. Co., 2017 WL 4969942 (Mass. Nov. 1, 2017).

An employee of EZ Disposal Service, Inc. was driving a garbage truck leased by Capitol Waste Service, Inc. and owned by Atlantic Refuse Leasing Equipment, LLC. That employee struck and killed a bicyclist while driving the garbage truck. The bicyclist’s family brought a wrongful death action against EZ, Capitol Waste, and Atlantic Refuse. Capitol had a primary insurance policy through Commerce Insurance Company with a limit of $1 million and an excess insurance policy through Lexington with a $10 million limit. Great Divide Insurance Company provided EZ with primary insurance for many risks, including accidents involving cars owned by EZ, with a limit of $1 million. The policy included a clause that provided “other insurance” for any covered “auto” you don’t own; the insurance provided by this form is excess over any other collectible insurance. Commerce defended all of the insureds in the underlying tort action. Great Divide went to court seeking a declaration that its policy and Lexington’s policy were both excess policies covering the same loss.

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