The Virginia Supreme Court declined to give priority to what is called a “super-escape” other insurance clause over a more generic “excess” other insurance clause. Nationwide Mut. Fire Ins. Co. v. Erie Ins. Exch., 798 S.E.2d 170 (Va. 2017).
The Virginia Supreme Court analyzed two competing other insurance clauses. One stated that “if ‘other insurance’ applies to claims covered by this policy, the insurance under this policy is excess and we will not make any payments until the ‘other insurance’ has been exhausted by payment of claims.” The term “other insurance” was defined as “any type of self-insurance or other mechanism by which an ‘insured’ arranges for funding of legal labilities.” The other clause stated that “its insurance is excess over, and shall not contribute with any of the other insurance, whether primary, excess, contingent or any other basis.”
The Court declined to parse the competing clauses to determine which clause is more specific. It concluded that while the second clause contained what it called “super-escape phraseology” more specific than the terminology in the first clause, the first clause did refer to “any of the other insurance” or “any type of self-insurance.” Thus, the Court focused on the use of “any” in reference to other types of insurance. The Court found the two other insurance clauses to be mutually repugnant and apportioned coverage between the two policies on a pro rata basis.