above [containing the same language as to another first tier carrier].
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. . . Unless specifically stated to the contrary in Items 2 and 3 . . . the coverage provided . . . applies only with respect to each accident or occurrence for limits in excess of the amount provided for same in the underlying insurance and is not to apply as primary insurance in the event of exhaustion of aggregate limits (if any) in the underlying insurance.
The CONDITIONS paragraph quoted recognizes that item 3 takes precedence over its more general provisions if explicit. Item 3 in turn refers to item 2 which sets forth that Utica is responsible up to overall limits set forth for claims "excess of" those covered by other carriers described in item 2. Item 3 if read as complete, which it appears on its face to be, has the ordinary meaning that Utica will be responsible should the lower-tier carriers' coverage be exhausted by their terms, including through payment up to an overall policy maximum imposed by the policies of such other carriers.
Item 3 could be read as insufficiently specific to overcome the implication of the CONDITIONS paragraph that Utica's policy will never serve as primary insurance, but such a construction would give little weight to the more general concept that specifically negotiated individualized terms take precedence over standard language in case of doubt.
No parol evidence which might shed light on the intent of the parties has been suggested by any party. No precedents or other materials dealing with language of the type utilized here has been provided.
A possible source of guidance on the merits of the issue of policy construction raised by Utica might be the premium paid to Utica for the policy at issue as compared with that paid for policies of Utica or others involving similar risks where exhaustion of an aggregate policy limit by a primary carrier would without the potentially restrictive paragraph quoted above.
Such comparisons might shed light on "reasonable expectations" of the parties. Colson Corp. v. INA, 874 F. Supp. 65, 1994 U.S. Dist. LEXIS 17354 *8 (SDNY 92 Civ. 5814 [MGC) Dec. 6, 1994). While the parties have made submissions on the subject, the papers contain assumptions which cannot be resolved on the present record.
Consequently, summary judgment cannot be awarded to Utica on the assuitiption that its construction of its policy is the correct one. Squibb has also submitted evidence that some DES recoveries exceed the amounts which might trigger Utica's policy under its own interpretation of its policy. See Anderson, "DES Jury Verdicts Affirmed on Appeal," NYLJ Jan. 19, 1995 at 1.
While not independently dispositive, it is significant in evaluating Utica's motion for summary judgment that it waited until December 1994 to raise an issue based upon the face of its 1970 policy, at issue in this 1982 case, and in particular to wait to present its current contentions until after conclusion of motion practice relating to the same issues on two prior occasions during 1994. See ER Squibb & Sons v. Accident & Cas Co, 853 F. Supp. 98, 101-103 (SDNY 1994).
Dated: White Plains, New York
Feb 9, 1995
/s/ John E. Sprizzo, USDJ for
VINCENT L. BRODERICK, U.S.D.J.
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