Berkley Reg. Ins. Co. v. Philadelphia Indem. Ins. Co., No. 11-50595 (5th Cir. 2012)
Annotate this CaseThe underlying personal injury case stemmed from an injury suffered by Dentist on the premises of Condominium. Condominium had general liability coverage issued by Primary Insurer and excess coverage through Excess Carrier. Dentist sued Condominium which submitted the cause to Primary Insurer to provide a defense. The jury awarded Dentist $1,654,663. Condominium demanded that Excess Carrier pay the amount in excess of the primary coverage amount. Excess Carrier contested coverage for late notice, contending it did not have notice of the personal injury action until the day of the verdict. Sister Company to Primary Insurer paid the remaining amount under its supersedeas bond after Excess Carrier denied responsibility for that amount. Sister Company allowed Primary Insurer to bring this lawsuit against Excess Carrier in Sister Company's name. At issue on appeal was whether the failure to give Excess Carrier notice prior to the jury verdict forfeited coverage it would otherwise owe. The district court granted summary judgment in favor of Sister Company. The Fifth Circuit Court of Appeals reversed and remanded, holding that, under the facts of this case, the failure to give notice to Excess Carrier until after an adverse jury verdict constituted evidence of prejudice that forfeited coverage.
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