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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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April 6, 2020

An insured was sued for causing continuous property damage over many years. For the years 1961 to 1985, the insured had both primary insurance and multiple layers of excess insurance.

Having exhausted all of the primary policies, the insured argued it was entitled to “stack” coverage and obtain benefits under any excess policy once it exhausted a directly underlying excess policy for the same policy period. The insurers disagreed and argued that the insured had to exhaust all of its lower layer excess coverage across all relevant policy periods before accessing any of its higher layer coverage

The Supreme Court agreed with the insured’s position, which it described as “vertical exhaustion.” The Court held the insured is “entitled to access otherwise available coverage under any excess policy once it has exhausted directly underlying excess policies for the same policy period.” However, the court also held that an insurer who provides coverage may “seek reimbursement from other insurers that would have been liable to provide coverage under excess policies issued for any period in which the injury occurred.”