Carter-Wallace Inc. v. Admiral Ins. Co

In Carter-Wallace Inc. v. Admiral Ins. Co., 154 N.J. 312, 712 A.2d 1116 (1998), the Court addressed how excess insurance should be considered when allocating responsibility under a continuous trigger of liability over many years. Initially, the Court rejected both the insured and the insurer's proposed allocation methods. The Court noted that the insurer's method of horizontal exhaustion subordinated its coverage responsibility to all primary and first-level excess policies in effect during the entire trigger period, and was based on its policy language that required the exhaustion of underlying limits of coverage before its second-level excess policy attached. Carter-Wallace, supra, 154 N.J. at 323, 712 A.2d 1116. The Court noted the similarity between the insurer's exhaustion provision and the "other insurance" clauses that were found not to apply in a continuous trigger context. Id. at 324-25, 712 A.2d 1116. The Court expressly found that it was "unable to find the answer to the allocation language in the policy." Ibid. Similarly, the Court rejected the insured's approach of treating the loss sustained during the entire period as if it occurred in only one year before looking to the excess coverage limits. Ibid. Instead, in Carter-Wallace, the Court adopted the approach of Judge Brotman in Chemical Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 978 F. Supp. 589 (D.N.J.1997), rev'd on other grounds, 177 F.3d 210 (3rd Cir.1999). Id. at 325, 712 A.2d 1116. The Court noted that, under similar circumstances, Judge Brotman "adopted a method that vertically allocated each policy in effect for that year, beginning with the primary policy and proceeding upward through each succeeding excess layer." Id. at 326, 712 A.2d 1116. The Court gave the following example to demonstrate the fair allocation of losses among carriers to the extent of the risk assumed by each: Assume that primary coverage for one year was $ 100,000, first-level insurance totaled $ 200,000 and second-level excess coverage was $ 450,000. If the loss allocated to that specific year was $ 325,000, the primary insurer would pay $ 100,000, the first-level excess policy would be responsible for $ 200,000 and the second-level excess policy would pay $ 25,000. Id. at 326-27, 712 A.2d 1116. The Court found this approach promoted efficiency by spreading the cost, was simple, respected the difference between primary and excess insurance while not permitting excess insurers to avoid coverage in long-term continuous-trigger cases, and would introduce "a degree of certainty and predictability" in a complex field. Ibid. In particular, the Court expressed "that that solution is consistent with the contract language," as the second-level excess policy "will not be pierced unless and until the primary and first-level excess policies in effect for a given year have been expended." Id. at 327, 712 A.2d 1116.