Estate of Louis Penn v. Amalgamated Gen. Agencies

In Estate of Louis Penn v. Amalgamated Gen. Agencies, 148 N.J. Super. 419, 423, 372 A.2d 1124 (App.Div.1977), the Court held that the principles enunciated in Rova Farms also apply between primary and excess insurer on the basis of the general rule that an excess insurer is subrogated to the insured's rights against the primary insurer. The Court quoted Peter v. Travelers Ins. Co., 375 F. Supp. 1347, 1350-51 (D.C.Cal.1974), which held: Under the doctrine of equitable subrogation, the duty owed an excess insurer is identical to that owed to the insured. The excess will not be able to force the primary into accepting any settlement which his duty to the insured would not require accepting. St. Paul-Mercury Indemnity Co. v. Martin, supra, 190 F.2d 455, at 457 10th Cir.1951. In considering whether it will settle a claim, the primary insurer may consider its own interests, but it must equally consider the interests of the insured, which become the interests of the excess insurer by subrogation. While the interests of the primary insurer are, for the most part, unaffected by the existence of excess coverage, the interests of the excess carrier are very much affected by the actions of the primary. If the primary carrier undertakes the representation of the insured, then it has the sole right to negotiate settlements. If the primary carrier is relieved of its duty to accept reasonable offers by the existence of excess insurance, it would put an additional financial liability on the excess carrier which would be reflected in increased premiums. It would also have the effect of reducing the incentive of a primary insurer to settle when the settlement offer is near or over its policy limits. This is contrary to the interests of the public and the insured in obtaining prompt and just settlement of claims. Estate of Louis Penn, supra, 148 N.J. Super. at 423-24, 372 A.2d 1124.