When There are Two Different Other Insurance Clauses They Eliminate Each Other and Both Insurers Owe Indemnity Equally
Post number 5289
In Great West Casualty Co. v. Nationwide Agribusiness Insurance Co., and Conserv FS, Inc., and Timothy A. Brennan, as Administrator of the Estate of Pat- rick J. Brennan, deceased, Nos. 24-1258, 24-1259, United States Court of Appeals, Seventh Circuit (February 11, 2026) the USCA was required to resolve a dispute that arose when a tractor-trailer operated by Robert D. Fisher (agent of Deerpass Farms Trucking, LLC-II) was involved in a side-impact collision with an SUV driven by Patrick J. Brennan, resulting in Brennan’s death.
Facts
Deerpass Trucking, an interstate motor carrier, leased the tractor from Deerpass Farms Services, LLC, and hauled cargo for Conserv FS, Inc. under a trailer interchange agreement. The tractor was insured by Great West Casualty Company with a $1 million policy limit, while the trailer was insured by Nationwide Agribusiness Insurance Company with a $2 million policy limit. Brennan’s estate filed a wrongful death suit in Illinois state court, naming multiple defendants including Fisher, Deerpass Trucking, Deerpass Services, and Conserv. Great West subsequently sued Nationwide in federal court, seeking declaratory judgment regarding insurance payment priorities.
Law
Both Great West and Nationwide provided commercial liability insurance covering Fisher, Deerpass Trucking, and Conserv. The dispute centered on which insurer’s policy should pay first in response to the wrongful death claim.
The district court concluded that the policies have equal payment priority, interpreting the insurance contracts to determine their respective coverage responsibilities.
Analysis
The court examined the underlying lease and interchange agreements, as well as the terms of both insurance policies. It found that both insurers acknowledged their coverage obligations for the accident. The district court analyzed the policies’ language and concluded there was no basis to distinguish between them regarding payment order. Both policies were deemed to provide coverage to the relevant parties under similar circumstances, and neither contained provisions that mandated one insurer pay before the other.
Discussion
The Seventh Circuit affirmed the district court’s conclusion that Great West and Nationwide share equal priority in payment for claims arising from the accident. The ruling was based on the contractual language and the facts surrounding the accident and insurance arrangements.
This decision clarifies that, absent explicit policy provisions to the contrary, insurers covering related risks may be required to contribute equally when their insureds are implicated in the same incident.
To reach the “excess” coverage determination, the district court found paragraph 5.b of Great West’s “Other Insurance” provision governed because Deerpass Trucking had leased the tractor from Deerpass Farms, a “motor carrier” as defined in the policy.
Nationwide argued that the Interchange Agreement between Deerpass Trucking and Conserv but the district court disagreed. Citing Illinois caselaw, the district court explained that an insured contract requires one party to assume the tort liability of the other, but that Deerpass Trucking had only “agreed to indemnify Conserv for liability arising from Deerpass Trucking’s own actions.” This did not meet the definition of an insured contract.
The court then rejected Great West’s argument that “excess over any collectible insurance” in its policy makes its coverage “excess over” Nationwide’s coverage.
The district court concluded Nationwide and Great West both owe excess insurance coverage and therefore must pay a pro rata share proportionate to their coverage limits.
The Seventh Circuit agreed with Great West’s position.
Great West’s Coverage is Not “Excess Over” Nationwide
Great West claims its policy is “super excess” because the applicable portion of the “Other Insurance” provision, paragraph 5.b(2), specifies that Great West’s coverage is “[e]xcess over any other collectible insurance.”
The rule against superfluous language is not absolute. It is a preference to be employed to the extent possible. The “super excess” language in Great West’s policy is merely an example of redundancy in contract drafting and not a command to recognize a never-before-seen “super excess” tier of insurance coverage.
The Seventh Circuit AFFIRMED the district court’s grant of summary judgment.
ZALMA OPINION
The Seventh Circuit applied the key fact about insurance: They are contracts. The words of the contract, if clear and unambiguous, will be applied by the courts. When a person dies as the result of a collision between a car and a Tractor-Trailer combination, the estate of the deceased wants as much as they can get from the defendant’s insurers. The insurers all have, as a matter of course, “other insurance” clauses and seek to pass the cost of defense and indemnity to other insurers insuring against the same risk of loss. The court read the insurance policies and relevant contracts and agreed with the trial court.
(c) 2026 Barry Zalma & ClaimSchool, Inc.
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Post number 5385
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