In order for an insurer to claim secondary insurance coverage, the underlying policy must provide coverage.

Before the court were cross-motions for summary judgment involving a dispute over insurance coverage for a condominium unit that was damaged when a toilet inside it broke, allowing water to run throughout the unit. The plaintiffs owned a condominium unit at the complex and were insured with defendant USAA. The policy covered both the real and personal property in their condominium unit. The Condominium Association also had an insurance policy with defendant PIIC. Both insurers denied coverage for the plaintiffs' claims. USAA argued that its policy with the plaintiffs was secondary to the policy with PIIC. PIIC, on the other hand, argued that the policy with the Condominium Association did not cover the plaintiffs' claims. The court granted PIIC's motion for summary judgment, determining that the exclusionary and limiting language established that there was no applicable coverage. As a result, USAA's policy could not be in "excess over the amount recoverable under" PIIC's policy. The court granted the plaintiffs' motion for summary judgment.

Case Law Alerts - 2nd Quarter 2013