The District of Minnesota recently held that an excess insurer, who has the opportunity to participate in the defense of an underlying claim, is barred from speculating to the allocation of the jury award to make it fit within a policy exclusion.
In RSUI Indem. Co. v. New Horizon Kids Quest, Inc., Civ. No. 16-28 (D. Minn. 2017), a daycare center was sued for negligent supervision when a three-year-old left at the facility was assaulted by a nine-year-old also at the facility. The parties stipulated to this version of events, but there was also some evidence that the assault may have been sexual in nature. New Horizon was insured by Travelers at the primary level and RSUI at the excess level.
After the jury returned a general damages award, RSUI was not permitted to try to retroactively parse the award to apply a sexual abuse exclusion to defeat coverage.
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Aug 10, 2017
William S. Bennett