NAT. UNION FIRE INS. v. AM. MOTORISTS INS., No. S97G1850.

• Court: Supreme Court of Georgia
• Writing for the Court: FLETCHER, Presiding Justice.
• Citation: 504 S.E.2d 673,269 Ga. 768
• Decision Date: 21 September 1998
• Docket Number: No. S97G1850.
• Parties: NATIONAL UNION FIRE INSURANCE COMPANY v. AMERICAN MOTORISTS INSURANCE COMPANY.

504 S.E.2d 673
269 Ga. 768

NATIONAL UNION FIRE INSURANCE COMPANY
v.
AMERICAN MOTORISTS INSURANCE COMPANY

No. S97G1850.

Supreme Court of Georgia.

September 21, 1998.

Glenn Scott Bass, Benjamin David Ladner, Goldner, Sommers, Scrudder & Bass, Atlanta, for National Union Fire Insurance Company.

504 S.E.2d 674

E. Wycliffe Orr, Gainesville, Patricia St. Peter, Zelle & Larson, Minneapolis, MN, for American Motorists Insurance Company

FLETCHER, Presiding Justice.

We granted certiorari in this case to consider whether an excess insurer is required to reserve its rights against a primary insurer before asserting later that additional primary insurance covers the claim. Because the excess insurer in this case was not seeking to deny coverage under its policy and had no contractual obligation to the primary insurer, we hold that there is no requirement that the excess insurer notify the primary insurer that it was "reserving its rights." Therefore, we reverse the court of appeals.¹

National Union Fire Insurance Company issued an excess liability policy to its insured First Gibraltar. American Motorists Insurance Company provided primary coverage to First Gibraltar under two policies, policy 246 and policy 249. Policy 246 was a "loss-sensitive" policy, which required the insured to make additional premium payments based upon claims experience. When two plaintiffs brought separate premises liability suits against First Gibraltar, American Motorists provided a defense in both actions under policy 249, but did not apply policy 246 to the claims. After the first suit resulted in a 2.5 million judgment, which was in excess of the limits of policy 249, American Motorists tendered the limits to National Union. National Union accepted the tender, assumed the defense of [269 Ga. 769] both suits, and settled them for approximately 3.4 million.

National Union subsequently sued American Motorists contending, in part, that policy 246 provided additional coverage for the claims. The trial court granted National Union's motion for partial summary judgment on the issue of whether policy 246 covered the claims. The court of appeals affirmed that holding,² but nevertheless held that National Union had waived or was estopped to recover because it failed to adequately reserve its rights to deny coverage. The court of appeals' ruling thus barred National Union's claims.

1. American Motorists characterizes National Union's allegations as a denial of coverage and contends that the claim must fail because National Union failed to reserve its right to deny coverage.

(a) As an initial matter, the labeling of National Union's claim as a denial of coverage is a mischaracterization. Courts have long recognized, either as subrogation or indemnity, the right of an insurance company, which pays a claim, to seek reimbursement from another insurer that should have satisfied the claim.³ Some courts have also permitted direct actions between insurers for reimbursement.⁴

Regardless of the label attached to the claim, the fact that the insurer is attempting to recoup its outlay does not mean that the insurer is denying coverage. The parties agree that National Union assumed the defense and settled both lawsuits by paying approximately 3.4 million under its policy. National Union did not rely on any provision or exclusion in its policy to refuse American Motorists' tender. Because National Union was not seeking to deny coverage, there was no requirement that it reserve its rights to deny coverage.

(b) Even if National Union were denying coverage, the failure to reserve the right to do so would not preclude its claim against American Motorists. A "reservation of rights" typically refers to an insurer's

504 S.E.2d 675

notice to its insured that it will provide a defense, but may litigate and ultimately deny coverage if the insured is found liable.⁵ In this case, National Union's contract was with First Gibraltar. Thus, National's "right to deny coverage" flows only to First Gibraltar. Any reservation of that right would have to be directed to First [269 Ga. 770] Gibraltar and American Motorists may not complain about National Union's failure to provide such notice.⁶

(c) The substance of the court of appeals' holding imposes a requirement that an excess insurer notify a primary insurer of its intention to seek reimbursement before accepting a tender of the defense of the underlying action. Since there is no contractual relationship between National Union and American...