The Travelers Indemnity Company of America v. Accredited Surety and Casualty…

Background

This is a declaratory-judgment action involving insurance coverage for 5541-1274 Fifth Avenue in an underlying state-court action. Three cross motions for summary judgment were pending. Travelers sought a declaration that Accredited Surety and Casualty Company (ASCC) and Great American Insurance Company (GAIC) each had a duty to defend Fifth and that their coverage obligations were primary, with Travelers’ coverage obligations applying only in excess.

Travelers argued that ASCC’s and GAIC’s coverage obligations were primary unless one of five exceptions applied. The opinion states that neither ASCC nor GAIC addressed this argument in their briefs.

Order

The court directed the parties to submit supplemental briefing on whether any obligation of ASCC or GAIC to provide additional-insured coverage for Fifth was primary, and whether Travelers’ obligation should be treated as excess. The briefing was to address the interpretation of the “other insurance” provisions in the relevant policies.

GAIC and ASCC each had to file a supplemental brief by July 1, 2024. Travelers’ responsive brief was due July 9, 2024. Each supplemental brief could not exceed six substantive pages. The court stated that a defendant insurer that failed to respond within the required timeline would be considered to have waived its argument on this issue.

Disposition

Judge Laura Taylor Swain ordered supplemental briefing. The order did not grant or deny the pending summary-judgment motions and did not decide whether ASCC or GAIC had a duty to defend, whether their obligations were primary, or whether Travelers’ obligations were excess.