Rhone-Poulenc Incorporated v. International Insurance Company and International Surplus Lines Insurance Company

POSNER, Chief Judge.

The appeal from the dismissal of this diversity breach of contract suit presents an interesting and, we suspect, important question, nominally of Illinois law, concerning the characterization of an insurance policy as “primary” or “excess.” A policy is primary if the insured has a right to collect the proceeds in the event of a loss regardless of what other insurance he may have. It is excess if his right is contingent on his having exhausted the limits of his other insurance. There are also hybrid primary/excess policies, which the insurance company calls “excess by…