Frankenmuth Mutual Insurance v. Continental Insurance

The questions presented in these cases consolidated on appeal concern the allocation between "primary” insurers of the cost of defending an insured where the operation of "other insurance” clauses renders one insurance policy excess coverage and the other primary coverage, and the liability exceeds the primary policy coverage limits so that both insurers must pay.1

The facts of these cases represent two sides of a single coin. In Frankenmuth Mut Ins Co, Inc v Continental Ins Co, the primary insurer, Continental, wrongly refused to provide a defense for an insured. An excess insurer,…