Hoffman Construction Co. v. Fred S. James & Co.

I disagree with the majority’s conclusion that defendant is not required to pay for a loss that plaintiffs are unable to recover from their insolvent underlying insurer. Defendant agreed to pay losses in excess of the “amount recoverable” under the underlying insurance. “Recoverable” means “that which is able to be, or capable of being, recovered.” Pacific Atlantic S.S. Co. v. United States, 120 F Supp 753, 755 (D Or 1954); Webster’s Third New International Dictionary 1898 (unabridged 1971). Under the plain, ordinary meaning of that phrase, defendant is required to pay the excess over the…