Nationwide Mut. Fire Ins. Co. v. Erie Ins. Exch.

Nationwide's argument suffers from a fatal conceptual flaw. Erie's alleged breach of its duty to equitably contribute to the $2.9 million settlement occurred nearly three years before Erie had any legal duty to contribute.1 At the time that Nationwide settled the tort claim, Erie had no coverage liability for the first $3 million. A circuit court had so held. At that time, Erie legally occupied the role of excess insurer, and Nationwide was the primary insurer. Absent an agreement to the contrary, a primary insurer cannot assert equitable contribution against an excess insurer2 because the…