Petzl America, Inc. manufactured a harness for use by people climbing wall-climbing systems. They sold such a harness to Sport Rock International, Inc., which incorporated it into a wall climbing system that they manufactured. The system was then installed in a gym. Joseph Anaya fell while climbing the wall because an employee at the gym had attached the safety line to the wrong place on the harness. Anaya filed suit.

American Casualty covered Petzl. The American Casualty policy named Sport Rock as an additional insured and contained an “other insurance” clause that said that the coverage was primary and that if there were other coverage, “we will share with all that other insurance by…” equal shares or in proportion to policy limits depending on what the other policy permits.

Evanston Insurance Company covered Sport Rock. The Evanston policy said that “When you are added to a manufacturer’s or distributor’s policy as an additional insured….the coverage afforded under this Coverage Part will be excess ….”

American Casualty disputed its obligation to bear the entire defense, pointing out that some of the claims against Sport Rock arose from its own alleged negligence, separate and apart from the product defect allegations surrounding the manufacture of the harness. Thus, reasoned, American Casualty, Evanston should bear part of the cost of defense.

The court ruled that the clause in the Evanston policy declaring itself excess to the American Casualty policy was to be respected. The court held that the Evanston policy “is rendered excess by reason of the competing “other insurance” clauses” and “will not become obligated to defend the insured until the other carrier’s coverage has been exhausted.”

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03794.htm