Courts likely to take strict approach to excess insurance policy wordings

In brief - Excess policy not triggered in Hancock v Fieldhouse

In the case Hancock Family Memorial Foundation Ltd v Fieldhouse (No. 5) [2013] WASC 121 (Hancock), the Supreme Court of WA held that based on the specific policy wording, an excess policy is not triggered in circumstances where the underlying insurer has not paid out, admitted liability or had a court determine the underlying insurer's liability under its policy.

Hancock consistent with recent decision in USA

The position taken in Hancock is consistent with that of the United States Court of Appeals for the Second Circuit, as discussed in Ali v Federal Insurance Company, 2013 WL 2396046 ( 2d Cir. June 4, 2013) (Ali) where the Court held that excess policies could not be triggered because insolvent insurers sitting below would not - and obviously could not - pay.