The management company submitted a claim to the directors and officers liability carrier and filed notice with its own professional liability carrier. Both carriers' “other insurance” provisions are clear that if any other coverage is available that their policy will act as excess. The directors and officers liability limit is $1,000,000, and the management company's professional liability limit is $2,000,000.

The directors and officers liability carrier has taken the position that, as both “other insurance” provisions are excess clauses, there would be contribution on a pro-rata basis, based on limits available for the management company.
Question 1: Does the fact that there is an indemnification and specific provision in the management agreement that the condominium's policy will be primary for the property management supersede the other insurance provisions of these policies?
Question 2: What other arguments can be made, if any, that the directors and officers liability policy for the condominium should apply as primary in this scenario? 

Florida Subscriber

Question 1: The provision in the management agreement is a contractual liability issue that would best be handled by a general liability policy. Generally, D&O policies do not address issues of contractual liability (although all policies are different). So, if there is no accommodation or provision for contractual liability in your client's policy, the other insurance provision would stand.

Question 2: We do not see any arguments that can be made. It seems that the contractual requirement that D&O coverage be primary was not reflected in the D&O policy obtained.