HDI GLOBAL SPECIALTIES SE INTERNATIONAL INSURANCE COMPANY OF HANOVER SE v. EMCASCO INSURANCE COMPANY (2022)

ORDER

The parties have requested oral argument on the pending summary judgment motions. The briefing permits disposition, however, although I have at least one question of significance that should not come as a surprise during argument. Much if not all of the case-law that imposes a duty to defend on additional insurers (when there is a “remote” chance of possible sole responsibility of a secondary insured) occurs in litigation where an insured is seeking representation. This case is between insurers, where there is less reason to favor one side. It has been noted that “disputes between an insured and an insurer” are distinguishable from those in which “the dispute involves two insurers”. Insurance Company of the State of Pennsylvania v. Hanover Insurance Company, 2014 WL 1515551 *1 (D.Colo.). In a case like ours should a “reasonable possibility” be the test, rather than a remotely possible result? “Barely possible” seems to mean there is a very remote possibility, perhaps 2-3% I should suppose. As between insurers, where no specially forced reading may be appropriate, I would suppose a reasonable possibility (“fair likelihood” or “realistic possibility”) might contemplate something like a 10% chance. How should “possibility” be construed in this case?

Filings on this question should occur by October 24, 2022.^*

Kansas City, Missouri

FOOTNOTES

FOOTNOTE.   Rather than further study and briefing a negotiated disposition of this duty to defend case would of course be satisfactory.

HOWARD F. SACHS UNITED STATES DISTRICT JUDGE