In responding to a certified question, the New Hampshire Supreme Court held that the excess carrier's duty to defend is not triggered until the primary's insurer's policy is exhausted. Old Republic Ins. Co. v. Stratford Ins Co., 2016 N.H. LEXIS 8 (N.H. Jan. 26, 2016). Old Republic and Stratford each provided coverage for a a tractor-trailer that collided with a vehicle. The owner of the tractor, Ryder Truck Rentals, was insured by Old Republic. DAM Express leased the tractor from Ryder. Pursuant to the lease, Ryder was responsible for obtaining a policy from the tractor. DAM, however, also purchased a separate policy from Stratford. When the collision occurred, the driver of the tractor-trailer was employed by DAM. The passengers of the vehicle were injured and sued the driver, DAM and Ryder. Old Republic defended all defendants, but asked Stratford to help pay the defense costs. Stratford refused, contending its coverage for DAM and the driver was excess to Old Republic's policy. Old Republic sued Stratford, seeking a declaratory judgment that Stratford had an obligation, as a co-primary insurer, to provide coverage and pay a portion of the defense costs. The federal district court ruled that Old Republic provided primary coverage and Stratford provided excess coverage. Under New Hampshire law, however, the duty of an insurer to defense was the same whether its potential liability was as a primary or as an excess carrier. Therefore, even though it considered itself an excess carrier, Stratford was obligated to share equally in the defense costs in the underlying action. Both parties appealed. The First Circuit certified the question to the New Hampshire Supreme Court, asking when an excess carrier's duty to defend was triggered. The New Hampshire court adopted the majority rule: where an insured was covered by both a primary policy and an excess policy, the excess carrier was not obligated to participate in the defense until the primary policy limits were exhausted. The court's prior statement on the excess carrier's duty to defend was dicta and did not control the issue now before the court.
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