In Walsh Construction Company v. Zurich American Ins. Co., No. 45A04-1606-PL-1284 (Ind. Ct. App. Mar. 28, 2017) the Court of Appeals of Indiana held: “As a matter of first impression, we hold that a self insured retention endorsement to a commercial general liability insurance policy requires the named insured to satisfy the amount of the endorsement, whether on its own behalf or on behalf of an additional insured, before the additional insured may seek to enforce the policy against the insurer.”
On the point about first impression, the court noted that it was for Indiana, but also commented that none of the foreign authorities cited by the parties was on all fours.
Normally I make a big deal about cases of first impression and discuss them in detail. They are the types of cases that CO is all about. But I just don’t have time here. Lots going on and the publishing deadline for this issue is at hand. So I limit this article (if you can even call it that) to the court’s holding. Sorry. Although, it’s not like you’re paying for this.
I guess the moral of the story is that general contractors must police the policies that they require their subcontractors to obtain. This isn’t the first time that an additional insured obtained a policy that disappointed the general contractor’s expectations.