Nabisco, Inc. v. Transport Indemnity Co.

In this insurance coverage dispute, the superior court found a Transport Indemnity Company (Transport) policy to be excess and hence no duty by Transport to defend or indemnify Nabisco Company (Nabisco) in an underlying personal injury action.

The facts are essentially undisputed. James J. Berry, a Trans-Con Lines truck driver, sued Nabisco for personal injuries sustained while loading his employer’s vehicle at a Nabisco facility. On the date of the accident, Nabisco was the named insured under Home Insurance Company’s (Home) umbrella excess policy number HEC-4764111, which provided coverage for losses in excess of $50,000 up to $5 million. Nabisco was responsible for the first $50,000 of any loss. Although it could have purchased coverage for the Home deductible, Nabisco processed all liability claims under the retained limit of $50,000 “in house” because it was more cost-effective. The Nabisco attorney who supervised this department testified the Berry lawsuit was treated as a “self-insured” or “uninsured” claim to which the company’s self-insured retention of $50,000 applied.

Trans-Con was the named insured under two Transport insurance policies. Number 00251…