Firemen's Insurance Company of Washington D.C. v. Hiscox Insurance Company, Inc.

1
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
FIREMEN’S INSURANCE COMPANY OF 	)
WASHINGTON D.C. D/B/A BERKLEY 	)
UNDERWRITERS INSURANCE COMPANY, 	)
)
Plaintiff, 	) 	Civil Action
) 	No. 24-cv-12566-PBS
v. 	)
)
HISCOX INSURANCE COMPANY, INC., 	)
)
Defendant. 	)
)
MEMORANDUM AND ORDER
February 13, 2026
Saris, J.
INTRODUCTION
This insurance coverage dispute involves a leaky construction
project in Quincy, Massachusetts. The project’s general contractor
retained Exterior Designs, Inc. (“Exterior”) to perform siding and
trim work. Exterior, in turn, retained Timothy Carey and at least
ten other subcontractors. Plaintiff Firemen’s Insurance Company of
Washington 	D.C. 	d/b/a 	Berkley 	Underwriters 	Insurance 	Company
(“Firemen’s”) 	and 	Defendant 	Hiscox 	Insurance 	Company 	(“Hiscox”)
insured 	Exterior 	and 	Carey, 	respectively. 	Exterior 	was 	an
additional insured on Hiscox’s coverage of Carey.
In 	2021, 	the 	project’s 	owner 	filed 	a 	lawsuit 	alleging 	that
shoddy construction work caused water leaks in the buildings. Both
Case 1:24-cv-12566-PBS Document 36 Filed 02/13/26 Page 1 of 15

2
Exterior 	and 	Carey 	were 	impleaded 	into 	the 	lawsuit. 	Firemen’s
subsequently 	brought 	this 	action 	against 	Hiscox 	seeking 	a
declaration 	regarding 	the 	two 	insurers’ 	obligations 	to 	defend
Exterior in that underlying lawsuit. Firemen’s chiefly argues that
its 	coverage 	of 	Exterior’s 	defense 	costs 	is 	excess 	to 	Hiscox’s
coverage 	of 	those 	costs 	under 	the 	Firemen’s 	policy’s 	“other
insurance” 	provision 	and, 	thus, 	that 	Hiscox’s 	defense 	obligation
is primary. Hiscox responds that the two insurers’ obligations to
defend 	Exterior 	are 	co-primary. 	In 	the 	event 	the 	Court 	concludes
that Firemen’s and Hiscox owe co-primary duties to defend Exterior,
the 	parties 	dispute 	whether 	they 	should 	split 	those 	costs 	evenly
or on a “time-on-the-risk” basis. Firemen’s and Hiscox have cross-
moved for summary judgment on these coverage issues.
After hearing, the Court ALLOWS Firemen’s motion for summary
judgment 	(Dkt. 	15) 	and 	DENIES 	Hiscox’s 	cross-motion 	for 	summary
judgment (Dkt. 23).
BACKGROUND
The facts relevant to the parties’ cross-motions for summary
judgment are undisputed.
I. 	Insurance Policies
A. 	The Fireman’s Policy
Exterior 	is 	a 	“Named 	Insured” 	on 	a 	series 	of 	materially
identical 	insurance 	policies 	issued 	by 	Firemen’s 	for 	successive
periods between January 1, 2016, and January 1, 2020 (collectively,
Case 1:24-cv-12566-PBS Document 36 Filed 02/13/26 Page 2 of 15

3
the 	“Firemen’s 	Policy”). 	“Coverage 	A” 	of 	the 	Firemen’s 	Policy
provides 	commercial 	general 	liability 	coverage 	for 	“those 	sums
that 	the 	insured 	becomes 	legally 	obligated 	to 	pay 	as 	damages
because 	of 	. 	. 	. 	‘property 	damage’ 	to 	which 	this 	insurance
applies.” 	Dkt. 	18-6 	at 	179. 	The 	Fireman’s 	Policy 	contains 	the
following “other insurance” provision:
4. 	Other Insurance
If 	other 	valid 	and 	collectible 	insurance 	is
available to the insured for a loss we cover under
Coverage[] 	A 	. 	. 	. 	of 	this 	Coverage 	Part, 	our
obligations are limited as follows:
a. 	Primary Insurance
This 	insurance 	is 	primary 	except 	when
Paragraph b. below applies. If this insurance
is 	primary, 	our 	obligations 	are 	not 	affected
unless 	any 	of 	the 	other 	insurance 	is 	also
primary. 	Then, 	we 	will 	share 	with 	all 	that
other 	insurance 	by 	the 	method 	described 	in
Paragraph c. below.
b. 	Excess Insurance
(1) 	This insurance is excess over:
. . .
(b) 	Any other primary insurance available to
you 	covering 	liability 	for 	damages
arising 	out 	of 	the 	premises 	or
operations, or the products and completed
operations, for which you have been added
as an additional insured.
(2) 	When this insurance is excess, we will have no
duty 	under 	Coverage 	A 	. 	. 	. 	to 	defend 	the
insured 	against 	any 	“suit” 	if 	any 	other
insurer 	has 	a 	duty 	to 	defend 	the 	insured
against 	that 	“suit”. 	If 	no 	other 	insurer
Case 1:24-cv-12566-PBS Document 36 Filed 02/13/26 Page 3 of 15

4
defends, 	we 	will 	undertake 	to 	do 	so, 	but 	we
will 	be 	entitled 	to 	the 	insured’s 	rights
against all those other insurers.
Id. 	at 	190. 	The 	Firemen’s 	Policy 	states 	that 	“[t]hroughout 	this
policy the words ‘you’ and ‘your’ refer to the Named Insured.” Id.
at 179.
B. 	The Hiscox Policy
Hiscox 	issued 	a 	commercial 	general 	liability 	policy 	listing
Carey 	as 	a 	“Named 	Insured” 	for 	the 	period 	from 	January 	25, 	2017,
to 	January 	25, 	2018 	(the 	“Hiscox 	Policy”). 	The 	Hiscox 	Policy
includes the following “Additional Insured” endorsement:
A. 	Section II – Who Is An Insured is amended to include
as 	an 	additional 	insured 	any 	person(s) 	or
organization(s) 	for 	whom 	you 	are 	performing
operations or leasing a premises when you and such
person(s) or organization(s) have agreed in writing
in 	a 	contract 	or 	agreement 	that 	such 	person(s) 	or
organization(s) 	be 	added 	as 	an 	additional 	insured
on 	your 	policy. 	Such 	person 	or 	organization 	is 	an
additional 	insured 	only 	with 	respect 	to 	liability
for “bodily injury”, “property damage” or “personal
and 	advertising 	injury” 	caused, 	in 	whole 	or 	in
part, 	by 	your 	acts 	or 	omissions 	or 	the 	acts 	or
omissions of those acting on your behalf:
1. 	In the performance of your ongoing operations; or
2. 	In connection with your premises owned by or rented
to you.
A 	person’s 	or 	organization’s 	status 	as 	an
additional insured under this endorsement ends when
your 	operations 	or 	lease 	agreement 	for 	that
additional insured are completed.
Dkt. 	18-9 	at 	23. 	The 	Hiscox 	Policy 	also 	contains 	an 	“other
insurance” 	provision 	that 	is 	similar 	in 	relevant 	part 	to 	the 	one
Case 1:24-cv-12566-PBS Document 36 Filed 02/13/26 Page 4 of 15

5
in the Firemen’s Policy. Under the Hiscox Policy, “the words ‘you’
and 	‘your’ 	refer 	to 	the 	Named 	Insured 	shown 	in 	the 	Declarations,
and any other person or organization qualifying as a Named Insured
under this policy,” while the “word ‘insured’ means any person or
organization 	qualifying 	as 	such 	under 	Section 	II 	– 	Who 	Is 	An
Insured.” Id. at 6.
II. 	Marina Bay Action
This 	insurance 	coverage 	dispute 	arises 	from 	underlying
litigation 	over 	allegedly 	deficient 	work 	during 	a 	construction
project 	in 	Quincy, 	Massachusetts. 	Marina 	Bay 	Residences, 	LLC
(“Marina 	Bay”) 	began 	construction 	on 	two 	mixed-use 	buildings 	in
2015. Callahan, Inc. (“Callahan”) served as general contractor for
the project. In January 2016, Callahan retained Exterior to conduct
exterior 	siding 	and 	trim 	work. 	Exterior 	itself 	retained 	at 	least
eleven 	subcontractors 	to 	complete 	this 	work. 	One 	of 	those
subcontractors 	was 	Carey, 	whom 	Exterior 	hired 	on 	or 	about 	March
22, 	2017. 	The 	Exterior-Carey 	subcontract 	stated 	that 	Exterior
“shall be named as [an] Additional Insured[]” on Carey’s commercial
general liability policy. Dkt. 18-5 at 13. Throughout 2017, Carey
provided 	“CMU 	furring, 	air 	water 	barrier, 	flashing, 	trim, 	and
related work” for the project, Dkt. 18-3 ¶ 146, finishing his work
on 	December 	29, 	2017. 	The 	Marina 	Bay 	project 	was 	substantially
completed on April 23, 2018.
Case 1:24-cv-12566-PBS Document 36 Filed 02/13/26 Page 5 of 15

6
Between 	2018 	and 	2020, 	Marina 	Bay 	discovered 	water
intrusions, leaks, and microbial growth throughout the buildings.
On 	November 	18, 	2021, 	Marina 	Bay 	filed 	suit 	against 	Callahan 	in
Massachusetts 	Superior 	Court 	alleging 	that 	Callahan’s 	and 	its
subcontractors’ defective work caused the damage to the buildings
(the 	“Marina 	Bay 	Action”). 	Callahan 	then 	filed 	a 	third-party
complaint against Exterior. Callahan alleged, among other things,
that 	Exterior 	performed 	defective 	work 	on 	the 	project 	that
contributed to the damage. Exterior, in turn, filed a fourth-party
complaint 	against 	Carey 	and 	ten 	subcontractors 	in 	which 	Exterior
claimed that the subcontractors were responsible for the defective
work. Callahan subsequently filed an amended third-party complaint
adding claims directly against some of Exterior’s subcontractors,
including Carey.
Firemen’s agreed to defend Exterior in the Marina Bay Action
under the Firemen’s Policy. Hiscox also agreed to defend Exterior
as an additional insured under the Hiscox Policy. Citing the “other
insurance” 	provisions 	in 	the 	respective 	policies, 	Firemen’s
“ask[ed] 	Hiscox 	to 	assume 	Exterior’s 	defense 	on 	a 	primary,
noncontributory 	basis.” 	Dkt. 	18-13 	at 	2. 	Hiscox 	declined,
asserting 	that 	the 	Firemen’s 	and 	Hiscox’s 	Policies 	were 	primary
for 	different 	periods 	of 	time 	and, 	thus, 	that 	the 	two 	insurers
should 	share 	defense 	costs 	based 	on 	their 	respective 	time 	on 	the
risk. This lawsuit followed.
Case 1:24-cv-12566-PBS Document 36 Filed 02/13/26 Page 6 of 15

7
LEGAL STANDARD
Summary 	judgment 	is 	appropriate 	“if 	the 	movant 	shows 	that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“A 	genuine 	dispute 	is 	one 	which 	‘a 	reasonable 	jury 	could
resolve . . . in the favor of the non-moving party,’ and a material
issue is one with the ‘potential to affect the outcome . . . under
the 	applicable 	law.’” 	Kinzer v. 	Whole 	Foods 	Mkt., 	Inc., 	99 	F.4th
105, 	108 	(1st 	Cir. 	2024) 	(alterations 	in 	original) 	(quoting
Cherkaoui v. City of Quincy, 877 F.3d 14, 23-24 (1st Cir. 2017)).
In 	determining 	whether 	to 	grant 	summary 	judgment, 	a 	court 	must
construe “the facts in the light most favorable to the non-moving
party” 	and 	“draw[] 	all 	reasonable 	inferences” 	in 	her 	favor. 	Id.
(quoting Harley-Davidson Credit Corp. v. Galvin, 807 F.3d 407, 408
(1st Cir. 2015)).
This standard “do[es] not change where the parties file cross-
motions for summary judgment.” Roberge v. Travelers Prop. Cas. Co.
of 	Am., 	112 	F.4th 	45, 	51 	(1st 	Cir. 	2024). 	On 	cross-motions, 	the
court 	“review[s] 	each 	motion 	‘separately, 	drawing 	facts 	and
inferences 	in 	favor 	of 	the 	non-moving 	party.’” 	Id. 	(quoting
Scottsdale Ins. Co. v. United Rentals (N. Am.), Inc., 977 F.3d 69,
72 (1st Cir. 2020)).
Case 1:24-cv-12566-PBS Document 36 Filed 02/13/26 Page 7 of 15

8
DISCUSSION
The 	main 	argument 	asserted 	by 	Firemen’s 	in 	this 	lawsuit 	is
that Hiscox’s coverage of Exterior’s defenses costs in the Marina
Bay 	Action 	is 	primary 	due 	to 	the 	“other 	insurance” 	provision 	in
the Firemen’s Policy and, thus, that Hiscox must assume Exterior’s
entire 	defense. 	Hiscox 	disagrees, 	contending 	that 	Firemen’s 	and
Hiscox are co-primary insurers for purposes of Exterior’s defense
costs. Should the Court conclude that Firemen’s and Hiscox are co-
primary insurers, the parties quarrel over how defense costs should
be allocated. Firemen’s asserts that the two insurers should evenly
split the defense costs, while Hiscox urges the Court to apply the
“time on the risk” allocation method.
Resolving 	these 	disputes 	requires 	interpreting 	the 	language
of the two insurance policies. The parties agree that Massachusetts
law 	applies 	in 	this 	case. 	Under 	Massachusetts 	law, 	the
“[i]nterpretation 	of 	an 	insurance 	contract 	is 	a 	pure 	question 	of
law.” 	Zurich 	Am. 	Ins. 	Co. v. 	Med. 	Props. 	Tr., 	Inc., 	237 	N.E.3d
733, 737 (Mass. 2024). This inquiry draws on “the general rules of
contract 	interpretation.” 	U.S. 	Fire 	Ins. 	Co. 	v. 	Peterson’s 	Oil
Serv., 	Inc., 	155 	F.4th 	22, 	34 	(1st 	Cir. 	2025) 	(quoting 	AIG 	Prop.
Cas. Co. v. Cosby, 892 F.3d 25, 27 (1st Cir. 2018)); see Verveine
Corp. 	v. 	Strathmore 	Ins. 	Co., 	184 	N.E.3d 	1266, 	1272 	(Mass. 	2022)
(“Interpretation 	of 	language 	in 	an 	insurance 	contract 	is 	no
different from the interpretation of any other contract.” (quoting
Case 1:24-cv-12566-PBS Document 36 Filed 02/13/26 Page 8 of 15

9
Metro. Life Ins. Co. v. Cotter, 984 N.E.2d 835, 844 (Mass. 2013))).
Thus, 	courts 	“interpret 	‘the 	words 	of 	the 	policy 	in 	their 	usual
and 	ordinary 	sense’” 	to 	“determine 	‘the 	fair 	meaning 	of 	the
language used.’” Lawrence Gen. Hosp. v. Cont’l Cas. Co., 90 F.4th
593, 598-99 (1st Cir. 2024) (quoting Verveine, 184 N.E.3d at 1272).
“A policy of insurance whose provisions are plainly and definitely
expressed 	in 	appropriate 	language 	must 	be 	enforced 	in 	accordance
with its terms.” Cubberley v. Com. Ins. Co., 249 N.E.3d 1129, 1136
(Mass. 	2025) 	(quoting 	McGilloway 	v. 	Safety 	Ins. 	Co., 	174 	N.E.3d
1191, 1196 (Mass. 2021)).
This 	case 	concerns 	the 	parties’ 	duty 	to 	defend 	Exterior 	in
the Marina Bay Action. Under Massachusetts law, an insurer’s duty
to 	defend 	“is 	more 	expansive 	than 	[its] 	duty 	to 	indemnify.” 	U.S.
Fire 	Ins. 	Co., 	155 	F.4th 	at 	29 	(quoting 	Millipore 	Corp. 	v.
Travelers Indem. Co., 115 F.3d 21, 35 (1st Cir. 1997)). An insurer
has 	a 	duty 	to 	defend 	when 	“the 	facts 	alleged” 	in 	the 	complaint
“are 	‘reasonably 	susceptible 	of 	an 	interpretation 	that 	states 	or
roughly 	sketches 	a 	claim 	covered 	by 	the 	policy 	terms.’” 	Id.
(quoting 	Billings 	v. 	Com. 	Ins. 	Co., 	936 	N.E.2d 	408, 	414 	(Mass.
2010)). In other words, the “facts alleged need not ‘specifically
and unequivocally make out a claim within the coverage’ but rather
‘need 	only 	show, 	through 	general 	allegations, 	a 	possibility 	that
the 	liability 	claim 	falls 	within 	the 	insurance 	coverage.’”
Case 1:24-cv-12566-PBS Document 36 Filed 02/13/26 Page 9 of 15

10
Lionbridge Techs., LLC v. Valley Forge Ins. Co., 53 F.4th 711, 719
(1st Cir. 2022) (quoting Billings, 936 N.E.2d at 414).
Hiscox 	asserts, 	and 	Firemen’s 	does 	not 	dispute, 	that 	the
allegations against Exterior in the Marina Bay Action sketch claims
seeking to hold Exterior liable in three relevant respects: 1) for
Exterior’s 	own 	negligence; 	2) for 	Exterior’s 	vicarious 	liability
for Carey’s negligence; and 3) for Exterior’s vicarious liability
for 	the 	negligence 	of 	its 	other 	ten 	subcontractors. 	Firemen’s
admits that these allegations trigger a duty to defend Exterior in
the 	Marina 	Bay 	Action 	under 	the 	Firemen’s 	Policy. 	For 	its 	part,
Hiscox 	concedes 	that 	it 	must 	cover 	and 	defend 	Exterior 	as 	an
additional 	insured 	under 	the 	Hiscox 	Policy 	with 	respect 	to
Exterior’s 	vicarious 	liability 	for 	Carey’s 	negligence. 	The 	Court
also 	assumes 	without 	deciding, 	as 	the 	parties 	appear 	to 	do, 	that
the Hiscox Policy does not cover the other two buckets of potential
liability 	for 	Exterior, 	i.e., 	Exterior’s 	own 	negligence 	and
Exterior’s 	vicarious 	liability 	for 	the 	negligence 	of 	the
subcontractors other than Carey.
Insofar as Hiscox means to argue that it has no duty to defend
Exterior 	against 	allegations 	regarding 	Exterior’s 	own 	negligence
or 	Exterior’s 	vicarious 	liability 	for 	the 	negligence 	of 	the
subcontractors 	other 	than 	Carey, 	the 	Court 	is 	unpersuaded.
“Massachusetts 	operates 	under 	an 	‘in 	for 	one, 	in 	for 	all’ 	rule
such 	that 	a 	general 	liability 	insurer 	‘must 	defend 	the 	entire
Case 1:24-cv-12566-PBS Document 36 Filed 02/13/26 Page 10 of 15

11
lawsuit if it has a duty to defend any of the underlying counts in
the 	complaint.’” 	U.S. 	Fire 	Ins. 	Co., 	155 	F.4th 	at 	29 	(quoting
Deutsche Bank Nat’l Ass’n v. First Am. Title Ins. Co., 991 N.E.2d
638, 	641 	n.11 	(Mass. 	2013)); 	see 	Federated 	Mut. 	Ins. 	Co. 	v.
Peterson’s 	Oil 	Serv., 	Inc., 	155 	F.4th 	1, 	7 	(1st 	Cir. 	2025)
(explaining 	that 	“where 	an 	insurer 	is 	obligated 	to 	defend 	an
insured on one of the counts alleged against it, the insurer must
defend 	the 	insured 	on 	all 	counts, 	including 	those 	that 	are 	not
covered” 	(quoting 	Mount 	Vernon 	Fire 	Ins. 	Co. 	v. 	Visionaid, 	Inc.,
76 N.E.3d 204, 210 (Mass. 2017))). Because Hiscox concedes that it
has 	a 	duty 	to 	defend 	Exterior 	against 	the 	allegations 	concerning
Exterior’s 	vicarious 	liability 	for 	Carey’s 	negligence, 	Hiscox’s
duty to defend Exterior encompasses the entire lawsuit.
The 	next 	question 	is 	the 	relationship 	between 	the 	two
insurers’ 	duties 	to 	defend 	Exterior 	in 	the 	Marina 	Bay 	Action. 	To
answer 	this 	question, 	the 	Court 	must 	examine 	“the 	terms 	of 	the
respective policies.” Great Divide Ins. Co. v. Lexington Ins. Co.,
84 	N.E.3d 	844, 	851 	(Mass. 	2017) 	(quoting 	Moroney 	Body 	Works,
Inc. v. Cent. Ins. Cos., 35 N.E.3d 397, 399 (Mass. App. Ct. 2015)).
Hiscox does not assert that the “other insurance” provision in its
policy is triggered in this case. Firemen’s, however, argues that
its 	“other 	insurance” 	provision 	makes 	its 	coverage 	of 	Exterior’s
defense costs excess over the coverage provided by Hiscox.
Case 1:24-cv-12566-PBS Document 36 Filed 02/13/26 Page 11 of 15

12
The 	Firemen’s 	Policy’s 	“other 	insurance” 	provision 	states
that 	“[i]f 	other 	valid 	and 	collectible 	insurance 	is 	available 	to
the 	insured 	for 	a 	loss 	we 	cover,” 	Firemen’s 	“insurance 	is 	excess
over . . . [a]ny other primary insurance available to you covering
liability 	for 	damages 	arising 	out 	of 	the 	premises 	or 	operations,
or the products and completed operations, for which you have been
added as an additional insured.” Dkt. 18-6 at 190. As noted, there
is no dispute that the Hiscox Policy covers Exterior on a primary
basis as an additional insured with respect to Exterior’s vicarious
liability for Carey’s negligence. Under its plain terms, then, the
Firemen’s Policy’s coverage of any loss resulting from Exterior’s
vicarious liability for Carey’s negligence is excess over Hiscox’s
primary 	coverage. 	See 	Moroney 	Body 	Works, 	35 	N.E.3d 	at 	399
(explaining 	that 	“other 	insurance” 	provisions 	“apply 	where 	there
are two or more concurrent policies that ‘insure the same risk and
the same interest, for the benefit of the same person, during the
same 	period’” 	(quoting 	Bos. 	Gas 	Co. 	v. 	Century 	Indem. 	Co., 	910
N.E.2d 290, 308 n.36 (Mass. 2009))). Yet Exterior’s coverage under
the Firemen’s Policy is not entirely excess, as the parties agree
that 	the 	Hiscox 	Policy 	does 	not 	cover 	any 	loss 	resulting 	from
Exterior’s 	own 	negligence 	and 	Exterior’s 	vicarious 	liability 	for
the negligence of the subcontractors other than Carey.
“Other 	insurance” 	provisions 	only 	affect 	the 	allocation 	of
defense 	costs 	when 	they 	“make 	. 	. 	. 	reference 	to 	the 	insurers’
Case 1:24-cv-12566-PBS Document 36 Filed 02/13/26 Page 12 of 15

13
defense 	obligations.” 	Preferred 	Mut. 	Ins. 	Co. 	v. 	Vt. 	Mut. 	Ins.
Co., 	32 	N.E.3d 	336, 	343 	(Mass. 	App. 	Ct. 	2015). 	Here, 	the 	“other
insurance” 	provision 	in 	the 	Firemen’s 	Policy 	states 	that 	“[w]hen
this insurance is excess, we will have no duty . . . to defend the
insured 	against 	any 	‘suit’ 	if 	any 	other 	insurer 	has 	a 	duty 	to
defend the insured against that ‘suit.’” Dkt. 18-6 at 190.
The 	key 	issue 	in 	this 	coverage 	dispute 	is 	how 	this 	language
applies 	when, 	as 	here, 	the 	Firemen’s 	Policy’s 	coverage 	is 	excess
with 	respect 	to 	some, 	but 	not 	the 	whole, 	loss 	alleged 	in 	the
pleadings in the Marina Bay Action. This issue is a close call and
has 	been 	poorly 	briefed 	by 	the 	parties. 	Courts 	have 	reached
different 	results 	in 	coverage 	disputes 	involving 	similar
circumstances 	and 	the 	same 	“other 	insurance” 	language. 	Compare
Indemnity Ins. Co. of N. Am. v. Westfield Ins. Co., 58 F.4th 276,
278, 281-82, 284 (7th Cir. 2023) (holding under Illinois law that
an 	“other 	insurance” 	provision 	absolved 	an 	insurer 	of 	its
obligation to share defense costs even though the other insurance
policy, 	under 	which 	the 	insured 	was 	covered 	as 	an 	additional
insured, 	did 	not 	cover 	the 	entire 	time 	period 	or 	potential
liability 	alleged 	in 	the 	underlying 	complaint), 	and 	Transp. 	Ins.
Co. v. Motorists Mut. Ins. Co., No. 14-cv-01438, 2016 WL 1569971,
at *5-7 (M.D. Pa. Apr. 19, 2016) (similar under Pennsylvania law),
with 	Nat’l 	Cas. 	Co. 	v. 	W. 	World 	Ins. 	Co., 	669 	F.3d 	608, 	618 	(5th
Cir. 	2012) 	(holding 	under 	Texas 	law 	that 	“‘[o]ther 	insurance’
Case 1:24-cv-12566-PBS Document 36 Filed 02/13/26 Page 13 of 15

14
provisions limit an already-triggered duty to defend only when all
of 	the 	allegations 	in 	the 	underlying 	lawsuit 	that 	fall 	under 	the
policy’s 	coverage 	provision 	also 	fall 	under 	the 	policy’s 	‘other
insurance’ 	provision”), 	and 	Landmark 	Am. 	Ins. 	Co. 	v. 	Colony 	Ins.
Co., No. 24-cv-06445, 2025 WL 257884, at *6-9 (C.D. Cal. Jan. 13,
2025) 	(holding 	that 	a 	general 	contractor’s 	commercial 	liability
insurer owed co-primary duty to defend the general contractor along
with two subcontractors’ insurers where the general contractor was
an 	additional 	insured 	on 	the 	subcontractors’ 	policies 	and 	the
underlying 	complaint 	alleged 	some 	claims 	covered 	by 	all 	policies
and 	some 	covered 	only 	by 	the 	general 	contractor’s 	commercial
liability insurer).
Examining 	the 	plain 	language 	of 	the 	“other 	insurance”
provision in the Firemen’s Policy, see Great Divide Ins., 84 N.E.3d
at 849 (explaining that courts “focus on the plain language of an
insurance 	policy, 	rather 	than 	derive 	the 	parties’ 	intent 	through
other 	means”), 	the 	Court 	concludes 	that 	the 	policy 	absolves
Firemen’s of any primary duty to defend Exterior in the Marina Bay
Action. 	Under 	the 	“other 	insurance” 	provision, 	Firemen’s 	has 	no
duty 	to 	defend 	when 	two 	requirements 	are 	met: 	1) 	Firemen’s
“insurance 	is 	excess” 	and 	2) 	“any 	other 	insurer 	has 	a 	duty 	to
defend 	the 	insured 	against” 	the 	suit. 	Dkt. 	18-6 	at 	190. 	Both
requirements are satisfied here, as Exterior’s coverage under the
Firemen’s 	Policy 	is 	excess 	with 	respect 	to 	some 	of 	its 	potential
Case 1:24-cv-12566-PBS Document 36 Filed 02/13/26 Page 14 of 15

15
liability 	and 	Hiscox 	has 	a 	duty 	to 	defend 	Exterior 	against 	the
Marina 	Bay 	Action. 	Id. 	While 	it 	seems 	unfair 	under 	these
circumstances 	to 	require 	Hiscox 	to 	bear 	the 	full 	weight 	of
defending 	Exterior 	in 	the 	Marina 	Bay 	Action, 	“a 	court 	cannot, 	in
the name of equity, rewrite the language of an insurance contract.”
Lexington Ins. Co. v. Gen. Accident Ins. Co. of Am., 338 F.3d 42,
50 (1st Cir. 2003).
ORDER
For 	the 	foregoing 	reasons, 	Firemen’s 	motion 	for summary
judgment 	(Dkt. 	15) 	is 	ALLOWED, 	and 	Hiscox’s 	cross-motion 	for
summary 	judgment 	(Dkt. 	23) 	is 	DENIED. 	The 	Court 	declares 	that
Hiscox’s 	defense 	obligation 	is 	primary 	to 	that 	of 	Firemen’s. 	The
parties 	shall 	submit 	a 	proposed 	form 	of 	judgment 	within 	fourteen
days of the date of this order.
SO ORDERED.
/s/ PATTI B. SARIS__________
Hon. Patti B. Saris
United States District Judge
Case 1:24-cv-12566-PBS Document 36 Filed 02/13/26 Page 15 of 15