In a battle between two insurers, one insurer's reliance upon its policy's escape provision did not excuse its failure to contribute to the insured's defense and an eventual settlement. See W. World Ins. Co. v. Markel Am Ins. Co., 2012 U.S. App. LEXIS 9335.

   The underlying plaintiff was injured when he fell down an elevator shaft. He sued the insured property owner, who had two policies, one from Western World and one from Markel. Western World defended and contributed to a settlement. At the conclusion of the underlying suit, Western World sought contribution from Markel.

   Markel declined, relying upon a provision found in an endorsement defining "Who Is An Insured." The provision read, "This insurance shall not apply to any entity that is already an insured under any other insurance provided by any company or that would be an insured but for the exhaustion of its limits of insurance." Based upon this escape clause, the trial court granted summary judgment to Markel.

   The Tenth Circuit reversed. Markel's policy also included an "Other Insurance" provision. This provision stated Markel provided "primary " coverage. Further, if another policy was also "primary", the two carriers would share the costs of coverage. If the escape clause meant Markel had no coverage obligations, this language from the "Other Insurance" provision would be meaningless. Given Markel's interpretation, the two competing clauses created contradictory results. The Tenth Circuit further noted that if an insurer wanted to limit its liability under its policy, it had to employ language that was clear and distinctly revealed its stated purpose.

   Having failed to do so in its policy, Markel was not entitled to summary judgment.