other insurance “apply to the loss on the same basis whether primary, excess or contingent,” the loss should be apportioned on a pro rata basis. See Lex. $9 million policy, Section IV.(M) (emphasis added). In light of that analysis, Executive Risk argues that the case boils down to a conflict between a primary policy with a pro rata “other insurance” clause and a primary policy with an excess “other insurance” clause. Executive Risk points out that its “other insurance” clause states that it “shall not contribute” with other insurance, unless that other insurance is “specifically stated to be excess of this Policy.” Executive Risk policy, Section IV.(G). Executive Risk says that the out come for which it argues is required by the decision in Dairyland, 102 Ariz. at 517, 433 P.2d 963 (<HOLDING>). In response, Lexington argues that Executive
holding that secondary insurer would incur liability pursuant to the provisions of its policy only as a provider of excess coverage and is not required to share pro rata responsibility for the insureds injuries holding that the plaintiffs asserted legal basis for coverage is irrelevant to the determination of whether the insurance policy provides coverage and instead looking to the facts underlying the claim for coverage holding that a policy with an excess other insurance clause provides no coverage until a policy with a pro rata other insurance clause is exhausted holding that new yorks public policy does not bar insurance coverage for disparate impact employment discrimination but noting that the state of new york insurance department has stated that it is against public policy to provide insurance coverage for intentional acts of discrimination holding that under minnesota law an insurance policy or provision not filed with the commissioner of insurance is unenforceable