On April 13, 2017, the Virginia Supreme Court decided Nationwide Mutual Fire Ins. Co. v. Eire Ins. Exch., No. 160805. It is a declaratory judgment action to determine the priority of 5 liability insurance policies, arising from a wrongful death suit in Prince William County, Virginia.

Nationwide declared that the general liability policy provided no coverage for the wrongful death claim because it specifically excluded claims arising from auto use. Id. at 5-4. It also found irrelevant the subcontract indemnification clause in favor of a non-party to the wrongful death action, the sole issue being which policies covered the party tortfeaser. Id. at 5-7.

Nationwide decided the following proper order of insurance coverage priority: (1) the Eire liability policy covering the offending vehicle; (2) the Nationwide policy covering the offending driver; and (3) the Nationwide and Eire umbrella policies. Id. at 8, 10-11. It specified that umbrella policy responsibility was pro vata because both policies had “super-escape phraseology” that “operate mutually to reduce or eliminate the amount of collectible insurance coverage available.” Id. at 8-11.