and proration of expenses and/or liabilities between insurers are not before the court. The only issue presented here is the duty of an insurer to defend its insured.
In Pacific Indemnity Co. v. Linn, 590 F. Supp. 643 (E.D. Pa. 1984), aff'd, 766 F.2d 754 (3d Cir. 1985), the district court recognized that other insurance clauses apply "not to the duty to defend but only to the duty to indemnify since, in general, an 'other insurance' clause is invoked only when the insured has made some payment in discharge of liability." Id. at 651 n.10. "The duty to defend is unaffected by an 'other insurance' clause because, unless stated otherwise, that obligation is independent of liability and any limitations thereon." Id. (citations omitted). A perusal of the insurance contract in this case reveals no clause relieving defendant of its duty to defend if another insurance policy appears to provide primary coverage. Accordingly, the court finds that defendant is required to defend plaintiff in the eight (8) actions commenced and in other litigation involving the giardiasis problem to which the policy applies. Of course, there may be a suit, i.e., alleging bodily injury only, to which defendant's policy will not apply. This court cannot, however, prospectively decide which third-party lawsuits defendant will be compelled to defend on plaintiff's behalf. The parties must be guided by this Memorandum and Order in determining their future course of conduct. The court will not at this time order defendant to provide a defense in any lawsuit arising out of the presence of giardia cysts in the Elmhurst and Springbrook Reservoirs.
In passing, the court notes that the district court in Linn recognized that "it has not been determined under Pennsylvania law how defense costs are to be distributed between insurers." Pacific Indemnity Co. v. Linn, 590 F. Supp. at 654 n.15. Generally, each insurer deemed owing a defense to the insured is required to contribute to costs of defense in equal shares. Id. at 654. Our Court of Appeals, in its own opinion, cited this holding with approval. Pacific Indemnity Co. v. Linn, 766 F.2d at 768. This issue must be determined in the appropriate action.
Plaintiff has not briefed the issue of attorney's fees, reimbursement of costs actually expended or interest. The court recognizes that Pennsylvania National has been defending plaintiff to date in the aforementioned lawsuits. There is no indication in the record that plaintiff actually expended funds in its own defense thus far. The issue of distributing costs of defense between defendant and Pennsylvania National is not before the court.
Plaintiff's failure to brief these issues and failure to document expenses actually incurred by plaintiff, can be deemed a withdrawal of these requests. See Local Rule 401.5. The court, however, will hold the requests for reimbursement of expenses and interest on this amount in abeyance pending receipt of proper documentation and supporting brief from plaintiff. Certainly, plaintiff cannot expect to be reimbursed for funds which Pennsylvania National expended in defense of plaintiff. Likewise, it would appear that interest may be payable to Pennsylvania National in the appropriate action.
Thus, plaintiff will be afforded ten (10) days to establish that it is entitled to reimbursement with interest. A failure to submit this documentation will result in the conclusion that the requests are withdrawn.
Plaintiff's request for costs and attorney's fees incurred in bringing this action will be denied. "A court may award attorney's fees and costs incurred in bringing an action to establish the duties to defend and indemnify where the insurer's refusal to defend is unreasonable and in bad faith." Pacific Indemnity Co. v. Linn, 766 F.2d at 769. Defendant's refusal to defend up to this point was neither unreasonable or in bad faith. See Baker Industries, Inc. v. Cerberus Limited, 764 F.2d 204 (3d Cir. 1985) (assessing attorney's fees is a matter for the district court's discretion).
An appropriate Order will enter.
In accordance with the reasoning set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT:
(1) Plaintiff's Motion for Summary Judgment is granted insofar as it relates to defendant's duty to defend plaintiff in the eight (8) lawsuits already commenced.