Great West Casualty Co. v. Nationwide Agribusiness Insurance Co.

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 24-1258 & 24-1259

GREAT WEST CASUALTY CO.,

Plaintiff-Appellee, Cross-Appellant,

v.

NATIONWIDE AGRIBUSINESS INSURANCE CO., and CONSERV FS,

INC.,

Defendants-Appellants, Cross-Appellees,

and

TIMOTHY A. BRENNAN, as Administrator of the Estate of Pat-

rick J. Brennan, deceased,

Defendant.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 23-cv-2178 — Matthew F. Kennelly, Judge.

____________________

ARGUED SEPTEMBER 26, 2024 — DECIDED FEBRUARY 11, 2026

____________________

Before EASTERBROOK, ST. EVE, and PRYOR, Circuit Judges.

2 Nos. 24-1258 & 24-1259

PRYOR, Circuit Judge. Great West Casualty Company

(“Great West”) and Nationwide Agribusiness Insurance

Company (“Nationwide”) collectively insured a tractor-

trailer involved in an unfortunate collision with a passenger

vehicle driven by Patrick J. Brennan. The side-impact collision

killed Brennan, prompting his estate’s wrongful death suit

against various entities in state court. The insurers agree that

both of their policies provide coverage, but filed the underly-

ing declaratory judgment action to determine which policy

pays first. The district court concluded that the companies

have equal payment priority. For the reasons provided below,

we affirm.

I. BACKGROUND

A. Facts

The auto accident underlying this case occurred on June 2,

2021, near Sycamore, Illinois. A tractor-trailer driven by Rob-

ert D. Fisher collided with an SUV driven by Patrick J. Bren-

nan, killing Brennan. Fisher was an agent of Deerpass Farms

Trucking, LLC-II (“Deerpass Trucking”).

Deerpass Trucking is an interstate motor carrier that pro-

vides transportation services. It, however, owned neither the

2014 Kenworth tractor nor the 1989 Sunshine tanker trailer in-

volved in the underlying collision. It leased the tractor from

Deerpass Farms Services, LLC (“Deerpass Farms”) pursuant

to an Independent Contractor Equipment Lease Agreement

(“Deerpass Lease”), signed on August 1, 2020. And the trailer

was owned by Conserv FS, Inc. (“Conserv”). Deerpass Truck-

ing hauled cargo and empty trailers for Conserv pursuant to

a Trailer Interchange Equipment Use Agreement (“Inter-

change Agreement”), signed January 12, 2021.

Nos. 24-1258 & 24-1259 3

The tractor and trailer were both insured with commercial

liability insurance. Great West insured the tractor with a $1

million policy limit with the policyholder, Deerpass Trucking.

Nationwide insured the trailer with a $2 million policy limit

to Conserv.

On October 12, 2021, Brennan’s estate brought a wrongful

death suit in Illinois state court, eventually adding Fisher,

Deerpass Trucking, Deerpass Services, and Conserv as de-

fendants. On April 6, 2023, Great West sued Nationwide in

federal court seeking a declaratory judgment precipitating

this appeal. Before we elaborate on the district court proceed-

ings, we briefly introduce the insurance contracts that lay the

foundation for Great West and Nationwide’s dispute over

their coverage responsibilities.

B. The Insurance Policies

Great West and Nationwide agree that each of their poli-

cies cover Fisher, Deerpass Trucking, and Conserv. The Great

West policy provided coverage with a $1 million limit per ac-

cident or loss. The Great West policy covers Deerpass Truck-

ing because Deerpass Trucking is the policyholder.

The policy also insures anyone using a “covered auto”

with Deerpass Trucking’s permission. Under Great West’s

policy, an “insured” is defined as “[t]he owner or anyone else

from whom you hire or borrow a covered ‘auto’ that is a ‘trailer’

while the ‘trailer’ is connected to another covered ‘auto’ that

is a power unit, or, if not connected, is being used exclusively

in your business.” The parties agree that the tractor was a

“covered auto” under the Great West policy, that Fisher is “in-

sured” because he was operating the tractor with the permis-

sion of Deerpass Trucking, and that Conserv is “insured”

4 Nos. 24-1258 & 24-1259

because it owned the trailer coupled to the tractor. Thus, the

Great West policy covers Deerpass Trucking (the policy-

holder), as well as Conserv (the trailer owner) and Fisher (the

operator).

Nationwide’s policy similarly covers all three entities us-

ing similar definitions used in the Great West policy. It covers

Conserv as the policyholder. It also covers anyone “using

with [Conserv’s] permission a covered ‘auto’” that Conserv

owned, so both Deerpass Trucking and the operator, Fisher,

were covered under the Nationwide policy as well. The Na-

tionwide policy provided coverage with a $2 million limit per

accident or loss.

Both policies contemplate an insured’s ability to collect

coverage payments from multiple insurers by distinguishing

between “primary” coverage and “excess” coverage. The dis-

tinction is simple but at the core of this case: when an entity is

covered by two policies, the policy providing primary cover-

age pays first (up to the policy limit). Only after the primary

policy has paid does the excess coverage kick in. 1 To under-

stand the parties’ coverage dispute, we examine the “Other

Insurance” provisions from each policy.

1. Nationwide’s “Other Insurance” Section

a. For any covered “auto” you own, this

Coverage Form provides primary insurance.

For any covered “auto” you don’t own, the in-

surance provided by this Coverage Form is

1 See Sean Ross, Understanding Insurance vs. Excess Insurance vs. Reinsur-

ance, INVESTOPEDIA (Aug. 10, 2023), https://www.investopedia.com/arti-

cles/personal-finance/081116/insurance-excess-insurance-and-reinsur-

ance-whats-difference-all.asp.

Nos. 24-1258 & 24-1259 5

excess over any other collectible insurance.

However, while a covered “auto” which is a

“trailer” is connected to another vehicle, the

Covered Autos Liability Coverage this coverage

Form provides for the “trailer” is:

(1) Excess while it is connected to a motor

vehicle you do not own; or

(2) Primary while it is connected to a covered

“auto” you own.

Nationwide’s coverage is “excess” coverage because, as the

parties agree, paragraph 5.a(1) of Nationwide’s “Other Insur-

ance” provision applies here. This is because the policyholder,

Conserv, owned a “covered auto”—the trailer—that was

“connected to a motor vehicle [Conserv] do[es] not own”—

the tractor. Next, we look at the relevant language from the

“Other Insurance” section of the Great West policy.

2. Great West’s “Other Insurance” Section

a. While any covered “auto” is hired or bor-

rowed from you by another “motor carrier,”

this Coverage Form’s Covered Autos Liability

Coverage is:

(1) Primary if a written agreement between

you as the lessor and the other “motor car-

rier” as the lessee requires you to hold the

lessee harmless.

(2) Excess over any other collectible insur-

ance if a written agreement between you as

the lessor and the other “motor carrier” as

6 Nos. 24-1258 & 24-1259

the lessee does not require you to hold the

lessee harmless.

b. While any covered “auto” is hired or bor-

rowed by you from another “motor carrier”

this Coverage Form's Covered Autos Liability

Coverage is:

(1) Primary if a written agreement between

the other “motor carrier” as the lessor and

you as the lessee does not require the lessor

to hold you harmless, and then only while

the covered “auto” is used exclusively in

your business as a “motor carrier” for hire.

(2) Excess over any other collectible insur-

ance if a written agreement between the

other “motor carrier” as the lessor and you

as the lessee requires the lessor to hold you

harmless.

c. While a covered “auto” which is a

“trailer” is connected to a power unit, this Cov-

erage Form’s Covered Autos Liability Cover-

age is:

(1) Provided on the same basis, either

primary or excess, as the Covered Autos Li-

ability Coverage provided for the power

unit if the power unit is a covered “auto”.

(2) Excess if the power unit is not a

covered “auto”.

***

Nos. 24-1258 & 24-1259 7

e. Except as provided in Paragraphs a., b.,

c. and d. above, this Coverage Form provides

primary insurance for any covered “auto” you

own and excess insurance for any covered

“auto” you do not own.

***

g. Regardless of the provisions of Para-

graphs a., b., c., d. and e. above, this Coverage

Form’s Covered Autos Liability Coverage is pri-

mary for any liability assumed under an “in-

sured contract.”

We will revisit these provisions as they become relevant to

the analysis.

C. Federal Proceedings

On April 6, 2023, a few weeks after Conserv was named as

a defendant in the state court proceedings, Great West sued

Nationwide and the Brennan estate’s administrator in federal

district court, eventually adding Conserv as a defendant in

the federal case as well. Great West sought declaratory judg-

ment as to the insurers’ payment responsibilities towards the

defense and liability costs of their mutual insured persons or

entities: Deerpass Trucking (tractor-trailer lessee), Conserv

(trailer owner), and Fisher (operator).

While Great West acknowledged that its policy covered all

three entities, it specifically sought a declaration that its policy

provided excess rather than primary coverage. Great West

did not stop there—it contended that by operation of each

policy’s “Other Insurance” section, Great West’s policy pro-

vided excess coverage over Nationwide’s excess coverage be-

cause Great West’s “Other Insurance” section specifies that in

8 Nos. 24-1258 & 24-1259

certain scenarios Great West’s coverage is “excess over any

other collectible insurance.” Nationwide counterclaimed,

seeking a declaration that Great West’s policy was primary,

but that, if excess, it was not excess over Nationwide’s cover-

age. Great West moved for summary judgment.

Exercising diversity jurisdiction and applying Illinois con-

tract law, 2 the district court granted partial summary judg-

ment in favor of Great West. The district court agreed that the

Great West policy, like Nationwide’s policy, provided “ex-

cess” coverage, but disagreed with Great West’s assertion that

its policy is “excess over” Nationwide. To reach the “excess”

coverage determination, the district court found paragraph

5.b of Great West’s “Other Insurance” provision governed be-

cause Deerpass Trucking had leased the tractor from

Deerpass Farms, a “motor carrier” as defined in the policy.

The Deerpass Lease relationship coupled with paragraph

5.b(2) and the policy’s express language, “[e]xcess over any

other collectible insurance,” the district court reasoned, ren-

dered the Great West policy “excess” not primary.

Next, the district court considered and rejected Nation-

wide’s argument that paragraph 5.g of Great West’s “Other

Insurance” provision applied based on Deerpass Trucking’s

obligations under the Interchange Agreement with Conserv.

That paragraph states that, regardless of anything in the pre-

ceding paragraphs, Great West’s coverage is primary if the

2 Great West is a Nebraska corporation based in Sioux Falls, Nebraska.

Nationwide is an Iowa corporation based in Des Moines, Iowa. Conserv is

an Illinois corporation based in Woodstock, Illinois. Timothy Brennan, ad-

ministrator of the Brennan estate, is a Missouri citizen, and the decedent,

Patrick Brennan, was a citizen of Illinois. (App. Dkt. 17, Nationwide Br.,

at 1); (App. Dkt. 20, Great West Br., at 1–2). See 28 U.S.C. § 1332.

Nos. 24-1258 & 24-1259 9

policyholder assumed liability under an “insured contract.”

Nationwide argued that the Interchange Agreement between

Deerpass Trucking and Conserv is such a contract, but the dis-

trict court disagreed. Citing Illinois caselaw, the district court

explained that an insured contract requires one party to as-

sume the tort liability of the other, but that Deerpass Trucking

had only “agreed to indemnify Conserv for liability arising

from [Deerpass Trucking’s] own actions.” (emphasis in original).

This did not meet the definition of an insured contract and

therefore did not override paragraph 5.b(2) by triggering par-

agraph 5.g.

The court then rejected Great West’s argument that “ex-

cess over any collectible insurance” in its policy makes its cov-

erage “excess over” Nationwide’s coverage. The court found

the case Great West relied on to be distinguishable and noted

the lack of any others supporting Great West’s interpretation.

The district court concluded by ordering the parties to

split defense and liability costs in proportion to their coverage

limits, as they conceded was dictated by their respective pol-

icies. 3 Nationwide appeals, insisting that Great West’s cover-

age is primary. Great West cross-appeals, renewing its argu-

ments that its coverage is both excess and “excess over” Na-

tionwide’s coverage.

3 The parties do not challenge the district court’s conclusion that if both

insurers were excess, under Illinois law, the insurers have equal payment

priority paying proportionately according to their respective policy limits.

For purposes of this appeal, we do not address the accuracy of this prop-

osition.

10 Nos. 24-1258 & 24-1259

II. DISCUSSION

A. Standard of Review

We review a district court’s grant of summary judgment

de novo and consider the facts and draw all inferences in the

light most favorable to the nonmoving party. Tech. Sec. Inte-

gration, Inc. v. EPI Techs., Inc., 126 F.4th 557, 560 (7th Cir. 2025).

(citation omitted).

B. Applicable Law

Federal courts sitting in diversity apply the law of the fo-

rum state when interpreting contracts. Hess v. Biomet, Inc., 105

F.4th 912, 917 (7th Cir. 2024). The parties agree that Illinois

law governs this contract dispute, so we analyze their argu-

ments according to Illinois law.

When construing policy language, Illinois courts apply the

same rules applicable to contract interpretation. Sproull v.

State Farm Fire & Cas. Co., 184 N.E.3d 203, 209 (Ill. 2021). The

“primary objective is to ascertain and give effect to the intent

of the parties, as expressed in the policy language.” Acuity v.

M/I Homes of Chicago, LLC, 234 N.E.3d 97, 105 (Ill. 2023); Cres-

cent Plaza Hotel Owner, L.P. v. Zurich Am. Ins. Co., 20 F.4th 303,

308 (7th Cir. 2021). We “look to the contract as a whole,”

adopting the most natural and reasonable reading of the con-

tract. Land of Lincoln Goodwill Indus., Inc. v. PNC Fin. Servs.

Grp., Inc., 762 F.3d 673, 679 (7th Cir. 2014) (applying Illinois

law); Sproull, 184 N.E.3d at 209.

Policy terms that are clear and unambiguous will be en-

forced as written unless doing so violates public policy. State

Farm Mut. Auto. Ins. Co. v. Elmore, 181 N.E.3d 865, 871 (Ill.

2020). Ambiguity exists only where the policy language is sus-

ceptible to more than one reasonable interpretation. Id.

Nos. 24-1258 & 24-1259 11

(citation omitted). Reasonableness is the cornerstone, as pol-

icy terms will not be deemed ambiguous simply because a

term is undefined within the policy or because the parties can

suggest creative possibilities for its meaning. Id. For it is the

court’s job “whenever possible … to give meaning to every

provision of the contract and avoid a construction that would

render a provision superfluous.” Land of Lincoln, 762 F.3d at

679; see also Clanton v. Oakbrook Healthcare Ctr., 226 N.E.3d

1266, 1275 (Ill. 2023) (favoring contract interpretation that was

most harmonious and “[did] not render any language super-

fluous”). But this principle is “not absolute.” Stone v. Signode

Indus. Grp. LLC, 943 F.3d 381, 387–88 (7th Cir. 2019). It is un-

derstood that some redundancy in insurance contracts is nor-

mal, but construing an endorsement to be completely super-

fluous is not. Crescent Plaza, 20 F.4th at 311 (quoting Great W.

Cas. Co. v. Robbins, 833 F.3d 711, 717–18 (7th Cir. 2016)).

We turn to the analysis with these principles in mind. Re-

call that the district court concluded Nationwide and Great

West both owe excess insurance coverage and therefore must

pay a pro rata share proportionate to their coverage limits. We

begin first by examining appellant Nationwide’s contention

the district court erred in determining Great West’s coverage

to be excess. We then turn to cross-appellant Great West’s ar-

gument that its coverage is excess even to Nationwide’s cov-

erage.

C. Great West’s Coverage is Excess

Nationwide points to paragraphs 5.b and 5.g in Great

West’s “Other Insurance” provision to support its contention

that Great West’s coverage is primary, not excess.

12 Nos. 24-1258 & 24-1259

1. Paragraph 5.b

We begin with 5.b, reproduced below:

b. While any covered “auto” is hired or borrowed by

you from another “motor carrier” this Coverage

Form's Covered Autos Liability Coverage is:

(1) Primary if a written agreement between the

other “motor carrier” as the lessor and you as

the lessee does not require the lessor to hold you

harmless, and then only while the covered

“auto” is used exclusively in your business as a

“motor carrier” for hire.

(2) Excess over any other collectible insurance if a

written agreement between the other “motor

carrier” as the lessor and you as the lessee re-

quires the lessor to hold you harmless.

The district court held that paragraph 5.b(2) applied, mak-

ing Great West’s coverage excess. Nationwide seemingly con-

cedes that if paragraph 5.b applies, then paragraph 5.b(2)

would render Great West’s coverage excess like Nationwide’s

coverage. But Nationwide resists that conclusion by arguing

paragraph 5.b does not apply in the first place, for two rea-

sons.

First, Nationwide suggests paragraph 5.b’s introductory

clause “hired or borrowed” is ambiguous. Nationwide main-

tains that the policyholder, Deerpass Trucking, leased the trac-

tor instead of hiring or borrowing it. According to Nation-

wide, leasing is distinct enough from hiring and borrowing

such that leasing a covered auto does not trigger paragraph

5.b. This argument is unpersuasive, however, by looking di-

rectly at the structure of paragraph 5.b itself, which clearly

Nos. 24-1258 & 24-1259 13

contemplates the presence of a lease. Subparagraphs 5.b(1)

and 5.b(2) both refer to a “lessor” and “lessee.” Lessors and

lessees, of course, are connected through a lease. If Nation-

wide is correct that paragraph 5.b does not apply when a trac-

tor is leased, then neither subparagraph could ever be trig-

gered, even though each refers exclusively to a lessor-lessee

relationship. Our task is to “look to the contract as a whole in

interpreting its individual terms,” adopting the most natural

and reasonable reading of the contract. Land of Lincoln, 762

F.3d at 679. The most natural reading—and indeed the only

reading that gives subparagraphs 5.b(1) and 5.b(2) any mean-

ing—is to interpret paragraph 5.b’s triggering requirement

that a covered auto be “hired or borrowed” to include leases.

Second, Nationwide challenges the applicability of para-

graph 5.b on equity grounds. Paragraph 5.b(2) states that

Great West’s coverage is “excess over any other collectible in-

surance” if a contract between the lessor and lessee of the trac-

tor “requires the lessor to hold [the lessee] harmless.” Nation-

wide does not dispute that the Deerpass Lease, executed be-

tween Deerpass Farms (lessor) and Deerpass Trucking (les-

see) requires that Deerpass Farms indemnify Deerpass Truck-

ing. Instead, Nationwide argues that allowing the Deerpass

Lease to trigger subparagraph 5.b(2)’s excess coverage clause

without any input from Conserv, the trailer’s owner, “allows

an insurer to conspire with its insured and its insured’s sister

entity to affix insurance coverage as to a third party.” Nation-

wide claims such an arrangement “smacks of trying to bind a

third party” insurer into paying.

This argument is equally unpersuasive because it is com-

pletely “unsupported by law.” Puffer v. Allstate Ins. Co., 675

F.3d 709, 718 (7th Cir. 2012) (explaining that such arguments

14 Nos. 24-1258 & 24-1259

may be considered waived). There is no record evidence to

support Nationwide’s bare assertion that Deerpass Farms,

Deerpass Trucking, and Great West conspired to author the

Deerpass Lease such that Great West’s coverage would be ex-

cess in this specific context. Nationwide provides no proof

that this occurred, that such activity would even be illegal un-

der Illinois contract law, or that Illinois courts would apply

their equitable powers to intervene in such a scenario. With-

out more guidance, we cannot accept Nationwide’s argu-

ment.

2. Paragraph 5.g

Nationwide also points to paragraph 5.g, contending that,

regardless of paragraph 5.b, Great West’s coverage is primary

if an “insured contract” is involved:

g. Regardless of the provisions of Paragraphs a., b., c.,

d. and e. above, this Coverage Form’s Covered Au-

tos Liability Coverage is primary for any liability

assumed under an “insured contract.”

An “insured contract” under the Great West policy ex-

tends to the “part of any other contract … under which you

assume the tort liability of another to pay for ‘bodily injury’

or ‘property damage’ to a third party or organization.”

The district court determined paragraph 5.g did not apply

because Deerpass Trucking agreed to indemnify Conserv for

claims arising from Deerpass Trucking. Nationwide resists

this interpretation. According to Nationwide, the Interchange

Agreement between Great West’s policyholder, Deerpass

Trucking, and the trailer owner, Conserv, is an “insured con-

tract” because Deerpass Trucking agreed to assume Con-

serv’s tort liability. As such, Deerpass Trucking’s insurer

Nos. 24-1258 & 24-1259 15

owes primary coverage, while Conserv’s insurer—Nation-

wide—owes only excess coverage because Deerpass Trucking

agreed to assume Conserv’s tort liability. If Nationwide is cor-

rect, Great West’s policy becomes the primary policy for cov-

erage purposes.

The indemnity provision of the Interchange Agreement

states in relevant part:

Except to the proportionate extent that any Losses

are caused by the negligent acts or omissions of [Con-

serv], [Deerpass Trucking] hereby releases and

agrees to indemnify, defend and hold harmless

[Conserv] and its parent and corporate affili-

ates, and their respective officers, directors, in-

surers, agents, and employees from and against

any and all claims, lawsuits, causes of action,

judgments, expenses, fines, cost, losses, penal-

ties, damages, liabilities and reasonable attor-

neys’ fees for bodily injury (including injury re-

sulting in death) and the loss of or damage to

property (collectively, “Losses”) arising out of

or related to [Deerpass Trucking’s] use, opera-

tion, maintenance, possession, or Interchange of

[Conserv’s] Equipment.

Great West counters Nationwide’s interpretation by

pointing to the first clause of the indemnity provision as evi-

dence that the Interchange Agreement is not an “insured con-

tract.” Great West highlights that an “insured contract” re-

quires one party to “assume the tort liability of another,” and

that the indemnity provision specifically carves out liability

arising from Conserv’s own negligence. According to Great

West, Deerpass Trucking is not assuming Conserv’s tort

16 Nos. 24-1258 & 24-1259

liability, but rather agreeing to indemnify Conserv for

Deerpass Trucking’s own tort liability.

For support, Great West relies on Hankins v. Pekin Insur-

ance Co., 713 N.E.2d 1244 (Ill. App. Ct. 1999). That case con-

cerned an indemnity provision in which the operator of a

trucking terminal agreed to indemnify a motor freight carrier

for liability arising out of “any work to be performed hereun-

der by [the operator]” or “caused in whole or in part by [the

operator’s] negligent act or omission.” Id. at 1246. The defini-

tion of an insured contract in that case also required one party

to “assume the tort liability of another.” Id. at 1246–47. The

Illinois Appellate Court decided that the indemnity provision

did not count as an “insured contract” because the indemnity

provision did not “clearly, explicitly, and unequivocally ex-

press the parties’ intention that [the operator] would indem-

nify [the carrier] against [the carrier’s] own negligence.” Id. at

1248. The actual claims at issue in the underlying litigation

did not matter—only the carveout language in the indemnity

provision itself mattered most. Id. at 1247–49.

We agree with Great West’s position. The Interchange

Agreement plainly and explicitly carves out, from Deerpass

Trucking’s indemnification obligations, any proportion of li-

ability “caused by the negligent acts or omissions of [Con-

serv].”

It may be true, as Nationwide points out, that the claims

against Conserv in the underlying wrongful death litigation

are “solely based upon the conduct of [Deerpass Trucking]

and its agent, Robert Fisher,” and “not any independent ac-

tion of Conserv.” We do not see how that is relevant. For con-

struction purposes, the indemnity provision eliminates any

indemnification for Conserv’s own negligence. Whether or

Nos. 24-1258 & 24-1259 17

not there is any such negligence to carve out is irrelevant to

determining whether the Interchange Agreement is an “in-

sured contract.” Because the Interchange Agreement does not

“clearly, explicitly, and unequivocally express the parties’ in-

tention that [Deerpass Trucking] would indemnify [Conserv]

against [Conserv’s] own negligence,” it does not qualify as an

“insured contract” within the meaning of the Great West pol-

icy. See Hankins, 713 N.E.2d at 1248. This embraces the Illinois

Supreme Court’s instruction that “when an indemnity con-

tract expressly limits itself to the negligence of the indemni-

tor, courts will not strain[] … to read into that contract indem-

nification for an indemnitee's own negligence.” Buenz v.

Frontline Transp. Co., 882 N.E.2d 525, 533 (Ill. 2008) (citing

Hankins); see id. at 533–35 (examining indemnification provi-

sion without an explicit carveout for the indemnitee’s own

negligence).

Since we are applying Illinois law, we will not strain any

further than Illinois courts would. We conclude, like the dis-

trict court did, that the Interchange Agreement is not an in-

sured contract within the meaning of paragraph 5.g of Great

West’s “Other Insurance” provision. That means paragraph

5.g does not override paragraph 5.b(2), which makes Great

West’s coverage excess. We therefore affirm the district

court’s determination that both Nationwide and Great West

owe excess coverage.

D. Great West’s Coverage is Not “Excess Over” Nation-

wide

Turning now to Great West’s cross appeal. So far, we have

dealt with two levels of insurance coverage priority: primary

and excess. Great West posits the existence of a third priority

18 Nos. 24-1258 & 24-1259

level—“super excess”—which it claims renders its policy

even more excess than Nationwide’s policy.

Great West claims its policy is “super excess” because the

applicable portion of the “Other Insurance” provision, para-

graph 5.b(2), specifies that Great West’s coverage is “[e]xcess

over any other collectible insurance.” By contrast, the relevant

part of Nationwide’s “Other Insurance” provision ends at

“excess.” The parties concede that “excess over any other col-

lectible insurance” is a commonly used phrase in motor car-

rier policies. Indeed, other parts of Nationwide’s policy use

the phrase, too. Commonality aside, Great West claims its pol-

icy must be deemed “super excess” over Nationwide’s policy

because there are slight differences. 4

Great West relies most heavily on Truck Insurance Exchange

v. Liberty Mutual Insurance Co., 428 N.E.2d 1183 (Ill. App. Ct.

1981), as evidence that Illinois courts give effect to the phrase

“excess over any other collectible insurance.” 5 The district

court rejected Great West’s “super excess” argument and its

reliance on Truck Insurance Exchange because the language in

each policy is functionally the same and cancels each other

out. And as Nationwide properly noted, Truck Insurance Ex-

change is readily distinguishable. In that case, the Illinois Ap-

pellate Court considered payment priority between a

4 Oral Argument at 18:30.

5 Great West cites several cases in which courts gave special effect to sim-

ilar phrases but, as Nationwide points out, none of the cases involved a

comparison between “excess” coverage and coverage that is “excess over

any other collectible insurance.” E.g., New Amsterdam Cas. Co. v. Certain

Underwriters at Lloyds, London, 216 N.E.2d 665, 665–68 (Ill. 1966); U.S. Fire

Ins. Co. v. Wilson Driveaway, Inc., 674 F. Supp. 640, 642 (N.D. Ill. 1987).

(App. Dkt. 20 at 10–11); (App. Dkt. 25 at 12–13).

Nos. 24-1258 & 24-1259 19

standard form policy with the disclaimer provision, “excess

insurance over such other insurance” and a second policy

with the disclaimer phrase, “excess insurance over any other

valid and collectible insurance.” Id. at 1184–85. The court con-

cluded the first policy was excess to the second, a finding that

did not depend on “super excess” language. Id. at 1185. In-

stead, the court looked at the terms of the lease between the

two policyholders. Id. at 1184–85. Because the policyholders

had already agreed upon insurance payment priority in the

lease, and the appellant insurer had agreed to offer coverage

subject to the lease, the lease controlled. Id.

We agree with the district court and Nationwide that the

facts of Truck Insurance Exchange are markedly different from

the facts here, where there is no comparable lease that inde-

pendently establishes the insurers’ priority of coverage. With-

out a direct response and no analogous cases for support,

Great West falls back on contract interpretation principles to

argue that construing Nationwide’s “excess” language and

Great West’s “super excess” language identically ignores the

Illinois Supreme Court’s admonition against constructions

that “render any language superfluous.” Clanton, 226 N.E.3d

at 1275. As we explained above, however, the rule against su-

perfluous language is “not absolute.” Stone, 943 F.3d at 387–

88. “[I]t is a preference to be employed to the extent possible.”

Id. at 388; see also id. (noting that party’s “superfluity argu-

ment at best cuts both ways”); Land of Lincoln, 762 F.3d at 679;

Outboard Marine Corp. v. Liberty Mut. Ins. Co., 607 N.E.2d 1204,

1219 (Ill. 1992) (rule applies unless it “would render the clause

or policy inconsistent or inherently contradictory”). Indeed,

we have recognized that superfluous terms may appear in

contracts because contract drafters “intentionally err on the

20 Nos. 24-1258 & 24-1259

side of redundancy.” Sterling Nat’l Bank v. Block, 984 F.3d 1210,

1218 (7th Cir. 2021) (citation and quotation omitted).

Considering this, we are persuaded that the “super ex-

cess” language in Great West’s policy is merely an example of

redundancy in contract drafting and not a command to recog-

nize a never-before-seen “super excess” tier of insurance cov-

erage. As Great West’s counsel volunteered at oral argument,

its claim that “all excess clauses are excess, but some are more

excess than others” is, rhetorically speaking, somewhat Or-

wellian. See George Orwell, ANIMAL FARM 112 (1946) (“All an-

imals are equal. But some animals are more equal than oth-

ers.”). 6 If Great West is correct, then simply claiming that

one’s coverage is “excess over any other collectible insurance”

makes it so. Such a holding would lead insurers to update

their policies to replace each instance of “excess” coverage

with “super excess” coverage. Then what? Will Great West be

back in court in a few years claiming that its coverage is dou-

ble-, triple-, or even quadruple-“super excess”? We are re-

minded of the double-, triple-, and quadruple-dog dares chil-

dren wield on the playground. Powerful rhetorically, but

dares are of questionable legal force.

Even if we accepted Great West’s argument, the “super ex-

cess” tier of coverage would render other parts of its policy

difficult to understand. See Stone, 943 F.3d at 388. For example,

paragraph 5.h contemplates the possibility that a court will

determine whether Great West’s policy “covers on the same

basis, either excess or primary” as another insurance policy.

That paragraph accounts for only two possible coverage ba-

ses—primary or excess—and does not even mention a “super

6 Oral Argument at 19:30.

Nos. 24-1258 & 24-1259 21

excess” tier, even though Great West has argued that “super

excess” language is common in the industry and routinely

given effect by the courts. Though Great West arguably had

the power to fortify its policy with “super excess” wording, it

chose not to do so in paragraphs 5.c and 5.e, which also dis-

tinguishes only between primary and excess coverage. On the

other hand, when “excess” and “excess over all other collect-

ible insurance” are viewed interchangeably, as we have inter-

preted it, Great West’s policy becomes far less “inconsistent”

and “inherently contradictory.” Outboard Marine Corp., 607

N.E.2d at 1219.

Fundamentally, insurance law and contract law are mat-

ters of state law. Stampley v. Altom Transp., Inc., 958 F.3d 580,

586 (7th Cir. 2020). As a federal court sitting in diversity, our

job is to apply Illinois law the way we think Illinois courts

would apply it. Hess, 105 F.4th at 917. Great West has not per-

suaded us that Illinois courts would recognize a “super ex-

cess” level of liability insurance coverage, especially given the

vacuum of evidence any other court has done so. We there-

fore decline Great West’s invitation to do so here. Like the dis-

trict court, we conclude that Great West and Nationwide have

equal payment priority and must pay the amount proportion-

ate to their respective coverage limits.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment.