Simon Glairy is a seasoned figure in the insurance landscape, known for navigating the complex intersections of liability, risk assessment, and legal obligations. With years spent dissecting policy language and the nuances of carrier-to-carrier disputes, he offers a unique perspective on the procedural breakdowns that lead to federal litigation. Today, we sit down with Simon to discuss a striking case of silence in the industry: how one carrier’s refusal to acknowledge six separate tenders over a sixteen-month span has prompted a legal showdown over primary coverage and the duty to defend in a high-stakes slip-and-fall incident.
When a carrier fails to acknowledge multiple tenders over a 16-month period, what are the immediate legal and operational implications for the insurers involved?
When a carrier like Selective goes quiet after being tendered a defense six times between October 2024 and February 2026, it creates a massive procedural vacuum that forces the other insurer’s hand. For Travelers, this isn’t just a minor delay; it is a long period of uncertainty where they are left carrying the weight of a defense that, by contract, should not be theirs. The frustration in these situations is palpable because the Master Service Agreement explicitly stated that Mercer Enterprises’ insurance should be primary and non-contributory for the incident at the Walmart parking lot. When those follow-up requests go unanswered, the operational cost of managing the Pennsylvania slip-and-fall litigation continues to mount, eventually leaving the excess carrier with no choice but to seek a federal court declaration to recover their costs. It transforms a standard coverage determination into a hostile legal battle that could have been avoided with a simple acknowledgement and a review of the policy terms.
How does the specific language regarding “primary and non-contributory” coverage shape the responsibility of a carrier when a contractor is involved in a liability claim?
The phrase “primary and non-contributory” is the bedrock of risk transfer in the world of commercial contracts, especially for high-risk activities like snow and ice removal. In this specific case, Mercer Enterprises signed a Master Service Agreement promising to protect Walmart and City Facilities Management by making Selective the first line of defense for claims like the one involving the shopper who fell on March 15, 2022. Because the Selective policy included a blanket additional-insured endorsement, the legal expectation was that they would step in long before Travelers’ excess policy was even considered. It is a stark reminder that even the most ironclad contract language requires active participation; Selective’s silence does not just ignore a request, it essentially denies the “primary” status that was promised to the additional insureds. This forced Travelers to step into the gap for an incident that allegedly stemmed from negligence on ice, a financial burden they are now fighting to shift back to where it belongs.
In the context of the Pennsylvania slip-and-fall case, what does the transition from a standard tender to a federal lawsuit suggest about the current state of carrier communication?
Moving from a series of ignored emails and letters to a federal lawsuit filed on July 20, 2026, signals a total breakdown in the professional courtesy usually expected between major carriers. When Travelers realizes that multiple tenders have been met with nothing but a void, the shift to litigation is a calculated move to stop the financial bleeding and force Selective to honor its obligations. This case highlights a growing tension where the cost of silence becomes more expensive than the underlying claim itself, as Travelers is now asking the court for full repayment of costs and a formal declaration of Selective’s duty to indemnify. It is a heavy-handed but necessary response to a situation where a shopper’s injury has spiraled into a multi-year jurisdictional fight over who pays the bill. We are seeing more of these “silence-to-suit” pipelines because the sheer volume of claims can sometimes lead to administrative paralysis if the right systems aren’t in place to handle incoming tenders.
What is your forecast for how courts will treat these types of non-responsive carriers in future “primary versus excess” disputes?
I predict that courts will become increasingly less tolerant of “silent” insurers, likely imposing stricter deadlines for responding to tenders to prevent this kind of administrative gridlock. If a judge rules in favor of Travelers, it sends a chilling message to every claims team that failing to respond to six tenders over 16 months is a fast track to being ordered to pay not only the defense costs but potentially the other carrier’s legal fees. We will likely see a push for more automated tracking of “primary and non-contributory” triggers to ensure that when a contract like Mercer’s is in place, the transition of risk is seamless rather than litigious. The industry cannot afford the friction of two carriers fighting over a slip-and-fall while the actual personal injury case remains pending and unresolved in state court. Ultimately, the price of silence will become too high to ignore, leading to a more aggressive enforcement of tender timelines across the board.
