When an entity agrees to indemnify the other party to the underlying transaction has a liability of greater primacy than an independent insurer that insures against loss can be held liable to an insurer because (1) the defendant was alleged to have caused the loss; (2) the defendant expressly promised to indemnify (not just to obtain insurance) in a contract related to the project from which the underlying loss occurred; and (3) the insurer’s receipt of premiums did not preclude it from being equitably superior to a party that contractually agreed to indemnify.
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