I concur with the result and the reasoning behind Chief Justice Williams’ findings that in this case the excess insurer’s cause of action against the primary insurer is as equitable subrogee of the insured and that there is no direct duty between the primary and excess insurers. I write separately to state further that, contrary to the assertion in footnote 5 of Chief Justice Williams’ opinion, I find no convincing legal precedent or reasoning and no policy considerations which would lead me to determine that such an expansion of traditional tort doctrine is appropriate in these circumstances. As the opinion astutely states:
[T]he insured and the excess insurer share an ongoing contractual relationship as parties to their own contract. The excess insurer can bargain for any obligation it seeks to impose upon its insured.
I further agree that summary disposition was improper because "material issues of fact exist as to whether mp acted in good faith, whether mp reasonably relied on cu’s participation in the final settlement, and whether the insured failed to cooperate.”
Levin, Brickley, and Riley, JJ., concurred with Boyle, J.