CARPENTER TECHNOLOGY CORPORATION, PLAINTIFF-RESPONDENT, v. ADMIRAL INSURANCE COMPANY; AETNA CASUALTY AND SURETY COMPANY; ALLSTATE INSURANCE COMPANY (AS SUCCESSOR IN INTEREST TO NORTHBROOK INSURANCE COMPANY); AMERICAN INSURANCE COMPANY; HIGHLANDS INSURANCE COMPANY; INSURANCE COMPANY OF NORTH AMERICA; INTERNATIONAL INSURANCE COMPANY; LEXINGTON INSURANCE COMPANY; PACIFIC EMPLOYERS INSURANCE COMPANY; PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION; UNITED STATES FIRE INSURANCE COMPANY; EXECUTIVE RE INDEMNITY, INC.; ALLIANZ INSURANCE COMPANY; FIRST STATE INSURANCE COMPANY; ASSOCIATED INTERNATIONAL INSURANCE COMPANY; INDEMNITY INSURANCE COMPANY OF NORTH AMERICA; UNDERWRITERS AT LLOYD‘S, LONDON; AND LONDON MARKET COMPANIES, INCLUDING: DOMINION INSURANCE COMPANY; EXCESS INSURANCE COMPANY; HIGHLANDS INSURANCE COMPANY; LONDON & EDINBURGH GENERAL INSURANCE COMPANY LIMITED; STRONGHOLD INSURANCE COMPANY LIMITED AND TUREGUM INSURANCE COMPANY, DEFENDANTS, NEW JERSEY PROPERTY-LIABILITY INSURANCE GUARANTY ASSOCIATION, DEFENDANT-APPELLANT.
Supreme Court of New Jersey
Argued September 24, 2001—Decided June 17, 2002.
800 A.2d 54 | 172 N.J. 504
CARPENTER TECHNOLOGY CORPORATION, PLAINTIFF-RESPONDENT, v. ADMIRAL INSURANCE COMPANY; AETNA CASUALTY AND SURETY COMPANY; ALLSTATE INSURANCE COMPANY (AS SUCCESSOR IN INTEREST TO NORTHBROOK INSURANCE COMPANY); AMERICAN INSURANCE COMPANY; HIGHLANDS INSURANCE COMPANY; INSURANCE COMPANY OF NORTH AMERICA; INTERNATIONAL INSURANCE COMPANY; LEXINGTON INSURANCE COMPANY; PACIFIC EMPLOYERS INSURANCE COMPANY; PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION; UNITED STATES FIRE INSURANCE COMPANY; EXECUTIVE RE INDEMNITY, INC.; ALLIANZ INSURANCE COMPANY; FIRST STATE INSURANCE COMPANY; ASSOCIATED INTERNATIONAL INSURANCE COMPANY; INDEMNITY INSURANCE COMPANY OF NORTH AMERICA; UNDERWRITERS AT LLOYD‘S, LONDON; AND LONDON MARKET COMPANIES, INCLUDING: DOMINION INSURANCE COMPANY; EXCESS
Argued September 24, 2001—Decided June 17, 2002.
Steven E. Speece, a member of the Pennsylvania bar, argued the cause for respondent (Brown & Connery, attorneys; Mr. Speece and Michael J. Vassalotti, on the briefs).
Paul G. Witko, Deputy Attorney General, argued the cause for amicus curiae, Commissioner of Banking and Insurance (John J. Farmer, Jr., Attorney General of New Jersey, attorney; Patrick DeAlmeida, Assistant Attorney General, on the brief).
The opinion of the Court was delivered by
ZAZZALI, J.
The State of New Jersey and the United States identified Carpenter Technology Corporation (Carpenter), a corporation with its principal place of business in Pennsylvania, as a potentially responsible party (PRP) for environmental contamination at four sites in New Jersey. In response, Carpenter commenced a declaratory judgment action in which it sought a declaration of coverage for the claims under multiple insurance policies issued by
PPCIGA is the primarily-liable guaranty association because any entity that may recover from more than one insurance guaranty association shall seek recovery first from the association of the residence of the insured.
I
In 1974, our Legislature enacted the New Jersey Property-Liability Insurance Guaranty Association Act,
In 1994, the New Jersey Department of Environmental Protection (NJDEP) and the United States Environmental Protection Agency (EPA) identified Carpenter, incorporated under the laws of Delaware with its principal place of business in Pennsylvania, as a PRP for property damage and environmental contamination at four sites in New Jersey, two sites in Pennsylvania, and one site in Maryland. At the time Carpenter filed its declaratory judgment action, Carpenter manufactured specialty steel products and operated manufacturing plants in Pennsylvania and New Jersey. According to Carpenter‘s complaint, the property damage at the four New Jersey sites was due to either the treatment or recycling of manufacturing by-products, or in the case of one site where Carpenter operated an underground facility for storing solvents, the damage resulted from the leakage of chemicals such as Trichloroethylene (TCE). TCE is commonly used in manufacturing to degrease machine parts. Toxicological Profile for Trichloroethylene. U.S. Public Health Service, U.S. Dep‘t of Health and Human Servs., Atlanta, GA 1993. TCE is “between a probable and possible human carcinogen.” U.S. Environmental Protection Agency, 63 FR 34338 (June 24, 1998).
Carpenter maintained primary umbrella and excess comprehensive general liability insurance to cover liabilities resulting from its manufacturing operations. Under the terms of the policies, each insurer agreed to defend and indemnify Carpenter for all liabilities to third parties. The policies covered claims brought by state and federal agencies for environmental damage that Carpenter caused by discharging waste materials and by-products into the environment.
Like NJPLIGA, PPCIGA is a property-liability insurance guaranty association created by Pennsylvania statute to provide limited relief to policyholders and claimants in the event of insurance
In 1993, Carpenter filed a complaint seeking declaratory relief requiring its insurers to defend Carpenter in any litigation and to indemnify Carpenter for all past, present or future losses and expenses in accordance with the liability coverage for environmental clean-up and remediation of the four New Jersey sites. As discussed, at the time Carpenter filed suit, three of Carpenter‘s insurers were insolvent. Accordingly, Carpenter sought statutory benefits from PPCIGA and NJPLIGA pursuant to
The trial court granted partial summary judgment to NJPLIGA and determined that PPCIGA was the primary payor in respect of the four New Jersey sites. The court noted that because Carpenter‘s corporate residence was in Pennsylvania, Carpenter was not a New Jersey policyholder. The court also found that the premiums Carpenter paid to the insolvent insurers were used to calculate the assessments paid to PPCIGA and not NJPLIGA. Accordingly, NJPLIGA‘s liability to Carpenter, if any, would be secondary. Carpenter does not challenge that determination.
The parties engaged in settlement negotiations. NJPLIGA participated in but later withdrew from those negotiations. In 1997, Carpenter settled with PPCIGA. NJPLIGA subsequently moved for summary judgment seeking an order permitting it to set off the maximum statutory claim payable by PPCIGA against its liability to Carpenter on each “covered claim.” The trial court granted the motion and ruled that NJPLIGA was entitled to a credit for each “covered claim” equal to PPCIGA‘s maximum statutory limit ($299,900). The court held that NJPLIGA‘s maximum “per covered claim” obligation to Carpenter was $300,000, less a credit for PPCIGA‘s $299,900 statutory limit, that is, $100 per claim. Subsequently, the trial court held that Carpenter was entitled to relief on sixty-five “covered claims.” Consequently, the trial court entered judgment in favor of Carpenter against NJPLIGA in the amount of $6,500.
The Appellate Division affirmed in part and reversed in part. Carpenter Tech. Corp. v. Admiral Ins. Co., 335 N.J.Super. 510, 517, 762 A.2d 1066 (2000). The court held that NJPLIGA is entitled to a credit only for the amounts actually received by Carpenter from PPCIGA. Id. at 516, 762 A.2d 1066. Because the settlement amount did not appear in the record, the court remanded the matter for a determination of the proper credit. Ibid. The Appellate Division also affirmed the trial court‘s determination of the number of “covered claims.” Id. at 517, 762 A.2d 1066.
We granted certification, 167 N.J. 633, 772 A.2d 935 (2001), on the issue of the amount of credit to which NJPLIGA is entitled.
II
The narrow issue in this appeal is whether Section 12a of the Act entitles NJPLIGA to a credit equal to the statutory maximum payable by PPCIGA or merely to a credit for the amount Carpenter actually recovered from PPCIGA.
A
a. Any person having a covered claim which may be recovered from more than one insurance guaranty association or its equivalent shall seek recovery first from the association of the place of residence of the insured at the time of the insured event except that if it is a first party claim for damage to property with a permanent location, he [or she] shall seek recovery first from the association of the location of the property. Any recovery under this act shall be reduced by the amount of recovery from any other insurance guaranty association or its equivalent. However, if recovery is denied or deferred by the association, a person may proceed to recover from any other insurance guaranty association or its equivalent from which recovery may be legally sought.
b. Any person having a claim against an insurer, whether or not the insurer is a member insurer, under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required to exhaust first his [or her] right under that other policy. An amount payable on a covered claim under P.L.1974, c. 17 (C. 17:30A-1 et seq.) shall be reduced by the amount of recovery under any such insurance policy.
[(Emphasis added).]
As a general rule, “[a] statute should be interpreted in accordance with its plain meaning if it is clear and unambiguous on its face and admits of only one interpretation.” Franklin Tower One v. N.M., 157 N.J. 602, 613, 725 A.2d 1104 (1999). “A statute‘s meaning is not self-evident, however, where varying interpretations of the statute are plausible.” Bergen Commercial Bank v. Sisler, 157 N.J. 188, 202, 723 A.2d 944 (1999) (citation omitted). Moreover, “[w]here a literal reading will lead to a result not in accord with the essential purpose and design of the act, the spirit
A simple reading of Section 12a demonstrates that its meaning is not plain. The first sentence states that a claimant “shall seek recovery first from the association of the place of residence of the insured.”
Stated differently, the statute read as a whole, particularly the initial sentence of Section 12a, establishes a principle of primary liability whereby the guaranty association located in the state of the insured‘s corporate residence is primarily liable. Residence is
The Supreme Court of Nevada, construing similar language in the Nevada guaranty association act, observed that the term “shall be reduced by the amount of recovery” is “neither a model of clarity nor an exemplar of the draftsman‘s craft.” Cimini v. Nevada Ins. Guar. Ass‘n, 112 Nev. 442, 915 P.2d 279, 282 (Nev. 1996). The Cimini court quoted the Arizona Supreme Court in Arizona Property & Casualty Insurance Guaranty Fund v. Herder, 156 Ariz. 203, 751 P.2d 519, 523 (Ariz.1988), wherein the Arizona court found ambiguous the phrase “[a]ny amount payable on a covered claim shall be reduced by the amount of such recovery under other applicable insurance” in Arizona‘s insurance guaranty association act. (Emphasis added).
Because different interpretations of the statute are arguable, we are obligated to look beyond its language, to discover the “spirit of the law.” Storch v. Sauerhoff, 334 N.J.Super. 226, 229, 757 A.2d 836 (Ch.Div.2000) (citing Ochoa, supra, 314 N.J.Super. at 172, 714 A.2d 349).
B
Mindful of our duty to discern the legislative intent, we examine the Act‘s goals. The Act was created to “avoid financial loss to claimants or policyholders because of the insolvency of insurance companies.” See Senate Bill Statement, S. 1004, c. 17 (April 11, 1974). Thus, the Act‘s function is twofold: to avoid “excessive delay,” and to avoid “financial loss to claimants or policyholders.”
The principle of primary liability as set forth in Section 12a tracks the language of the Post-Assessment Property and Liability Insurance Guaranty Association Model Act (Model Act) drafted by the National Association of Insurance Commissioners (NAIC). A significant majority of states, including New Jersey and Pennsylvania, has passed some version of the Model Act containing the provision at issue in the present case. NAIC‘s purpose in passing the Model Act was to “minimize financial loss to claimants or policyholders because of the insolvency of an insurer.” Post-Assessment Prop. & Liab. Ins. Guar. Assoc. Model Act, reprinted in NAIC Model Laws, Regulations and Guidelines, at 540-1, § 2 (1995).
In passing New Jersey‘s Act, the Legislature sought to bring our State within a nationwide network of individual insurance guaranty association statutes designed to spread equitably the risk of insurer insolvency among the states. See generally American Employers’ Insurance Co. v. Elf Atochem North America, Inc., 157 N.J. 580, 598, 725 A.2d 1093 (1999); T.B. Ridgley, Interstate Conflicts and Cooperation, Law and Practice of Insurance Company Insolvency at 528 (1986). The network “should result in [an] as equitable as possible allocation of the inevitable loss where ‘everyone makes some concessions to the common necessity and no one suffers too much.‘” See Christopher J. Wilcox, The U.S. Guaranty Association Concept at 25: A Quarter Century Assessment, 14 J. Ins. Reg. 370, 399 (1999) (citing The Committee Comment to Wisconsin Statute Chapter 645, at 377-78 (1967)) (emphasis added).
However, the legislative desire to assist claimants cannot be, and is not intended to be, bureaucratic benevolence. The Legislature did not give NJPLIGA unfettered discretion to accommodate all claimants for any claims. The conservation of resources is a major goal. The Legislature signaled the need for restraint and caution in the payment of claims, and did so in a
This Court has recognized the legislative intent that conservation of NJPLIGA‘s resources is necessary to achieve the Act‘s stated goals. In American Employers’, supra, at issue was whether the defendant was a New Jersey resident at the time of the insured event. 157 N.J. at 590, 725 A.2d 1093. In holding that the defendant was not a New Jersey resident under the Act, we noted that “an overly broad definition of ‘resident’ might place New Jersey at a disadvantage compared to other states” by allowing other states to escape responsibility for covered claims. Id. at 594, 725 A.2d 1093 (emphasis added). We emphasized that “[a]lthough the scope of relief under the Act is to be construed liberally to effect its purposes [citation omitted], clearly one
We now consider caselaw relevant to our analysis of Section 12a.
C
UMC/Stamford, Inc. v. Allianz Underwriters Insurance Co., 276 N.J.Super. 52, 647 A.2d 182 (Law Div.1994), addressed whether an excess insurer was entitled to a credit for the amount actually paid by the primary insurer or for the limits of the primary insurers’ policies. There, the plaintiff sought coverage for environmental pollution claims under primary and excess insurance policies. After the plaintiff settled with the primary insurers, a nonsettling insurer moved for disclosure of the settlement agreement. Id. at 56, 647 A.2d 182. In holding that the nonsettling insurer could not compel disclosure of the settlement terms, the court reasoned:
[A]n excess carrier is entitled to a credit, not from the primary carrier‘s settlement, but from the amount allocable to the primary under its policies. In other words, the excess carrier is entitled to a credit for the full amount of the primary carrier‘s coverage before it is required to pay any cleanup expense.
[Id. at 69, 647 A.2d 182 (emphasis added).]
The Third Circuit cited UMC with approval in Chemical Leaman Tank Lines, Inc. v. Aetna Casualty & Surety Company, 177 F.3d 210 (3d Cir.1999). In that case, the plaintiffs instituted an action against the defendant insurance company seeking a declaratory judgment requiring that the defendant indemnify the plaintiffs for environmental cleanup costs. Id. at 214. Specifically, the plaintiffs contended that because they had settled with their primary liability carriers for less than their policy limits, the excess liability insurer should not have been granted a credit equal to the amount of the relevant policy limits. Id. at 226. Accordingly, the plaintiffs argued that the excess liability carrier was entitled to a credit for only the amount of settlement between the plaintiffs and the primary carrier. Id. at 226-27. In holding that
[T]he UMC approach tracks “a widely followed corollary to the doctrine that a settlement with a primary insurer exhausts the primary coverage.” Under this approach, the insured forfeits any right to coverage of any dollar difference between the settlement amount and the primary insurer‘s policy limits. The excess insurer cannot be made liable for any part of this difference because the excess insurer never agreed to pay for losses below a specified floor.... This rule prevents the insured from securing a double recovery.
[Id. at 227.]
See also Koppers Co. v. Aetna Cas. & Sur. Co., 98 F.3d 1440 (3d Cir.1996) (stating that settlement between insured and primary insurer will automatically permit excess insurer to credit equal to primary insurer‘s policy limit) (citing Barry R. Ostrager & Thomas R. Newman, Handbook on Insurance Coverage Disputes § 13.04, at 575-77 (7th ed.1994)). But see McMahon v. Caravan Refrigerated Cargo, 406 Pa.Super. 303, 594 A.2d 349 (Pa.Sup.Ct. 1991), alloc. denied, 529 Pa. 621, 600 A.2d 538 (1991) (holding that the plaintiff-claimant was not required to obtain a final adjudication of his claim against another guaranty association before recovering from PPCIGA). McMahon, in interpreting an analogous provision of Pennsylvania‘s insurance guaranty act, determined that because the plaintiff‘s claim had been denied by the guaranty association of the insured‘s residence (Texas), the plaintiff had satisfied his requirement to “exhaust first his right of recovery from the association of the place of residence of the insured.”
D
A few jurisdictions have decided questions pertaining to insurance guaranty associations. Although the facts in those cases are not analogous to the facts in this appeal, and therefore provide only limited guidance, they are useful in our analysis. Specifically,
For example, in Mosier v. Oklahoma Property and Casualty Insurance Guaranty Ass‘n, 890 P.2d 878, 879 (Okla.1994), the plaintiff filed a products liability suit against two manufacturers. The plaintiff settled with one manufacturer for $30,000 and with the other manufacturer for $270,000. The insurer for the second manufacturer became insolvent and the $270,000 settlement remained unpaid. Under Oklahoma law the plaintiff was required to seek recovery first from the Texas Guaranty Association (TGA), the insolvent insurer‘s home state guaranty association. Ibid. At the time, the maximum recoverable amount by the plaintiff from TGA was $100,000. Id. at 879 n. 1. The plaintiff and TGA settled the claim for $75,000. Thereafter, the plaintiff filed a claim against the Oklahoma Property and Casualty Insurance Guaranty Association (OPCIGA) seeking $150,000—the maximum recoverable under Oklahoma law.
...
The Oklahoma Court of Appeals determined that OPCIGA was entitled to offset its $150,000 obligation by TGA‘s statutory limit, $100,000, rather than the amount actually received by the plaintiff from TGA, $75,000. Id. at 879. Thus, the court “held that this amount [$150,000] must be reduced by the amount ... [TGA] could have been required to pay.” Ibid. Because the TGA maximum was $100,000, OPCIGA‘s obligation “was reduced from $150,000 to $50,000.” Ibid. OPCIGA sought review by the Oklahoma Supreme Court. Plaintiff did not and therefore the court did not review the appellate court‘s holding in respect of whether OPCIGA was entitled to offset its obligation to the plaintiff by TGA‘s statutory limit or the amount actually recovered by the plaintiff.
A constant in all of the above out-of-state cases is that the secondarily-liable guaranty association was credited the maximum amount recoverable from the primarily-liable guaranty association. We thus consider those cases to support the system of primary liability intended by the national network of guaranty associations.
III
We hold that NJPLIGA is entitled to a credit equal to the statutory maximum amount payable by PPCIGA. Our decision comports with the Legislature‘s intent to enroll New Jersey in a national network of insurance guaranty associations designed to spread equitably the risk of insurer insolvency; our public policy favoring the protection of New Jersey insurance policy holders that fund NJPLIGA; the need to prevent claimants from bypass-
A
We find persuasive NJPLIGA‘s argument that “[i]f a foreign corporation guaranty association and claimant can unilaterally decide the payment, if any, to be made by the primarily obligated guaranty association, then the mandate to seek recovery first from the state of residence is subject to quick deals and cheap settlements, and is truly inoperable.” (Emphasis added). The “plain meaning,” if applied literally, can lead to absurd results. “[W]here a literal interpretation would create a manifestly absurd result, contrary to public policy, the spirit of the law should control.” Turner v. First Union Nat. Bank, 162 N.J. 75, 84, 740 A.2d 1081 (1999). Illustratively, an insured and a primarily-liable guaranty association in another state could settle each of the insured‘s sixty-five claims for $1000 each, transferring the remaining obligation to NJPLIGA. Given NJPLIGA‘s cap of $300,000 per claim, under Carpenter‘s theory NJPLIGA would be obligated for the differential of $299,000 per claim on each of the sixty-five claims. As Judge Learned Hand observed, “[t]here is no surer way to misread any document than to read it literally[.]” Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir.1944), aff‘d sub nom., Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921 (1945). If we were to adopt the Carpenter view, the primarily-liable guaranty association could settle for a small percentage of the claim, or even for “pennies on the dollar,” evade its obligation as the primarily-liable association, and shift that primary obligation to the secondarily-liable guaranty association. That result stands the statute on its head. Neither the Model Act nor New Jersey law intended that the primarily-liable guaranty association could forsake its obligation and transfer its responsibility to a second guaranty association. Those statutes do not contemplate a “pick and choose” policy.
Although we recognize that in UMC and the other cases cited above, supra at 515-518, 800 A.2d at 61-62 the excess insurer‘s policy with the insured contained exhaustion language, those cases are nevertheless helpful by way of analogy. Just as an excess insurer is obligated to pay only an amount above the primary insurer‘s limit, a secondarily-liable insurance guaranty association should be required to pay only an amount above the maximum recoverable from the primarily-liable guaranty association.
The dissent concludes that because Section 12a does not employ the term “exhaust,” in contrast to Section 12b, which does use “exhaust,” NJPLIGA is entitled to credit only the amount Carpenter actually received from PPCIGA for each covered claim. Post at 530, 800 A.2d at 69. “Exhaustion” is properly used in Section 12b because of the potential for solvent insurers. See Jendrzejewski v. Allstate Ins. Co., 341 N.J.Super. 460, 462, 775 A.2d 583 (App.Div.2001), certif. denied, 170 N.J. 209, 785 A.2d 437 (2001) (quoting Jendrzejewski v. Allstate Ins. Co., No. L-9374-99, slip op. at 2 (Jan. 21, 2000) (holding that PIP coverage under defendant‘s policy must be exhausted before plaintiff could recover statutory benefits from PLIGA and that PLIGA assumes obligations of insolvent insurer)). In other words, Section 12b presumes the existence of solvent insurance and imposes no obligation on the guaranty association before that solvent insurance is depleted. A parallel procedure in circumstances where Section 12a governs simply will not work because of the mutuality of obligation of each
In its discussion of exhaustion the dissent also asserts that the national network of state insurance guaranty associations establishes only the “order” in which claimants must pursue recovery. We disagree. If the dissent‘s view is taken to its logical extreme, it inexorably follows that a claimant, for reasons good or ill, can make its initial claim against the foreign association, settle for a small sum, and then demand payment from NJPLIGA for the bulk of its claim. The claimant thus reverses the order of priority and effectively makes NJPLIGA primarily liable.
We recognize that the Pennsylvania maximum ($299,900) approximates the New Jersey cap ($300,000). One may therefore contend that our result frees NJPLIGA from virtually any liability—only $6,500, as determined by the trial court. But that result is fortuitous, attributable only to the fact that the statutory maximum in each state is nearly identical.2 NJPLIGA‘s obligation would be substantially greater, if, for example, the primarily-liable guaranty association was from Colorado, whose statutory cap is $99,900,
The Appellate Division and the dissent consider the out-of-state guaranty association cases unpersuasive. See 335 N.J.Super. at 514-15, 762 A.2d 1066; post at 533-534, 800 A.2d at 71-72. However, those decisions reinforce the conclusion that the existence of a nationwide network of insurance guaranty associations is premised on a scheme of primary liability that is designed to spread equitably the risk of insurer insolvencies. The significant point to be gleaned from the arithmetical labyrinth in Mosier,
Finally, Carpenter‘s and the dissent‘s interpretation of
NJPLIGA is involved in numerous declaratory judgment actions involving foreign corporations who have elected to bring their insurance coverage lawsuits in New Jersey since it is perceived to be a policyholder friendly forum. As a result[,] NJPLIGA is repeatedly joined in litigation asserting that it bears liability to pay statutory benefits for foreign corporations, which benefits are properly payable by a primarily liable foreign insurance guaranty association.
The Act was not designed to be a panacea for all problems caused by insurance company insolvencies or to require NJPLIGA to assume all the obligations of an insolvent insurer. We agree with the Supreme Court of Montana‘s observation that the legislation creating guaranty associations “was not adopted as a form of
B
Carpenter asserted at oral argument that its interpretation of the statute is consistent with this State‘s strong public policy favoring the settlement of litigation. Although we support that policy, we cannot allow a settlement to undercut the clear legislative intent behind the Act. Carpenter was aware that NJPLIGA believed that it was entitled to a credit equal to the maximum amount payable by PPCIGA. Carpenter settled with PPCIGA and then turned to NJPLIGA to make up the difference. Carpenter assumed the risk inherent in such a settlement. In sum, nothing in the Act suggests that the Legislature intended NJPLIGA to assume liabilities resulting from environmental or any other damage caused by an out-of-state corporation when those liabilities are the primary obligation of another guaranty association that has received the benefit of assessments paid by the original insolvent insurers.
Faced as we are with both parties’ invocations of public policy, we conclude that this State‘s public policy supports NJPLIGA‘s position. Further compounding the problem, “large carrier insolvencies are becoming more and more frequent” and affect a wide range of insurers, including those providing environmental insurance. J. Ernest Hartz, State Insurance Guaranty Associations: The Time has Come to Establish Uniform Ground Rules—or Prepare for Federal Involvement in Insurance Insolvency, 22 Fall Brief 20 (1992) (cited in American Employers’, supra, 157 N.J. at 598, 725 A.2d 1093); National Conference of Insurance Guaranty Funds, 1993 Assessment and Financial Information 6-
The dissent‘s suggestion that our disposition limits the amount of monies available to remediate in-state environmental hazards does not consider the unique facts of this appeal. Although we do not know why the settlement with Pennsylvania occurred, the fact is that Carpenter settled for less than was available under Pennsylvania law. Further, the record does not inform us whether other resources are available, i.e., federal and/or state funding sources for the remediation of polluted sites. See
IV
Carpenter may not recover from NJPLIGA the difference between the amount Carpenter recovered from PPCIGA and NJPLIGA‘s maximum recovery of $300,000 per covered claim. After settling with the primarily-liable insurance guaranty association, Carpenter now insists that NJPLIGA make up the difference, a result that could expose NJPLIGA to millions of dollars in potential liability. We believe that our Legislature did not intend such a result.
Based on our interpretation of
Reversed.
I would affirm the judgment of the Appellate Division substantially for the reasons expressed in Judge Bilder‘s persuasive opinion. Carpenter Tech. Corp. v. Admiral Ins. Co., 335 N.J.Super. 510, 762 A.2d 1066 (2000). Based on a straightforward analysis, the panel determined that when the Legislature used the phrase “reduced by the amount of recovery” in
Our sole task is to look at the statute‘s words and ascribe to them their plain meaning. The Court does otherwise. It ferrets out an ambiguity that, in my view, does not exist. In so doing, the Court advances a parochial interest, and it dilutes our State‘s role in a national system designed to counteract the problems created by insolvent insurers. The irony is that, under the guise of protecting New Jersey‘s interests, the Court‘s disposition limits the amount of insurance monies available to remediate the environmental damage to four New Jersey sites. Our land and water, more so than Pennsylvania‘s, are at risk in this case. Because I do not subscribe to the Court‘s approach or to the statutory interpretation on which it is based, I respectfully dissent.
I.
I begin my analysis, as I must, by reviewing the text of the
a. Any person having a covered claim which may be recovered from more than one insurance guaranty association or its equivalent shall seek recovery first from the association of the place of residence of the insured at the time of the insured
event except that if it is a first party claim for damage to property with a permanent location, he shall seek recovery first from the association of the location of the property. Any recovery under this act shall be reduced by the amount of recovery from any other insurance guaranty association or its equivalent. However, if recovery is denied or deferred by the association, a person may proceed to recover from any other insurance guaranty association or its equivalent from which recovery may be legally sought. b. Any person having a claim against an insurer, whether or not the insurer is a member insurer, under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required to exhaust first his right under that other policy. An amount payable on a covered claim ... shall be reduced by the amount of recovery under any such insurance policy.
[
N.J.S.A. 17:30A-12 .]
In adopting that language, the Legislature declared its goal unequivocally:
The purpose of this act is to provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay [in] payment, to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers.
[
N.J.S.A. 17:30A-2a .]
The statute generally tracks the Post-Assessment Property and Liability Insurance Guaranty Model Act (Model Act), which was drafted by the National Association of Insurance Commissioners “as a means of allocating the risk of insolvent insurers equitably among the several states.” American Employers’ Ins. Co. v. Elf Atochem, 157 N.J. 580, 587, 725 A.2d 1093 (1999). As written, the statute contains two differences from the Model Act. First, it eliminates the reference to workers’ compensation. Second, the New Jersey Act provides that if a claimant is “denied or deferred” by the first guaranty association approached, the claimant “may proceed to recover from any other insurance guaranty association or its equivalent from which recovery may be legally sought.”
Against that statutory backdrop, we are called on to interpret the “amount of recovery” language found at
Equally well-established is the corollary principle that the judiciary enjoys no fiat to rewrite a plainly-written enactment of the Legislature. State v. Afanador, 134 N.J. 162, 171, 631 A.2d 946 (1993) (“Absent any explicit indications of special meanings, the words used in a statute carry their ordinary and well-understood meanings.“). Applying those standards, the Appellate Division reached the only possible conclusion regarding the meaning of “reduced by the amount of recovery.” Nothing about that phrase is unclear or ambiguous. It means that a NJPLIGA payment is to be reduced by the amount a claimant actually receives from the other guaranty association.
Unlike the majority, I do not believe that enforcement of the Act‘s literal language will lead to an absurd result. The exposure of the guaranty association of one state can be distinct from the exposure of a secondary association in a different state, based on differences in the laws of those jurisdictions and in the specific provisions of their respective statutes. Thus, I can foresee that an association of first resort could have defenses to some but not all of a claimant‘s claims, thus warranting less than the maximum allowable recovery. After a claimant has recovered from one
The majority suggests that the “seek recovery first” language in
Policy exhaustion makes complete sense when private insurance is concerned. Without question, a claimant should be required to draw on sources of insurance for which premiums have been paid before tapping into a fund guaranteed or established by the State. See Kent M. Forney, Insurer Insolvencies and Guaranty Associations, 43 Drake L.Rev. 813, 825 (1995) (“This rule is a direct outgrowth of the philosophy underlying the [Model] Act that the guaranty association is to be the ‘payer of last resort,’ and other solvent insurers are not entitled to reduce their liability because of the insolvency.“). In that regard, when the Legislature used “exhaust first” in one section of
One state, Arizona, has adopted the majority‘s interpretation. It did so, however, by legislatively amending the Model Act to provide that a claimant “shall first exhaust coverage from the [guaranty] fund of the place of residence of the insured[.]”
Similarly, I cannot agree with the majority‘s contention that the “seek recovery first” language of the Act makes the guaranty association of first resort the “primary” insurer and the remaining associations the “excess” insurers, with all of the implications of those terms. The guaranty associations of the several states do not fall into the primary-excess paradigm relative to each other because there is no exhaustion provision with respect to them. On the contrary, as noted, the secondary associations are treated as excess insurers only in connection with insurance policies other than those of an insolvent insurer. That is why the other insurance policies must be exhausted before a guaranty association can be approached. See McMahon v. Caravan Refrigerated Cargo, 406 Pa.Super. 303, 594 A.2d 349, 351 (Pa.Super.Ct.) (concluding that claimant need not obtain final adjudication of his rights against another state‘s insurance guaranty association as prerequisite to obtaining benefits from his home state‘s association), appeal denied, 529 Pa. 621, 600 A.2d 538 (1991).
If the Legislature did not intend the New Jersey association to fall into the primary-excess paradigm, then what purpose is served by having a claimant first seek recovery in a jurisdiction other than ours? The Act itself supplies the answer to that question. The Act directs a claimant to “seek recovery first from the association of the place of residence of the insured” or, in the case
Given that the Act serves as our link to a national claims system, that orderly process makes perfect sense. The Model Act establishes the same basic process. Significantly, the comment to the Model Act emphasizes that the claims process “does not prohibit recovery from more than one association, but it does describe the association to be approached first and then requires that any previous recoveries from like associations must be set off against recoveries from [another] association.” Model Act § 12 cmt. (emphasis added). The comment‘s reference to recoveries rather than to maximum statutory limits lends further support to the Appellate Division‘s holding.
The Act also fosters one of the Legislature‘s stated aims, namely, “to avoid excessive delay [in] payment[.]”
III.
The out-of-state cases cited by the majority do not, in my view, support the Court‘s disposition. In Palmer v. Montana Insurance Guaranty Ass‘n, the issue was whether the coverage limit of the secondarily-liable Montana Insurance Guaranty Association (MIGA) could be “stacked” with the limit of the primarily-liable Idaho Association. 239 Mont. 78, 779 P.2d 61, 62 (Mont.1989). The claimant had already received Idaho‘s maximum statutory benefit ($300,000), and had argued successfully in the Montana District Court that the Idaho payment should be deducted from its
The Montana Supreme Court rejected that attempt at double-recovery, stating: “The framers’ comments to this offset provision of the Model Act support our conclusion that payments from another association are offset against the $300,000 limit of MIGA‘s obligation.” Id. at 64 (emphasis added). Because the claimant in Palmer had received the statutory limit from Idaho, there was never any question about the credit to which the Montana association was entitled.
That same situation occurred in Sifers v. General Marine Catering Co., 897 F.2d 1288 (5th Cir.1990). There, the claimant received the Texas Insurance Guaranty Association‘s statutory maximum amount ($100,000), thus eliminating any question about the amount of credit to which Louisiana was entitled. Id. at 1290. Cox v. Minnesota Insurance Guaranty Ass‘n likewise involved a payment of the statutory maximum by the Florida Insurance Guaranty Association that exceeded the limits of the later-approached Minnesota Insurance Guaranty Association. 508 N.W.2d 536, 539 (Minn.Ct.App.1993). Thus, no issue regarding the meaning of “amount of recovery” was implicated in any of those cases. Lastly, in Mosier v. Oklahoma Property & Casualty Insurance Guaranty Ass‘n, the Oklahoma Court of Appeals specifically declined to express an opinion on the question that is before us in this appeal. 890 P.2d 878, 881 n. 3 (Okla.1994).
IV.
As additional policy support for its disposition, the majority hints at potential collusion between a claimant and a foreign association by which the parties could engage in “quick deals and cheap settlements[.]” Ante at 521, 800 A.2d at 64. From the injured claimant‘s perspective, such collusion seems unlikely. For example, the total amount Carpenter can recover under the re-
Moreover, if a foreign association unilaterally denies or defers coverage, the Act plainly permits a claimant to proceed against the New Jersey association regardless of the motives of the foreign association.
The Legislature was well aware of that reality when it enacted the Act. Indeed, the Act expressly authorizes our New Jersey association to “[i]nvestigate claims brought against the association and adjust, compromise, settle, and pay covered claims to the extent of the association‘s obligation[.]”
Lastly, the majority posits that “a major goal” of the statute is “[t]he conservation of resources[.]” Ante at 515, 800 A.2d at 61. The majority overstates the significance of that aspect of the Act. The overarching aim of the Act is, as the Legislature itself declared, “to avoid financial loss to claimants or policyholders because of the insolvency of an insurer[.]”
V.
In sum, the Act‘s clear goal is to protect insureds as part of a national legislative pattern established to address the inequities and hardships caused by insurance company insolvencies. Interpreting the statute to advance New Jersey‘s parochial financial interest is at odds with that objective. In the last analysis, those financial interests are overstated when one considers that our true interest in this case is to fund an environmental clean-up plan for four New Jersey sites. Because that interest is not advanced by the majority‘s approach and for the other reasons stated, I would affirm the judgment of the Appellate Division.
For reversal—Chief Justice PORITZ and Justices STEIN, COLEMAN and ZAZZALI—4.
For affirmance—Justice VERNIERO.