247 Conn. 442 | Conn. | 1999
Opinion
The principal issue in this appeal is whether the intervening plaintiff, Metropolitan District Commission (Metropolitan), as a self-insurer under the Workers’ Compensation Act; General Statutes § 31-275 et seq.; is an “insurer” under General Statutes § 38a-838 (6),
The record discloses the following facts and procedural history. On or about June 13, 1989, during the course of his employment, the plaintiff, Gerald Doucette, Jr., was a passenger in a truck operated by Frank Palmer when the truck was involved in an accident with a motor vehicle operated by the named defendant, Tamara J. Pomes, and owned by the defendant Askel Jensen, Pomes’ father. As a result of the accident, Doucette sustained personal injuries and thereafter instituted an action, against Pomes and Jensen, pursuant to General Statutes § 31-293,
Doucette also notified his employer, Metropolitan, of the accident. Because Doucette was injured during the course of his employment, Metropolitan, which had chosen to meet its statutory workers’ compensation coverage obligation through self-insurance,
At the time of the accident, Pomes and Jensen carried liability insurance coverage through American Universal Insurance Company (American), which subsequently was determined to be insolvent. Consequently, pursuant to General Statutes § 38a-841
Pomes and Jensen responded to Metropolitan’s intervening complaint by asserting as a special defense that Metropolitan is an insurer within the meaning of the guaranty act and is therefore precluded from recovering from the association because § 38a-838 (6) excludes from “covered claims” “any amount due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise . . . ,”
The defendants raise several issues on appeal. First, they claim that Metropolitan, as a self-insurer, is an insurer for purposes of the guaranty act and, therefore, is precluded from recovering from the association pursuant to § 38a-838 (6). Second, the defendants contend that, even if Metropolitan is not an insurer under the guaranty act, any recovery it obtains from the defendants should be reduced by the limits of Doucette’s uninsured motorist policy because Doucette failed to exhaust the policy limits, as required by General Statutes § 38a-845. Third, the defendants claim that any recovery by Metropolitan should be reduced by the amount of workers’ compensation benefits received by Doucette or the amount of uninsured motorist benefits he received from his insurance company. Finally, Pomes and Jensen claim that any recovery Metropolitan obtains must be reduced by any amounts Shelby paid to Doucette. We disagree with the defendants.
Before turning to the merits of the case, we set forth the well established standard of review for a denial of summary judgment. “Summary judgment ‘shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Home Ins. Co. v.
I
The defendants’ first claim, that Metropolitan’s status as self-insurer of its employees’ workers’ compensation claims renders it an insurer for purposes of the guaranty act, raises an issue of first impression for this court.
The defendants argue that, as a self-insurer, Metropolitan is barred from recovering from the association. Before addressing the merits of this claim, we discuss briefly the association itself. “The association was established for the purpose of providing a limited form of protection for policyholders and claimants in the event of insurer insolvency. The protection it provides is limited based upon its status as a nonprofit entity and the method by which it is funded. Specifically, the association is a nonprofit legal entity created by statute to which all persons licensed to transact insurance in the state must belong. See General Statutes §§ 38a-838 (8) and 38a-839. When an insurer is determined to be insolvent under § 38a-838 (7), the association becomes obligated pursuant to § 38a-841, to the extent of covered claims within certain limits.” Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 451, 705 A.2d 1012 (1997). The amounts paid to claimants are funded by assessments made on “member insurers”; General Statutes § 38a-841;
“Pursuant to ... § 38a-841, the association is authorized to pay only covered claims, and must deny all other claims. In order to be reimbursable by the
A
Our method of statutory interpretation is well established. “[0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Furthermore, [w]e presume that laws are enacted in view of existing relevant statutes . . . and that [statutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law.” (Citations omitted; internal quotation marks omitted.) Conway v. Wilton, 238 Conn. 653, 663-64, 680 A.2d 242 (1996).
We begin our analysis, therefore, with an examination of the words of the statute itself. The guaranty act does not define the term “insurer.” It merely defines “[insolvent insurer,” which provides for the circumstances in which an insurer is to be considered insolvent so that its obligations will be met by the association;
Section 38a-838 (6) bars recovery by any “reinsurer, insurer, insurance pool, or underwriting association . . . .” The legislature did not expressly preclude self-insurers from recovering. The defendants argue, however, that a self-insurer is an insurer, so explicit mention of self-insurers in the section would be redundant. We disagree with the defendants for several reasons.
First, General Statutes § 38a-l provides that, for purposes of title 38a, entitled “Insurance,” the terms defined in the section “unless it appears from the context to the contrary, shall have a scope and meaning as set forth in [the] section.” Section 38a-l (10) defines insurance as “any agreement to pay a sum of money, provide services or any other thing of value on the happening of a particular event or contingency or to provide indemnity for loss in respect to a specified subject by specified perils in return for a consideration. In any contract of insurance, an insured shall have an interest which is subject to arisk of loss through destruction or impairment of that interest, which risk is assumed by the insurer and such assumption shall be part of a general scheme to distribute losses among a large group of persons bearing similar risks in return for a ratable contribution or other consideration.” (Emphasis added.) Thus, the legislature defines insurance as the assumption of another’s risk for profit. An employer that self-insures for workers’ compensation purposes retains its own risk; it does not assume the risk of another. Moreover, it does not receive consideration. It is merely fulfilling its obligations under the Workers’ Compensation Act to ensure that its workers
Additionally, § 38a-l (11) defines an “insurer” as including “any corporation, association, partnership or combination of persons doing any kind or form of insurance business other than a fraternal benefit society, and shall include a receiver of any insurer when the context reasonably permits. ...” The fact that a self-insuring employer has chosen to retain its own workers’ compensation risk rather than purchase insurance does not transform a company’s business to that of insurance, that is, the employer is not “doing any kind or form of insurance business” within the meaning of § 38a-1 (11). Moreover, the subsection goes on to define “alien insurer,” “domestic insurer,” “foreign insurer,” “mutual insurer” and “unauthorized insurer.” As in § 38a-838 (6), the legislature made no mention of self-insurers. We have stated that “[u]nless there is evidence to the contrary, statutory itemization indicates that the legislature intended [a] list to be exclusive.” (Internal quotation marks omitted.) State v. Kish, 186 Conn. 757, 766, 443 A.2d 1274 (1982). We do not find sufficient evidence to the contrary in this case. Therefore, according to the plain language of the statute, a self-insurer is not an insurer under title 38a.
According to one scholar, “[a]ll insurance contracts concern risk transference, but not all contracts involving risk transference are insurance.” R. Keeton & A. Widiss, supra, p. 12. In the appeal before us, Metropolitan did not purchase insurance to cover its risk. Rather, it complied with the Workers’ Compensation Act by retaining its own risk. It did not thereby become transformed into an insurer. Rather, it retained its character as an employer that simply elected to pay the expenses associated with its employees’ work-related accidents. Although this is commonly referred to as self-insuring,
We now turn our attention to the relevant legislative history of the guaranty act, which, unfortunately, is devoid of any discussion of the definition of “insurer.” As we declared in Hunnihan v. Mattatuck Mfg. Co., supra, 243 Conn. 452, “[t]he legislative history [of the guaranty act] confirms that the association was established for the benefit of consumers.” We noted that “[a]t the public hearing held prior to passage of the bill proposing the creation of the association, Peter Kelly,
Although the legislative history of the guaranty act does not contain any discussion of the definition of “insurer,” there is ample evidence that the guaranty act was “substantially the same as a model bill adopted by the National Association of Insurance Commissioners [NAIC], which is an organization of the insurance commissioners of the fifty [s]tates.” Conn. Joint Standing Committee Hearings, supra, p. 55, remarks of Peter Kelly; see also 14 S. Proc., Pt. 6, 1971 Sess., p. 2613, remarks of Senator Joseph Dinielli; 14 H.R. Proc., Pt.
In 1983, an NAIC study committee submitted a report to the NAIC concerning self-insured workers’ compensation groups. 2 NAIC Proceedings (1983) p. 742. While such groups are not identical to an individual employer like Metropolitan, they do self-insure, as a group. We therefore find the report instructive.
In the final step of our interpretation of § 38a-838 (6), we consider the statute in question with regard to other relevant statutes, under the assumption that the legislature has enacted a consistent body of law. Conway v. Wilton, supra, 238 Conn. 664. Therefore, we consider it noteworthy that in other contexts, the legislature has chosen to define “insurer” so as to include self-insurers. See General Statutes § 38a-363 (b) (no-fault motor vehicle insurance). For example, in Conzo v. Aetna Ins. Co., 243 Conn. 677, 686, 705 A.2d 1020 (1998), we held that a self-insured employer was required to provide uninsured motorist benefits to an employee who was injured while occupying an automobile during the course of his employment. In so doing, we concluded that the self-insured employer was an insurer within the meaning of § 38a-363, which defines terms used in our no-fault motor vehicle insurance statutes. Id., 683. Section 38a-363 (b) provides that the definition of insurer “includes a self-insurer and a person having the rights and obligations of an insurer . . . .” The fact that the legislature expressly defined “insurer” so as to include self-insurers in the no-fault motor vehicle insurance context but not in the workers’ compensation context does not lead ineluctably to the conclusion that it intended to exclude self-insurers in the latter area. Although such a fact is certainly not dispositive in the present appeal, it is an additional factor militating in favor of excluding self-insurers from the definition of insurers for purposes of § 38a-838 (6). It is reasonable to assume that the legislature, having explicitly demonstrated its intention that the definition of “insurer” includes self-insurers for puiposes of our no-fault motor
B
The defendants rely on case law from other jurisdictions to support their contention that a self-insurer is an insurer under the guaranty act. Although only a handful of jurisdictions have considered the precise issue before us, the majority of those with guaranty acts similar to § 38a-836 et seq. hold that a self-insurer is not an insurer. See Zinke-Smith, Inc. v. Florida Ins. Guaranty Assn., Inc., 304 So. 2d 507, 509-10 (Fla. App. 1974), cert. denied, 315 So. 2d 469 (Fla. 1975) (self-insuring employer not insurer such as would prevent its claim from qualifying as “covered claim” under Florida’s guaranty act); Iowa Contractors Workers’ Compensation Group v. Iowa Ins. Guaranty Assn., supra, 437 N.W.2d 917 (self-insured workers’ compensation group not insurer for purposes of Iowa’s guaranty act); Ulwick v. Massachusetts Insurers Insolvency Fund, supra, 418 Mass. 489 (self-insuring municipal employer not insurer within language or intent of Massachusetts’ guaranty act); In re Mission Ins. Co., 112 N.M. 433, 435, 816 P.2d 502 (1991) (stating that, for purposes of New Mexico’s guaranty fund, self-insurer was not insurer); Stamp v. Dept. of Labor & Industries, supra, 122 Wash. 2d 543-44 (holding that self-insured employers not reinsurers, insurers, insurance pools or underwriting associations for purposes of Washington’s guaranty act).
The courts of only two jurisdictions have held that a self-insurer is an insurer for purposes of their guaranty acts. The defendants urge us to follow them. The relevant cases are easily distinguishable, however, and we therefore find them unpersuasive. First, in Ventulett v. Maine Ins. Guaranty Assn., 583 A.2d 1022 (Me. 1990), a Massachusetts resident was injured in a work-related
The defendants rely also on Kachanis v. United States, 844 F. Sup. 877, 889 (D.R.I. 1994), in which the United States District Court for the District of Rhode Island held that the United States, which self-insures its workers’ compensation liabilities pursuant to the statutory scheme of the Federal Employees’ Compensation Act; 5 U.S.C. § 801 et seq. (1988); was an insurer for purposes of the Rhode Island Insolvency Fund Act, that state’s equivalent of Connecticut’s guaranty act. Most of the Kachanis opinion is devoted to an analysis of federal preemption involving insurance law and application of the McCarran-Ferguson Act, 15 U.S.C. § 1012 (b) (1988), which limits federal preemption in the area of insurance. Kachinis v. United States, supra, 880. When it turned to the issues that are relevant to the facts of the appeal before this court, the Kachanis court first concluded that the Federal Employees’ Compensation Act did not relate to the business of insurance. Id., 883. The court later recognized that an
We join, therefore, the majority of courts that have decided the status of self-insured employers under an insurance guaranty act, and we hold that self-insured employers are not insurers for purposes of Connecticut’s guaranty act. The defendants have advanced no other persuasive reason for holding that Metropolitan’s claim should not be considered a covered claim under § 38a-838 (6). Therefore, we conclude that Metropolitan’s claim was a covered claim as defined in that subsection.
II
The defendants’ second claim is that even if we hold that Metropolitan is not an insurer under the guaranty
Section 38a-845 (1) provides: “Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer, which is also a covered claim under [the guaranty act], shall exhaust first his rights under such policy. Any amount payable on a covered claim under [the guaranty act] shall be reduced by the amount of any recovery under the claimant’s insurance policy or chapter 568.” Because Doucette failed to exhaust the limits of his uninsured motorist policy with Shelby, he would be barred from recovering from the association. Pursuant to § 31-293,
In addition to allowing an employee to bring a claim against a tortfeasor, § 31-293 (a) allows an employer that has paid or become obligated to pay compensation to the injured employee under the Workers’ Compensation Act “to take action against a ‘third person’ who is legally liable to pay ‘damages’ for an injury to an employee.” Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 380, 698 A.2d 859 (1997). We have stated that the employer’s right of action under § 31-293 is separate and distinct from the employee’s right, noting that “it is a right vested in the employer exclusively; it is not the right of the employee.” Robinson v. Faulkner, 163 Conn. 365, 377-78, 306 A.2d857 (1972). Additionally, the statute provides that: “No compromise with the [tortfeasor] by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him. . . .” General Statutes § 31-293 (a). Such language makes clear that the employer and employee have separate rights under the statute. Moreover, we have noted that the statute “also provides that, if either the employer or the employee fails to join in an action instituted by the other against a tort feasor within thirty days after notification by that other, his cause of action is barred. These provisions clearly indicate that under the statute the employer and the employee each has a right of action which is separate from that of the other.” Stavola v. Palmer, 136 Conn. 670, 678, 73 A.2d 831 (1950).
The legislative history of the Workers’ Compensation Act provides additional support for this interpretation. In Dodd v. Middlesex Mutual Assurance Co., supra,
We return now to the defendants’ argument that § 38a-845 bars Metropolitan from recovering because Doucette failed to exhaust his policy limits. With respect to the prerequisite of exhaustion, § 38a-845 (1) provides: “Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer, which is also a covered claim under [the guaranty act], shall exhaust first his rights under such policy. . . .” Metropolitan does not have, however, “a claim against an insurer under any provision in an insurance policy . . . .” Rather, its claim is against a negligent driver and the owner of the
The defendants’ remaining arguments also rely on the applicability of § 38a-845 to Metropolitan’s claim. Specifically, in addition to their exhaustion argument, the defendants claim that § 38a-845 requires that Metropolitan’s claim be reduced by the total amount of Doucette’s recovery under the Workers’ Compensation Act.
Finally, Pomes and Jensen assert an additional reason, separate and distinct from § 38a-845, to reduce any recovery obtained by Metropolitan.
In support of their argument, Pomes and Jensen cite Pokorny v. Getta’s Garage, 219 Conn. 439, 594 A.2d 446 (1991), in which this court held that an employer is not required to pay workers’ compensation benefits in a case in which an employee obtained recovery from another insurer and the other insurer did not assert a hen or offset pursuant to General Statutes (Rev. to 1989) § 38-174n, now § 38a-470. Pomes and Jensen claim that, in the present appeal, “as in Pokorny, [Metropolitan] was not required to pay workers’ compensation benefits to Doucette where Doucette obtained recovery from Shelby and where Shelby apparently never asserted a statutory hen or offset against Doucette’s recovery of workers’ compensation benefits.” Any reliance on Pokomy is misplaced, however, because that case is simply inapposite.
In Pokorny, we held that an employer was not required to pay its injured employee the value of the employee’s medical expenses that had been paid previously by the employee’s medical insurance carrier, which had not filed a hen pursuant to statute. Id., 440. It does not follow from this holding, however, that, in the present appeal, Metropolitan was required to apply an offset for Shelby’s payment to Doucette. Pokorny “involve[d] only the rights and obligations between the [injured employee], on the one hand, and [the defendant
V
In conclusion, we hold that a self-insured employer is not an insurer for purposes of the guaranty act and, therefore, is not precluded from asserting an otherwise valid claim under § 38a-838 (6). Additionally, we hold that because an employer’s right to assert a claim pursuant to § 31-293 (a) is separate and distinct from its employee’s right, § 38a-845 is inapplicable to Metropolitan in the present appeal and Metropolitan need not satisfy the exhaustion prerequisite of § 38a-845, nor that statute’s requirement that amounts payable on covered claims be reduced by any recovery under a claimant’s insurance policy or the Workers’ Compensation Act.
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes § 38a-838 (6) provides: “ ‘Covered claim’ means an unpaid claim, including, but not limited to, one for unearned premiums, which arises out of and is within the coverage and subject to the applicable limits of an insurance policy to which sections 38a-836 to 38a-853, inclusive, apply issued by an insurer, if such insurer becomes an insolvent insurer after October 1, 1971, and (a) the claimant is a resident of this state at the time of the insured event; or (b) the claimant is not a resident of this state, but only under all of the following conditions: (i) The insured is a resident of this state at the time of the insured event; (il) the insolvent insurer is licensed to do business in this state at the time of the insured event; (iii) the state of the claimant’s residence has an association similar to the association created by said sections; and (iv) such claimant is refused coverage by such association because the insolvent insurer is not licensed to do business in the state of the claimant’s residence at the time of the insured event; or (c) the property from which the claim arises is permanently located in this state, provided the term ‘covered, claim’ shall not include any amount
“The association is a nonprofit legal entity established by General Statutes § 38a-839 and governed by the Connecticut Insurance Guaranty Association Act, which is codified at General Statutes § 38a-836 et seq. The association was established in order to reimburse, to a limited extent, covered claims against insolvent insurers.” Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 439 n.1, 705 A.2d 1012 (1997).
General Statutes §§ 38a-836 to 38a-853, inclusive.
General Statutes § 31-293 provides in pertinent part: “Liability of third persons to employer and employee. Limitations on liability of architects
“(b) When an injury for which compensation is payable under the provisions of this chapter is determined to be the result of a motor vehicle accident or other accident or circumstance in which a third person other than the employer was negligent and the claim is subrogated by the employer or its workers’ compensation insurance carrier, the insurance carrier shall provide a rate adjustment to the employer’s workers’ compensation policy to reflect the recovery of any compensation paid by the insurance carrier prior to subrogation. ...”
The record does not specify the coverage limit of the Shelby policy. General Statutes §§ 38a-336 and 14-112 provide, however, that each automobile liability insurance policy shall provide uninsured and underinsured motorist coverage of at least $20,000 for personal injuries.
General Statutes § 31-284b (b) provides: “An employer may provide such equivalent accident and health or life insurance coverage or welfare plan payments or contributions [as provided in subsection (a)] by: (1) Insuring his full liability under this section in any stock or mutual companies or associations that are or may be authorized to take such risks in this state; (2) creating an injured employee’s plan as an extension of any existing plan for working employees; (3) self-insurance; or (4) by any combination of the methods provided in subdivisions (1) to (3), inclusive, of this subsection that he may choose.” Although the legislature has made technical changes to § 31-284b (b) since 1989, the time of the accident in this case, the statute remains substantively the same.
General Statutes § 38a-841 provides in relevant part: “Obligations of association. Limitations. Assessments. Investigation of claims. (1) Said association shall: (a) Be obligated to the extent of the covered claims existing prior to the determination of insolvency and arising within thirty days after the determination of insolvency, or before the policy expiration date if less than thirty days after the determination, or before the insured replaces the policy or causes its cancellation, if he does so within thirty days of such determination, provided such obligation shall be limited as follows: (i) With respect to covered claims for unearned premiums, to one-half of the
Section 38a-838 (6) defines a covered claim as “an unpaid claim, including, but not limited to, one for unearned premiums, which arises out of and is within the coverage” of an insurer that becomes insolvent. See footnote 1 of this opinion for the complete text of this subsection.
This court brought a motion, sua sponte, to dismiss this appeal due to the absence of the association, an indispensable party. After a hearing on the issue, however, rather than dismiss the appeal, we elected to treat the association as a party defendant and its amicus curiae brief as the brief of a party. The association offered no objection and became a party effective June 8, 1998.
Because the defendants sometimes make different arguments, we will refer to them individually when necessary. Otherwise, references to “the defendants” will pertain to all defendants collectively.
Although Pomes and Jensen appear to be arguing against their interests by asserting that Metropolitan cannot recover from the association, thereby leaving only Pomes and Jensen potentially liable to Metropolitan, Pomes and Jensen note that § 38a-838 (6) (c) provides in part that “a claim . . . asserted against a person insured under a policy issued by an insurer which has become an insolvent insurer, which, if it were not a claim by or for the benefit of a reinsurer, insurer, insurance pool or underwriting association, would be a ‘covered claim’ may be filed directly with the receiver of the insolvent insurer but in no event shall any such claim be asserted against the insured of such insolvent insurer. . . (Emphasis added.) Moreover, as the association notes: “If [Metropolitan] were permitted to recover from [Pomes and Jensen], [Pomes and Jensen] . . . would likely seek indemnification from [the association].” Therefore, it appears that the association is the true party in interest.
We recently addressed the issue of the obligation of a self-insured employer to provide uninsured motorist benefits under General Statutes § 38a-336 (f), which provides for coverage to an “employee of a named insured.” In Conzo v. Aetna Ins. Co., 243 Conn. 677, 686, 705 A.2d 1020 (1998), we held that a self-insured employer was required to provide such benefits. We also concluded that the self-insured employer was an insurer within the meaning of General Statutes § 38a-363, which defines terms used in our no-fault motor vehicle insurance statutes. Id., 683. It is noteworthy, however, that § 38a-363 expressly includes a self-insurer within the definition of “insurer.” As we note in part IA of this opinion, the statutes at issue in the present appeal do not expressly define an insurer as encompassing self-insurers. Therefore, the conclusion that the self-insured employer in Conzo was an insurer does not inform our decision as to the status of the employer in the present appeal.
See footnote 6 of this opinion.
See footnote 7 of this opinion.
General Statutes § 38a-838 (8) provides: “ ‘Member insurer’ means any person who (a) writes any kind of insurance to which sections 38a-836 to 38a-853, inclusive, apply under section 38a-837, including but not limited to the exchange of reciprocal or interinsurance contracts, and (b) is licensed to transact insurance in this state . . . .”
The defendants claim that it does appear from the context that the legislature intended to include self-insurers in § 38a-1 (11). They assert that, because the purpose of the guaranty act is to protect insureds and injured claimants, and Metropolitan fits into neither category, a determination that Metropolitan is not an insurer would be contrary to the act’s purpose. Pomes and Jensen claim that if the association is required to pay Metropolitan, “the ultimate beneficiary would be an insurer [Metropolitan] and not the injured claimant, Doucette.” This tautological argument presupposes, however, that Metropolitan is an insurer. This argument fails because, as we conclude, Metropolitan is not an insurer.
The association also claims that a reading of § 38a-845, which provides that the association’s obligations shall be reduced by any recoveries made
At least one state has avoided the confusion surrounding the term self-insurer by labeling an employer that has retained its own workers’ compensation risk an “own risk employer.” See Cities Service Gas Co. v. Witt, 500 P.2d 288 (Okla. 1971).
The NAIC report notes that there are differences between a self-insurer, which “retains and is responsible for its own workers’ compensation risk,” and a self-insured workers’ compensation group, which is a “separate entity formed by many employers to assume their workers’ compensation risks.” 2 NAIC Proceedings, supra, p. 748. A reading of the NAIC report, however, leads us to the conclusion that the report’s reasoning applies to a self-insurer with the same force as to a self-insured workers’ compensation group.
We note that General Statutes § 38a-838 (6) excludes from the definition of a covered claim “any amount due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise . . . .” (Emphasis added.) We recognize that a self-insured workers’ compensation group might be considered similar to an insurance pool, which is not defined in the General Statutes. Initially, however, we note that, as there is a distinction between a self-insurer and an insurer, it is reasonable to conclude that there is a similar difference between a self-insured insurance pool or group
In reaching its conclusion that the United States is an insurer, the Kachanis court relied heavily on Ferrari v. Toto, 9 Mass. App. 483, 402 N.E.2d 107 (1980), aff'd, 383 Mass. 36, 417 N.E.2d 427 (1981), an appellate court opinion that held that Massachusetts’ guaranty fund “is excused from paying claims if the ultimate beneficiary is an insurance company." (Emphasis added.) Id., 486. In other words, Ferrari held that Massachusetts’ guaranty act precludes all members of the insurance industry from recovery, not merely member insurers. Id., 486-87. It is noteworthy, however, that when the Supreme Judicial Court of Massachusetts considered the precise issue with which we are faced, months after Kachanis was decided, that court held that a self-insurer is not an insurer for purposes of the state’s guaranty act. Ulwick v. Massachusetts Insurers Insolvency Fund, supra, 418 Mass. 489.
See footnote 4 of this opinion.
Pomes and Jensen argue that because Metropolitan’s claim is derivative of Doucette’s claim, Metropolitan’s rights are no greater than Doucette’s. Therefore, according to these defendants, any defense available to the defendants against Doucette may also be used against Metropolitan. For support, Pomes and Jensen cite Packtor v. Seppala & AHO Construction Co., 33 Conn. App. 422, 431, 636 A.2d 383, appeal dismissed, 231 Conn. 367, 650 A.2d 534 (1994), in which the Appellate Court denied an employer’s right of action in a case in which the employee’s right of action was barred by the statute of limitations, stating that “it would be illogical to grant greater rights to an employer whose rights are derivative, than to the employee from whom those derivative rights flow.” Pomes and Jensen fail to recognize, however, that the Appellate Court did not bar the employer’s action based on any failure on the employee’s part. Indeed, the court stated: “We agree with [the employer] that it would be inequitable to bar an intervention action by an employer for no other reason than that the employee failed to file his or her action within the applicable period of limitation. . . . The action is not barred, however, by the employee’s procedural failure but by the failure of the employer to bring suit in a timely manner.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 430-31. Likewise, in the present appeal, it would be inequitable to penalize Metropolitan for Doucette’s failure to exhaust the limits of his insurance policy. Metropolitan had no control over Doucette’s actions. It could not compel Doucette to exhaust the limits of his policy. For these reasons, the argument of Pomes and Jensen fails.
In an effort to support their argument, Pomes and Jensen also cite a case from the United States District Court for the District of Connecticut, Harbor Ins. Co. v. Connecticut Ins. Guaranty Assn., 711 F. Sup. 70, 72 (D. Conn. 1989), in which the court held that a claimant’s failure to exhaust his rights under available coverage under an uninsured motorist policy prevented any subsequent recovery against the association by the claimant or the excess insurance earner. Although the fact that the plaintiff in Harbor Ins. Co.
The defendants rely on the language of § 38a-845 (1), which provides in part: “Any amount payable on a covered claim under [the guaranty act] shall be reduced by the amount of any recovery under the claimant’s insurance policy or chapter 568." (Emphasis added.)
Again, the association relies on the language of § 38a-845 (1) that provides that any amount payable on a covered claim shall be reduced by any “recovery under the claimant’s insurance policy . . . .” (Emphasis added.)
The association did not advance this claim.
If Pomes and Jensen are concerned about double recovery, we note that “§ 38a-334-6 of the Regulations of Connecticut State Agencies allows an insurer to insert a provision in its contract with the insured mandating a setoff equal to any amounts paid to the insured by way of workers’ compensation, thereby preventing double recovery by the employee.” Dodd v. Middlesex Mutual Assurance Co., supra, 242 Conn. 387.