*1 INSURANCE WYOMING GUARANTY
ASSOCIATION, Appellant
(Plaintiff),
v. INDEMNITY ALLSTATE COMPANY D. Paul Schierer of Pence and MacMil- Company, and Allstate Insurance lan, Laramie, appellant. for (Defendants). Appellees Wright Richards, Brandt, Robert G. Nelson, UT, Miller & City, Salt Lake
No. 91-204. appellees. Supreme of Wyoming. Court MACY, C.J., THOMAS, Before *
Dec. 1992. CARDINE, GOLDEN, URBIGKIT and JJ. Rehearing Denied Feb.
CARDINE, Justice. Guaranty Insurance Asso- (WIGA) ciation upon was called step into the shoes of Laramie Company Insurance by assuming obligations of its automo- bile when Laramie Company Insurance became insolvent. The vehicle involved in this accident in- was sured Laramie Insurance Company. Herring Ms. driving was this non-owned permission vehicle with of the named in- Herring sured. Ms. driving this non- permission owned vehicle with named insured. Ms. Herring was also an insured separate under a automobile liabili- ty on an owned automobile appellee, with the Allstate Insurance Com- pany (Allstate). sought require WIGA Allstate to indemnify defend and in lawsuit filed. Allstate refused. The dis- trict court judgment entered in favor of Allstate.
We affirm. expounds
WIGA summary issues:
Did the trial court err in finding that Allstate Indemnity Company and Allstate (Allstate) Insurance was not insurer, responsible obligated cover the loss in Eigenberger v. Herring and not indemnify Wyo- ming Association paid for sums in settlement and defense of that action? argument.
* ChiefJustice at time of oral *2 restyles copy the issue with this of with declara- query: page tions is attached as “B” Exhibit and incorporated by herein correctly the trial court rule that reference. The
Did Indemnity Company Company Laramie Insurance appellee Allstate was de- (“All- pursuant and Allstate Insurance clared insolvent Wyoming to state”) obligation no to indem- shoulders 41—103(a)(iii) by Statutes a court of § 26— Wyoming nify the competent jurisdiction in Civil Action No. (“WIGA”) any liability, Association for 22800, District, County Second Judicial of arising from the damages expenses Albany, of Wyoming February State on Eigenberger action entitled A. Christine 14, A copy Appoint- 1990. of the Order 23150, No. in Herring, Civil v. Melina ing Directing Liquidation Receiver and In and Judicial District For Second Declaring and Insolvency is attached Wyoming? Albany County, State of incorporated hereto as Exhibit “C” and facts are: stipulated by herein reference. Pursuant to its statutory duty, Wyoming Statutes 26- The facts in this case are not in dis- seq., 4-101 et Plaintiff pute. August On or about 1989 at Insur- p.m., Herring (hereinafter 9:00 Melina Lee was ance about Guarantee Association in an accident A. “WIGA”) involved with Christine agreed referred to as to defend Eigenberger the corner at of Ninth indemnify Herring. and Avenue, Laramie, Wy- Street and Ivinson During defense, the course of said oming. Eigenberger traveling was north Plaintiff Herring WIGA learned that was bicycle on on Ninth Street when she insured under Allstate Policy No. 017- entered intersection. At the same 171-172, 10/25, FC9-645479 issued to time, Herring traveling was south on Herring John and Janet liability with lim- in an Ninth Street 1982 Buick Electra $100,000.00 person, $300,- its of each by F. Gay owned Otto Bolin and Leslie copy 000.00 each occurrence. A Bolin, Douglas, Wyoming. residents of page with declarations Herring permissive awas user of the attached hereto as “D” Exhibit and incor- Bolin vehicle at the time of the accident. porated by herein reference. WIGA sent Herring An accident occurred when at- notice of suit to Allstate with a re- tempted to turn East onto Ivinson. The quest that Allstate defend the action. bicycle and vehicle collided. Allstate declined. There is no issue re- Eigenberger Complaint seeking filed a garding adequacy or timeliness of $112,300.00 damages Herring from the notice. first made WIGA its demand Civil Action No. 22844 in the District $14,912.48 by September letter dated Court, District, County Second Judicial copy A of said letter is at- Albany, Wyoming. A copy State of hereto “E” tached as Exhibit and incor- complaint Ex- is attached hereto as porated by herein reference. incorporated “A” by hibit herein ref- pri- Civil Action No. 22844 was settled Eigenberger’s Complaint erence. al- $10,000.00 payment or to trial with a leged Herring negligent fail- Eigenberger. copy to A WIGA ing yield right way Eigenber- Release of All Claims Order of Dis- Herring ger completed when the left missal are attached hereto as Exhibits Ivinson, thereby causing turn onto respectively incorporat- “F” and “G” injuries Eigenberger. accident and by reference. ed herein WIGA incurred Herring denying negli- filed an answer $4,912.48 and, gence alternatively, alleging compa- as costs of defense. The settle- negligence. attorney’s paid rative ment amount and fees MacMillan Pence and WIGA de- accident, At the time the Bolin fense of Civil Action No 22844 are rea- vehicle was insured Laramie Insur- The sole issue to determined Company, sonable. be Policy No. LPA $100,00.00 is whether WIGA or Allstate was re- limits of each $300,000.00 person quired pay each accident. A to defend and the loss in Civil dling Action No. 22844. If Allstate was re- subsequent covered claims to an pay, Judgment quired insolvency, to defend and the cost of examinations un- $14,912.48plus per- the amount of seven der W.S. 26-31-112 and other ex- (7%) penses prejudgment Sep- cent interest from chapter; authorized tember 1990 should entered (iv) Investigate claims brought against *3 against Allstate. If WIGA was adjust, association and compromise, pay, Complaint to defend and Plaintiffs pay settle and covered claims to thé ex- should be dismissed. tent of the association’s obligation and deny claims; all other was created to assure that a poli- WIGA (v) Notify any persons as the commis- cy protected holder be would the event sioner directs under W.S. 26-31- insolvency of an insurer. W.S. 26- 109(a)(iii); 31-101, (1983); -117 19A A. Apple- John (vi) Handle man, through claims employees its Insurance Law and Practice (1) through or one or (1982); Anderson, more insurers or 2A Ronald A. Couch on persons other designated servicing (Rev. 1984). fa- Insurance 2d 22:27 Op- ed. cilities, voluntary whose accepted desig- erating generated by funds are member nation is to the commissioner’s assessments. W.S. 26-31-107 approval; powers duties and of WIGA are set out (vii) (1983): servicing facility W.S. 26-31-106 Reimburse each obligations for association pays it and for (a) The association shall: expenses incurred while handling associ- (i)Be obligated to the extent of the claims; ation and prior covered claims existing to the de- (viii) Pay any other expenses association insolvency termination of arising chapter. authorized this (30) thirty days within after the determi- (b) The may: association insolvency, nation of or before the policy expiration (i) in, (30) Appear date if than thirty less appeal any defend and ac- days determination, after the tion on a covered or before claim or on a claim replaced brought against association; the insured causes cancellation, its if he does so within thir- (ii) Employ any or retain persons neces- ty days determination, but the sary to handle perform claims and other obligation only includes duties; amount of association each covered claim which exceeds one (iii) necessary Borrow funds to effect the ($100.00) hundred dollars and is less than purposes of chapter this in accord with one ($100,- hundred thousand dollars plan operation; 000.00), except that the association: (iv) sued; Sue or be (A) pay Shall the full amount of any (v) Negotiate and become party to con- covered claim arising out of a worker’s necessary tracts to carry out purpose compensation policy; and chapter; of this (B) obligated Is not policyholder to a (vi) settlements, Review releases and ad- or claimant in exceeding an amount justments to which the insolvent insurer obligation insolvent insurer’s under the parties its insureds were to determine policy from which the claim arises. settlements, the extent to which the re- (ii) Be deemed the insurer to the judgments extent leases may properly be obligation contested; its of the covered claims rights, and to that extent has all duties (vii) Refund to the member insurers in obligations of the insolvent insurer proportion to the contribution of each insolvent; as if the insurer were not insurer, member that amount (iii) provided As association’s assets W.S. 26-31-107 as- exceed its liabili- ties as the determines; sess insurers’ amounts board of directors necessary pay obligations association’s para- (viii) under Perform other necessary acts graph (i) subsection, subsequent carry purpose out the chapter, of this to an insolvency, expenses [emphasis of han- added] provision of the act is also Another es- Section 4. “Other” Insurance Claus posed sential to resolution of the issues es. In all instances where the insured consideration, (1983): our W.S. 26-31-111 holds more than one of uninsured policy upon cases The existence of WIGA makes the Laramie here tute policy specifically provides that subject of uninsured motor vehicle insur- No ny limits are first exhausted. The Allstate ance {See Insurance collectible insurance.” shall be excess insurance over Insurance claim settled for less than the Laramie obligation upon sured motorist tions of the vehicle,” subject to the terms and condi- respect thereof within the limits cause of motor vehicle where the 31-10-101, the term “uninsured motor ter shall Because any recovery of an insolvent insurer which able an *4 [emphasis added] covered person For (a) Any person automobile or non-owned automobile Wyoming’s “with coverage. until the Laramie Insurance on a under W.S. 31-10-102 purpose is unable to make policy co-policy WIGA relies almost has a claim claim, which insolvency. respect covered coverage, reduced coverage, under the insurance legal liability Allstate to defend or limits, statutes which treat policy. Any are shall first exhaust his W.S. a to a having collectible. Since this claim specified concerned with unin- other than a there was never an includes an insured provides: temporary 31-10-101, we also consider under this liability a claim the amount of p. payment of its insured amount under W.S. the Allstate therein be- exclusively any its insur- insurer Compa- infra.) substi- policy, also a chap- other -104 pay- pay. this case. law do not this and that the uninsured motor vehicle been written eral duty is a covered claim as statutes, insolvency. whether Allstate was sions: agree. its er, claim existed 103(a)(ii)(1983) and that Part 1: gally obligated damages which the insured shall be le- The Allstate contends its bined be construed automobile provides primary policy. will be recoverable to the full extent of separate premiums extent age motorists insurance or is entitled to re actual Such cover under more than uninsured motorists Allstate will WIGA indemnify [1] combined limits of all such parties agree minimum recovery, as to all other coverages damages of this rules and under Section 31-9-102—W.S. to to apply W.S. apply differently prior involved pay under the to mean that coverage requirements however, to pay sustained 26-31-106(a)(i). The the claim because the to the determination of under all this circumstance. We that the claim at issue regulations, defined W.S. 26-31- included these pay have been an instance such as insurance, in primary policy for an insured all policies except WIGA had a if because of: the accident. circumstances will be the com for the insured disagree it had intended will not exceed in one policies, policy would have the insured for cover to defend for which and case paid, policies. Howev- as to which provi- shall gen- Regulations, ch. XXI- bodily injury by any 1. sustained II, (1989), provides: person, and 31-9-102(a)(xi) (1) (1) accident, provides: any 1. person W.S. one one (1) (xi) person, limit for one responsibility” "Proof of financial ($50,000.00) fifty ability respond amount of thousand dollars means evidence of in dam- (2) bodily injury ages liability, resulting because of to or death of two from accidents oc- accident, (1) curring persons any or more one to the effective date of the subsequent proof, arising ownership, twenty out of the in the amount of thousand dollars mainte- vehicle, ($20,000.00) injury nance or use of a motor in the because of to or destruc- ($25,- twenty-five property any amount of thousand tion accidentj.j dollars of others in one 000.00) bodily injury because of to or death of respect bodily prop- or with to which there is a injury to or destruction injury liability bond or insurance erty, applicable at the time of the accident but ownership, mainte- arising out of company writing the same either has use, loading and including nance denied thereunder or is or be- automobile or unloading, of the owned comes a non-owned automobile. insolvent[.] [*] Hs [*] [*] [*] [*] Section 26-31-106(a)(ii) provides there is other insurance was deemed to the insurer of the WIGA If under this
Allstate shall not be liable insured once Laramie Insurance any greater proportion 1 for a Part became insolvent. The uninsured motor applicable liability limit of statutes, loss that the supplementing vehicle rules and in the declarations bears to the stated regulations, and case law cited WIGA applicable limit of of all total operate repeal would or override W.S. loss; against such collectible insurance 26-31-106(a)(ii) give if we were to them the however, provided, the insurance with re- quot- effect contended for WIGA. The spect temporary automo- substitute provisions ed of the Allstate or a non-owned automobile shall be bile provide coverage the insured is driv- when excess insurance over other collect- ing only apply non-owned automobile *5 ible insurance. there is no other where collectible insur- Part 2: ance. We hold that under the factual cir- presented cumstance here W.S. 26-31- Non-duplication Benefits; Oth- 106(a)(ii) eligible injured per- furnishes a source of collectible er Insurance. No duplicate benefits for insurance. son shall recover under the same elements of loss Affirmed. In any similar insurance. the event the injured person eligible has other similar URBIGKIT, J., dissenting opinion files a applicable insurance available and to the THOMAS, J., joins. which accident, recovery the maximum under not exceed the all such insurance shall THOMAS, J., separate dissenting files payable been amount which would have opinion. provisions of the insurance under limit, providing highest and dollar URBIGKIT, Justice, dissenting, with greater shall not for a be liable THOMAS, Justice, joins. any proportion of loss to which this cov- respectfully I dissent. erage applies liability than the limit of appli- hereunder bears to the sum of the problem majority The I have with the limits of of this cable opinion employs appli- is that it a selective other and such insurance. statutory language cation total disre- The Allstate included “Uninsured gard Wyoming Legislature’s State Insurance.” That section of the Motorist purpose adopted Wyo- intended when it policy included: ming Guaranty Insurance Association Act ” means: 3. “uninsured automobile summarily in 1971. Because it concludes (a) respect that the As- a motor vehicle with to the (WIGA) “step[ped] ownership, maintenance or use of which sociation into the is, specified Company there at least the amounts shoes” of the Laramie Insurance 26-31-106(a)(ii) responsibility pursuant Wyo.Stat. the financial law of the § (1983), majority derogates Wyo.Stat. state which the insured automobile is 26-31-lll(a) garaged, bodily injury principally no lia- while at the same bility policy applicable ignoring body time an bond or insurance extensive related respect underlying policy at the time of the accident with case law and the consid- any person organization legally support re- erations which a different result. automobile, sponsible statutory provisions part: state in for the use of such Those right shall first exhaust (a) poli- shall: his under the The association [*] [*] [*] [*] [*] [*] cy”)- Next,
(ii)
majority
the insurer to the ex-
summarizes the dis-
Be deemed
obligation
positive
of the covered
of its
basis for its decision —since this
tent
rights,
to that extent has all
and
claims
case involved a borrowed automobile —the
obligations of the insolvent
(Allstate)
duties
poli-
Allstate Insurance
ifas
the insurer were not insol-
insurer
cy only provides
any
excess
“over
Further,
vent^]
other collectible insurance.”
existence of WIGA makes the insolvent
26-81-106(a)(ii).
Wyo.Stat. §
Company’s policy
Laramie Insurance
“col-
(a)
Any person having a claim
lectible” and Allstate thus had no obli-
insurer under an insurance
an
* * *
effect,
gation
pay.
to defend or
first exhaust his
under
shall
majority
appellate
adopts
argu-
Allstate’s
Any
payable on a
policy.
amount
ment in toto and without
relying
on
chapter shall
claim under this
covered
authority
application
other than a literal
any recovery
by the amount of
reduced
31—106(a)(ii)
and the “other
policy.
under the insurance
26—
insurance” clause in the Allstate
26-31-lll(a).
Wyo.Stat. §
simple
presented
appeal
The
issue
in this
appreciate
path
taken
fully
To
(DOC)
whether “drive other car”
cover-
critique of
majority,
synopsis
brief
age,1 in the case where the initial insurance
opinion
Following
is in order.
majority
insolvent,
applied
carrier is
should be
to a
issues, stipulated
appellate
recitation
loss
the claimant’s resort
before
facts,
concerning
statements
WIGA’s
guaranty
justified. The
fund is
ma-
funds,
operating
purpose and source of
jority
strongly disagree.
“no”
says
quotes Wyo.Stat.
26-31-106
majority
appellate
dismisses WIGA’s
powers) and
(outlining WIGA’s duties and
*6
argument by characterizing
relying
it as
provision
the “exhaustion”
26-31-lll(a)
(“Any
having
exclusively” upon
a
“almost
“uninsured mo-
person
§
* * *
policy
an insurance
torist” cases.2 Without discussion of or
claim
policy.
in Section
of the Allstate
1.
discussion of DOC and unowned vehicle
condition
II
For
coverage,
Appleman
policy
Alan
The "other insurance” clause in Section II states:
see 6C John
respect
bodily injury
Appleman,
Insurance Law and Prac-
With
an insured
and Jean
1979)
(Buckley
occupying
A.
an automobile not owned
tice 4455
ed.
and 12 Ronald
while
§
insured,
Anderson,
the named
the insurance under this
Couch on Insurance 2d
45:239
(1981).
coverage
only
apply
excess
shall
insurance
any
over
other similar
insurance available
case, motorist section of
In this
uninsured
applicable to
to such insured and
such au-
(Section
policy
the Allstate
II —Protection
primary coverage.
tomobile as
Motorists)
Bodily Injury by
Against
added.)
Uninsured
(Emphasis
recovery
source of
was unavailable as
direct
aspect
policy
I elaborate on this
of the Allstate
Eigenberger
policy
First,
since
for Christine A.
emphasize
for two reasons.
I want to
that
only provides uninsured
for
motorist
equate
insurance
Allstate seems to
"collectible”
(Melina
bodily injuries
sustained
the insured
Black’s Law Dictio-
with "available” insurance.
Herring)
injured
persons
not for
third
(6th ed.1990)
Lee
nary 135
defines "available" as
Nonetheless,
majority
(Eigenberger).
accessible; obtainable;
useable;
"[sjuitable;
quotes
does not discuss the "uninsured auto-
but
present
ready
Having
immediate use.
for
effectual;
Allstate
mobile” definition in Section II of the
efficacy;
sufficient force or
valid.”
however,
noteworthy,
case,
It
that
added.)
(Emphasis
this
since the Lara-
In
pol-
provision
insolvent,
uninsured motorist
in the Allstate
mie Insurance
was
its in-
icy clearly anticipates
having
provide
"useable; accessible;
certainly
surance
obtainable;
was
competitor
protection
insurance
due to
insol-
ready
present
immediate
for
(i.e.,
vency
company writing
“the
the [insurance
use.”
* * *
insolvent”).
policy]
Second,
is or becomes
injured person in this case had
if the
Further,
Herring
compare
driver
rather than bi-
the “other insurance” con-
been automobile
then,
(which
Eigenberger,
question,
policy
cycle
without
rider
dition in Section I of the Allstate
insurance
policy
Allstate would have been liable for
the Allstate
“shall be excess
states that
argue
any
coverage and would not have been able to
other collectible insur-
insurance over
automobile)
poli-
in the
respect
that the uninsured motorist
ance" with
to a non-owned
added),
body
cy
case law relied
(emphasis
and the whole
of related
with the "other insurance”
body
reference to the
accumulated
of relat-
tral National
Cal.App.3d
Ins.
ed case law3 and
(1981))
the wealth of other au-
Cal.Rptr.
(“
Legis-
‘The
thority
appellate
discussed
both sides
lature
provide
chose to
a limited form of
briefing,
majority
protection
dismisses WIGA’s
public,
not a fund for the
argument
protection
by simply stating that
companies
the court
of other insurance
agrees with Allstate that
the uninsured
from the insolvencies of
fellow mem-
statutes,
rules,
”)
motor vehicle
regulations
(Emphasis
bers.’
original.)
19A
See
and case
apply
law do not
in this circum-
Appleman
John Alan
&
Appleman,
Jean
stance. Consequently,
majority
sum-
Insurance Law and Practice
marily
concludes that WIGA “furnishes a
source of
By
collectible insurance.”
this
question
The real
presented is whether
linguistic adaptation, the majority elevates
the state fund has been structured to be
“excess insurance over
other col-
the insurance resource of last resort or a
lectible insurance” clause in the Allstate
substitute
primary
for the
carrier when the
policy
derogation
“ex-
primary carrier becomes insolvent. This
provision Wyo.Stat.
haustion”
26-31-
decision should
be determined
clear stat-
111(a).
utory language
interpretive
and not
appli-
Although
provide
WIGA was enacted to
cation
of insurance
pri-
exclusion or
a “last resort” source
protec-
of insurance
ority terminology.
tion,
majority
affirms that
pays
WIGA
There
argument
can be no
that at the
and Allstate does not.
regard,
place
time and
accident,
of this
the tort
majority’s statement that “WIGA was cre-
feasor, Herring, was
by,
insured
and the
ated to assure
holder would
victim, Eigenberger,
protected by,
was
an
protected in
the event
insolvency
operational
that was
of an
forgotten.
insurer” is
(Emphasis
operator
included
coverage: DOC—
added.) Allstate, a solvent insurance com-
clause,
unowned vehicle
Allstate insurance
pany paid by Herring
provide
compre-
017-171-172,
No.
FC9-645479. Ac-
protection,
hensive
ends
tually there were three insurance resources
up being
“protected”
party as a result
in effect at
requirement
that time as a
By
of this
decision.
no stretch of
the financial responsibility
Utah,
law of
imagination
qualify
does Allstate
as the
where
written,
the Allstate
“policy holder” that WIGA was created to
*7
of the state of Wyoming where the driver
protect
from other-insurer
insolvency.
engaged
was
in operating a motor vehicle.4
Ross v.
Co.,
Canadian Indem. Ins.
Cal.App.3d
Cal.Rptr.
(1983)
In describing these three coverages, it
(quoting
Union Ins. Co. v. Cen-
should
recognized
they
that
are not nec-
California
upon by
inapplicable.
tion,
WIGA was
I find no
Establishing
Statute
Compen-
Effect of
justification
conditioning
availability
for
sation
Claims Not Paid Because
Insurer's
unavailability
coverage
type
for this
Insolvency,
(1984).
30 A.L.R.4A 1110
For the
solely
of accident
injured party
on the basis of whether the
subject,
associated
Draper,
see Jane M.
Annota-
third-party
is a first or
claimant.
tion, Primary
Insolvency
Affecting
Insurer’s
as
Although Eigenberger would not have been able
Liability,
Excess Insurer’s
85 A.L.R.4A 729
to claim
under the uninsured motorist
(1991).
portion
(Section
II),
of the Allstate
she
clearly qualifies as someone who received bodi-
states,
many
In
there would be a fourth re
ly injury at the hands of an Allstate-insured
source
Wyoming.
which does not exist in
It is
permissibly operating
driver
pri-
a non-owned
insurance, usually designated
no-fault
personal
passenger
vate
automobile under Part 1 of Sec-
injury
(PIP).
protection
plan
benefit
See McMi
tion I
portion
of the Allstate
—that
Robertson,
Md.App.
chael v.
549 A.2d
policy governing Herring’s personal
liability
protection.
For a clear
Herring
recitation of the
pur-
and all others who
operative
theory
liability
chase
distinctions in
automobile
and result be
insurance do so in
part
protect
against exactly
tween
themselves
uninsured motorist and
what
no fault first-
happened
party
here.
coverages,
automobile insurance
see Lo
max v. Nationwide Mut. Ins.
siana,6
offending
Nat. Ins.
v. Protective
vehicle
Hickerson
(La.1980),
Omaha,
377
applied
383 So.2d
should be
Co.
before
state fund is
applied
first
are
faced
payment
predicate
that UM
benefits
within the
develops.
exposure
guaranty fund
requirement provided by Wyo.
before
exhaustion
Clarkin, 244
v.
26-31-lll(a).
The Kansas court in Hetzel
Stat.
Essentially,
800,
698,
stated:
804
Kan.
772 P.2d
question
relatively simple
seems
under
only reported
appears
“Louisiana
to be
26-31-lll(a),
as the statute
allowed the state
has not
jurisdiction which
is,
being rephrased
Herring, “[any person]
association credit for
guaranty insurance
having
against
a claim
Allstate [an insurer]
* * *
plaintiffs
from the
recovered
own
sums
shall first exhaust
under
[her]
coverage].”
motorists
policy. Any
[uninsured
payable
amount
on a cov-
recognized that: “The Loui-
The court then
chapter
claim
ered
under this
shall be re-
Supreme
analysis siana
Court’s
Hicker-
any recovery
duced
the amount of
under
son,
motorist
that uninsured
policy.”
the insurance
contemplated
‘nonduplication’
not
There is a most recent Oklahoma case
Act,
provision
Guaranty
appli
of its
is not
involving
complex sequence
of insolven-
Hetzel,
to Kansas.”
473 point inapplicable second principle ner is Laramie for decision coverage and now in- with the automobile which is application the of broad insurance corner is the driver solvent. At the second terminology to specific the constrained and (DOC/UV), at the third cor- coverage and private passenger in- automobile coverage. In deter- first-party ner is UM Initially, surance. this is the differentia- principle settled mining priorities, it is separate policies tion between may which if language that the policy law and vehicle classified primary be as and excess and insured, is not the driver’s insurance is provisions policies in the same pro- applied the uninsured motorist before first- vide for application levels of of the same coverage applied. party will be Further- carrier’s responsibility. The in- automobile more, available, coverage if UM is it must surance constricted within the crite- the be exhausted before state fund.as- ria of the Responsibility Financial Acts as obligation. coverage sumes Since DOC required driver coverage does not encom- applied applies, must be UM before and pass the of a concepts primary broad UM exhaustion required is before the state and another coverage umbrella insurer.7 liability, consequent- fund accrues it would In place, the first coverage DOC-UV ly seem even reasonable that without UM should not be conceptualized as excess in- involvement, coverage the DOC exhaustion surance, it is primary insurance as a second would be the before state fund coverage level to applied only after the obligation case, appears. this since we vehicle, insurance on the any, described if bicyclist have a victim rather than a motor is exhausted. If is no there automobile victim, sequences require vehicle a juxtapo- coverage, provides clause DOC-UV sition so that of a absence victim UM, primary coverage. or its half broth- vehicle, coverage is DOC claimed to er—under insured motorist insurance then, change positions time, for the first (UIM) either, not conventional excess —is jump higher to a than the level second it since is not behalf written on of the tort responsibility in after step instead of feasor, protection it is substitute written Frankly, before the state fund. I find no for the victim in the sense that similar first magic justification for this movement ei- person property damage your insurance on statute, logic, ther in terminology. motor vehicle coverage is not excess coverage, exposure Where there is UM property damage coverage liability hopeful- coverage DOC/UY is the second level ly provided by the feasor’s tort but, fund; if there is before no. policy. exposure coverage, by UM this court’s decision, operator coverage can then Conventional and primary excess cover- priority. move to last age general application definitions umbrella, major
One of the general liability, difficulties these and floater cases comes from Allstate’s utilization of a are 16 defined Ronald A. Co., typical coverage, Lexington For umbrella excess Vickodil v. Ins. 412 Mass. Wurth, drop requirement (1992); insurance where a down 587 ver N.E.2d 777 518 N.E.2d at guaranty application present precepts resulting policies sus a state ed, fund 611. Those from de- umbrella, floater, Washington etc., liability, see general Ins. Guar. Ass’n v. fined as Co., (W.D.Wash. F.Supp. provide Nat. high Ins. 1160 upon level based 1988); primary Wurth v. Ins. underlying Ideal Mut. 34 Ohio existence of a (1987); App.3d coverage, provide 518 N.E.2d Lechner do not the same character of Scharrer, v. (1988) (umbrella relationships private 145 Wis.2d N.W.2d 491 with the found passenger pri over a responsibility excess vehicular automobile financial cases, mary carrier). statutory require approved policies subjects In these where are PIP exists, and, not, regarding policy provisions coverage, ments were not at if it if the automobile entirely any; issue coverage, and the resulted decision from an insurance age if the driver’s cover- then, coverage; language third-party finally, examination of excess insur as London, Lloyd’s first-party coverage. gen- ance Luko v. Use UM of terms Pa.Super. (1990); Lechner, erally applicable primary A.2d insur- umbrella concepts designa- 429 N.W.2d primary at 492. This discussion can turn excess applied policy coverage into effectively limits versus tions do not automobile fit *10 reasonably relationship. amounts recoverable discussion. 62:41,
Anderson,
four)
applied
on Insurance 2d
levels of
coverage.
Couch
There is
§
(Rev.
Supp.1992):
ed.
at 55-56
1983 &
only
a classical difference in insurance
character,
protection
Primary
coverage is insur-
but
insurance
also a
coverage whereby, under the terms
control in the latter
significant
case for
liability attaches immedi-
policy,
aspects
policy
See,
provisions.
e.g., Bar
ately upon
happening
of the occur-
Transp., Inc.,
499,
tee v. R.T.C.
245 Kan.
gives
liability. Excess
rence that
rise to
(1989),
475
* *
greater
”)
signifi-
of
far
*.’
Second—and
v.
Wurth
Ideal Mut. Ins.
Co.,
majority
the “excess
325,
607,
cance—the
balances
34
App.3d
Ohio
518 N.E.2d
over
other collectible insur-
(1987)(“
insurance
612
‘[Cjollectible’does not refer to
language
ance”
in the Allstate
payment
actual
a sum money,
of
of
but
legislature’s underlying pur-
instead refers to the existence of other
pose
creating
majority
con-
WIGA.
applicable
insurance
based on the
prevail
that Allstate
cludes
should
because
particular
question.”);
occurrence
see
Company
the insolvent Laramie
also Wyoming Farm Bureau Mut. Ins.
is
In do-
“collectible” from WIGA.
Co. v.
Co.,
American Hardware Mut. Ins.
so,
majority
I
fails to
ing
believe that the
487 P.2d
(Wyo.1971).
320
recognize what
said in
this court
Allstate
case,
As I consider
find that the
Dept., 672
Co. v.
Ins.
P.2d
Ins.
central
issue
the “conflicting
resembles
810,
(Wyo.1983):
816
argument
statute”
by
raised WIGA and
an
parties
While the
to
insurance con
addressed
this court in West v. Wyo-
right
embody
tract have the
ming
Treasurer,
State
low
insurance.
Section
102(1)
Act,
1701.102(1).
1991).
40 P.S. §
implement
To
purpose,
the statute
added).
West,
(emphasis
822 P.2d at
the Pennsylvania
established
Insurance
accepted
complete disregard of our
In
Guaranty
(“Association”),
Association
construction,
majori-
the
statutory
rules of
charged
it
obligation
with the
of
attempt
no
to har-
ty in this case makes
paying “covered
property
claims” under
26-31-106(a)(ii)
Wyo.Stat.
monize
with
§§
casualty policies
by
issued
insurers
Instead,
26-31-lll(a).
the
rede-
that become insolvent. Section 201 of
31—106(a)(ii)by
Wyo.Stat.
fines
sum-
§ 26—
Act,
40 P.S.
1701.201. The Associ-
§
concluding that
furnished the
marily
WIGA
statutory
ation becomes a
insurer
in
of
insurance when it
source
collectible
place of the insolvent carrier to the ex-
“step[ped] into the shoes” of the Laramie
obligations
tent of its
on covered claims.
time,
Company. At the
same
1701.201(b)(l)(ii).
40 P.S.
func-
§
[The
majority gives
no consideration to
equivalent Wyo.Stat.
of
tional
26-31-
§
26-31-lll(a)
Wyo.Stat.
whether or not
§
106(a)(ii)
connection,
In that
the Associ-
]
procedural
precedent
creates a
condition
rights, duties,
ation has “all
and obli-
that must
satisfied or “exhausted”
be
be-
gations of the insolvent insurer as if that
“step[s]
directly
fore
in.” A
WIGA
con-
Id.
insurer had not become insolvent.”
in
trary result
a somewhat similar case can
is,
duty
pay
The Association’s
claims
Palmer
Diacon v. Montana
in
be found
course,
conditions,
of
not the
Ass’n,
Ins. Guar.
239 Mont.
tion to
accident,
holders and claimants who
and,
automobile
being
unable
are faced
payment
with financial loss because of
obtain
from the
insur-
insolvent
insolvency
prop-
tortfeasor,
of certain
may
carriers
er of the
look to
er,
provision
secondary
in his own
motorist
insurer should
re-
uninsured
applica-
sponsible
or in some other
specific
absence of
lan-
guage
contrary.
secondary
ble
premium
insurer
received a
has
for the
Bethea,
orig-
(emphasis
The U.C.C. became an contract er than a insolvent insurer though claim, into written its terms. which is shall Tri- also a covered first County policy. v. City Any Electric Association exhaust his under the under payable on a covered claim amount by the chapter shall be reduced PORTER MUIRHEAD CORNIA & HOW recovery under the insur- ARD,
amount of Porter Muirhead & f/k/a Wyoming corporation, Porter; James A. Porter; Muirhead; Robert D. T. only makes sense if Chris statutory provision Kumor; Dodson; Joanne R. for exhaustion of the provide it is read to James B. Howard; Cornia; rights prior turning Dennis R. Gerald D. interpretation is Hopkins, individually, This buttressed WIGA. Steven W. referring definition Appellants (Plaintiffs), “covered claim” found 26-31- v. 103(a)(ii): (ii) unpaid “Covered claim” means an Wyoming, By Through The STATE of claim which arises out of and is within the WYOMING BOARD OF CERTI and does not exceed the ACCOUNTANTS,Appel FIED PUBLIC applicable limits of an insurance (Defendant). lee chapter applies which this an issued No. 92-73. insurer, if the insurer is an insolvent insurer and the claimant or insured is a Supreme Wyoming. Court of resident this state at the time of the *15 insured the property event or from which Dec. the claim permanently arises is located in state, but “covered claim” does not include:
(A) Any reinsurer, amount due in-
surer, pool underwriting subrogation
association as recoveries * * otherwise; *. appropriate language para-
If the apply
phrased proposi- to this case the
tion is: Eigenberber having
Christine A. a claim Company Allstate Insurance un-
der an insurance poli- other than a
cy Company of Laramie Insurance claim,
is also a covered shall first ex-
haust her under the Allstate Insur- Company policy. Any
ance pay- amount chap-
able on a covered claim under this
ter shall be reduced the amount of
any recovery under the Allstate Insur- policy.
I am permit satisfied that
language application to control the
statute is fallacious both as a matter of
correct law and as a matter of judgment
would reverse the of the trial
court.