Wyoming Ins. Guar. Ass'n v. Allstate Indem. Co.

• Decision Date: 21 December 1992
• Docket Number: No. 91-204,91-204
• Parties: WYOMING INSURANCE GUARANTY ASSOCIATION, Appellant (Plaintiff), v. ALLSTATE INDEMNITY COMPANY and Allstate Insurance Company, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 464

844 P.2d 464

WYOMING INSURANCE GUARANTY ASSOCIATION, Appellant (Plaintiff), v. ALLSTATE INDEMNITY COMPANY and Allstate Insurance Company, Appellees (Defendants).

No. 91-204.

Supreme Court of Wyoming.

Dec. 21, 1992.

Rehearing Denied Feb. 3, 1993.

Paul D. Schierer of Pence and MacMillan, Laramie, for appellant.

Robert G. Wright of Richards, Brandt, Miller & Nelson, Salt Lake City, UT, for appellees.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT ^* and GOLDEN, JJ.

CARDINE, Justice.

The Wyoming Insurance Guaranty Association (WIGA) was called upon to step into the shoes of Laramie Insurance Company by assuming the obligations of its automobile liability insurance policy when Laramie Insurance Company became insolvent. The vehicle involved in this accident was insured by Laramie Insurance Company. Ms. Herring was driving this non-owned vehicle with permission of the named insured. Ms. Herring was driving this non-owned vehicle with permission of the named insured. Ms. Herring was also an insured under a separate automobile liability insurance policy on an owned automobile with the appellee, Allstate Insurance Company (Allstate). WIGA sought to require Allstate to defend and indemnify in the lawsuit filed. Allstate refused. The district court entered judgment in favor of Allstate.

We affirm.

WIGA expounds this summary of the issues:

Did the trial court err in finding that Allstate Indemnity Company and Allstate Insurance Company (Allstate) was not the responsible insurer, not obligated to cover the loss in Eigenberger v. Herring and not required to indemnify the Wyoming Insurance Guaranty Association for sums paid in settlement and defense of that action?

Allstate restyles the issue with this query:

Did the trial court correctly rule that appellee Allstate Indemnity Company and Allstate Insurance Company ("Allstate") shoulders no obligation to indemnify the Wyoming Insurance Guaranty Association ("WIGA") for any liability, damages or expenses arising from the action entitled Christine A. Eigenberger v. Melina Herring, Civil No. 23150, in the Second Judicial District In and For Albany County, State of Wyoming?

The stipulated facts are:

The facts in this case are not in dispute. On or about August 31, 1989 at about 9:00 p.m., Melina Lee Herring was involved in an accident with Christine A. Eigenberger at the corner of Ninth Street and Ivinson Avenue, Laramie, Wyoming. Eigenberger was traveling north on Ninth Street on a bicycle when she entered the intersection. At the same time, Herring was traveling south on Ninth Street in an 1982 Buick Electra owned by F. Otto Bolln and Leslie Gay Bolln, residents of Douglas, Wyoming. Herring was a permissive user of the Bolln vehicle at the time of the accident. An accident occurred when Herring attempted to turn East onto Ivinson. The bicycle and vehicle collided.

Eigenberger filed a Complaint seeking $112,300.00 in damages from Herring in Civil Action No. 22844 in the District Court, Second Judicial District, County of Albany, State of Wyoming. A copy of the complaint is attached hereto as Exhibit "A" and incorporated herein by reference. Eigenberger's Complaint alleged that Herring was negligent in failing to yield the right of way to Eigenberger when Herring completed the left turn onto Ivinson, thereby causing the accident and injuries to Eigenberger. Herring filed an answer denying negligence and, alternatively, alleging comparative negligence.

At the time of the accident, the Bolln vehicle was insured by Laramie Insurance Company, Policy No. LPA 11921, with liability limits of $100,00.00 each person and $300,000.00 each accident. A copy of the insurance policy with declarations page is attached as Exhibit "B" and incorporated herein by reference. The Laramie Insurance Company was declared insolvent pursuant to Wyoming Statutes § 26-41-103(a)(iii) by a court of competent jurisdiction in Civil Action No. 22800, Second Judicial District, County of Albany, State of Wyoming on February 14, 1990. A copy of the Order Appointing Receiver and Directing Liquidation and Declaring Insolvency is attached hereto as Exhibit "C" and incorporated herein by reference. Pursuant to its statutory duty, Wyoming Statutes § 26-4-101 et seq., Plaintiff Wyoming Insurance Guarantee Association (hereinafter referred to as "WIGA") agreed to defend and indemnify Herring.

During the course of said defense, Plaintiff WIGA learned that Herring was insured under Allstate Policy No. 017-171-172, 10/25, FC9-645479 issued to John and Janet Herring with liability limits of $100,000.00 each person, $300,000.00 each occurrence. A copy of the insurance policy with declarations page is attached hereto as Exhibit "D" and incorporated herein by reference. WIGA sent notice of the suit to Allstate with a request that Allstate defend the action. Allstate declined. There is no issue regarding the adequacy or timeliness of the notice. WIGA first made its demand for $14,912.48 by letter dated September 10, 1990. A copy of said letter is attached hereto as Exhibit "E" and incorporated herein by reference.

Civil Action No. 22844 was settled prior to trial with a payment of $10,000.00 by WIGA to Eigenberger. A copy of the Release of All Claims and Order of Dismissal are attached hereto as Exhibits "F" and "G" respectively and incorporated herein by reference. WIGA incurred $4,912.48 as costs of defense. The settlement amount and attorney's fees paid to Pence and MacMillan by WIGA in defense of Civil Action No 22844 are reasonable. The sole issue to be determined is whether WIGA or Allstate was required to defend and pay the loss in Civil Action No. 22844. If Allstate was required to defend and pay, Judgment in the amount of $14,912.48 plus seven percent (7%) prejudgment interest from September 10, 1990 should be entered against Allstate. If WIGA was required to defend and pay, Plaintiff's Complaint should be dismissed.

WIGA was created to assure that a policy holder would be protected in the event of the insolvency of an insurer. W.S. 26-31-101, -117 (1983); 19A John A. Appleman, Insurance Law and Practice § 10801 (1982); 2A Ronald A. Anderson, Couch on Insurance 2d § 22:27 (Rev. ed. 1984). Operating funds are generated by member assessments. W.S. 26-31-107 (1983). The duties and powers of WIGA are set out in W.S. 26-31-106 (1983):

(a) The association shall:

(i) Be obligated to the extent of the covered claims existing prior to the determination of insolvency and arising within thirty (30) days after the determination of insolvency, or before the policy expiration date if less than thirty (30) days after the determination, or before the insured replaced the policy or causes its cancellation, if he does so within thirty (30) days of the determination, but the obligation includes only that amount of each covered claim which exceeds one hundred dollars ($100.00) and is less than one hundred thousand dollars ($100,000.00), except that the association:

(A) Shall pay the full amount of any covered claim arising out of a worker's compensation policy; and

(B) Is not obligated to a policyholder or claimant in an amount exceeding the insolvent insurer's obligation under the policy from which the claim arises.

(ii) Be deemed the insurer to the extent of its obligation of the covered claims and to that extent has all rights, duties and obligations of the insolvent insurer as if the insurer were not insolvent;

(iii) As provided in W.S. 26-31-107 assess insurers' amounts necessary to pay the association's obligations under paragraph (i) of this subsection, subsequent to an insolvency, the expenses of handling covered claims subsequent to an insolvency, the cost of examinations under W.S. 26-31-112 and any other expenses authorized by this chapter;

(iv) Investigate claims brought against the association and adjust, compromise, settle and pay covered claims to the extent of the association's obligation and deny all other claims;

(v) Notify any persons as the commissioner directs under W.S. 26-31-109(a)(iii);

(vi) Handle claims through its employees or through one (1) or more insurers or other persons designated as servicing facilities, whose voluntary accepted designation is subject to the commissioner's approval;

(vii) Reimburse each servicing facility for association obligations it pays and for expenses incurred while handling association claims; and

(viii) Pay any other association expenses authorized by this chapter.

(b) The association may:

(i) Appear in, defend and appeal any action on a covered claim or on a claim brought against the association;

(ii) Employ or retain any persons necessary to handle claims and perform other association duties;

(iii) Borrow funds necessary to effect the purposes of this chapter in accord with the plan of operation;

(iv) Sue or be sued;

(v) Negotiate and become a party to contracts necessary to carry out the purpose of this chapter;

(vi) Review settlements, releases and adjustments to which the insolvent insurer or its insureds were parties to determine the extent to which the settlements, releases and judgments may be properly contested;

(vii) Refund to the member insurers in proportion to the contribution of each member insurer, that amount by which the association's assets exceed its liabilities as the board of directors determines;

(viii) Perform any other acts necessary to carry out the purpose of this chapter. [emphasis added] Another provision of the act is also essential to resolution of the issues posed for our consideration, W.S. 26-31-111 (1983):

(a) Any person having a claim against an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall first exhaust his right under the policy. Any amount payable on a covered claim under this chapter shall be reduced by the amount of any recovery under the insurance policy. [emphasis added]

No person has a claim against the Allstate policy until the Laramie Insurance...