 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Clark Equipment Co. v. Arizona Property and Casualty Insurance Guaranty Fund2/11/1997
behalf of the insured all sums, as more fully defined by the term ultimate net loss, for which the insured shall become obligated to pay by reason of liability . . . arising out of personal injury." "Ultimate net loss" is "the amount of the principal sum . . . actually paid or payable in cash in the settlement or satisfaction of claims for which the insured is liable." The policy further provides that Integrity " shall in addition to the amount of ultimate net loss payable. . . defend any suit against the insured seeking damages on account of personal injury." (Emphasis added.)
Here, the claim that is within the coverage of the Integrity policy, termed the "covered claim" by A.R.S. section 20-661(3), is one for which Clark has "become obligated to pay by reason of liability . . . arising out of personal injury ." The settlement amounts for the Chavez and Dossey claims fit within this category. But under the policy, and "in addition to" the settlement amounts for "ultimate net loss," Integrity has the obligation to "defend any suit against [Clark] seeking damages on account of personal injury ." Because A.R.S. section 20-667(C) requires the Fund to assume all "duties and obligations" of Integrity, including the duty and obligation to defend Clark, we conclude that the Fund's obligation to pay Clark's defense costs is in addition to the $99,900.00 liability cap set forth in A.R.S. section 20-667(B).
The Dissent would resolve this issue differently by finding that A.R.S. section 20-661(3) requires that post-insolvency defense costs incurred by the insured be part of the covered claim. That statute provides:
"Covered claim" means an unpaid claim, including one for unearned premium, which arises out of and is within the coverage of an insurance policy to which this article applies . . . . Covered claim does not include any amount due any reinsurer, insurer, insurance pool or underwriting association as subrogation recoveries or otherwise nor shall it include any obligations of the insolvent insurer arising out of any reinsurance contracts nor shall it include attorney's fees or adjustment expenses incurred prior to the determination of insolvency.
The Dissent reasons that, since pre-insolvency attorneys' fees are specifically excluded from the covered claim, post-insolvency fees must necessarily be included. We, however, do not believe that the statute requires that result.
When interpreting a statute, the primary objective is to "give effect to the legislative intent." State v. Superior Court, 183 Ariz. 462, 464, 904 P.2d 1286, 1288 (App. 1995). Where there is no explicit statutory language, we "look to other indicia of legislative intent." Id. Accordingly, since A.R.S. section 20-661(3) neither expressly includes nor excludes post-insolvency defense costs as part of the covered claim, we must consider the "subject matter, effects, consequences, and reason and spirit" of the law. Id.
The purpose of the Fund is to assume the liability of insolvent insurers. See Betancourt, 170 Ariz. at 298, 823 P.2d at 1306. The Department of Insurance has stated that the Fund is intended to "protect Arizona residents" who have claims against an insolvent insurer. The categories that A.R.S. section 20-661(3) excludes as not being part of a covered claim, such as pre-insolvency attorneys' fees, are expenses of an insolvent insurer rather than an insured. That is consistent with the Fund's purpose to protect Arizona resident insureds, who alone may file claims against the Fund. Conversely, the protection of insurers and those employed by them is not the purpose of the Fund.
Since pre-insolvency attorneys' fees are always outside of the Fund's control, i
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Arizona Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|