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Wyoming Ins. Guar. v. Allstate Indem.12/21/1992
licy such as umbrella coverage from a policy with excess clauses which is the financial responsibility statutorily defined automobile insurance policy. That is what is involved here. See Washington Ins. Guar. Ass'n v. Guaranty Nat. Ins. Co., 685 F. Supp. 1160 (W.D.Wash. 1988), and its extensive discussion of 8A John Alan Appleman & Jean Appleman, Insurance Law and Practice § 4906, at 348 and § 4909, at 385 (1981). Both the business concept and the underlying insurance structure is entirely different between genuine excess insurance policies and the automobile policy with its three (or four) levels of applied coverage. There is not only a classical difference in insurance protection character, but also a statutory control in the latter case for significant aspects of policy provisions. See, e.g., Bartee v. R.T.C. Transp., Inc., 245 Kan. 499, 781 P.2d 1084 (1989), where the complexity of the case involved both financial responsibility statute driven policy requirements and concepts of umbrella and primary carrier coverage. See also Allstate Ins. Co. v. Fowler, 480 So.2d 1287 (Fla. 1985), regarding Financial Responsibility Act primacy criteria.
Having summarized my overall impressions, I now focus attention on several specific aspects of the majority opinion. First, although taken in context, there are three sentences in the majority opinion (which, in effect, embody the majority's attempt at legal analysis) that appear to be unrelated and, in my opinion, are unsubstantiated by available authority:
No person has a claim against the Allstate policy until the Laramie Insurance Company limits are first exhausted. The Allstate policy specifically provides that its insurance "with respect to a temporary substitute automobile or a non-owned automobile shall be excess insurance over any other collectible insurance." * * * The existence of WIGA makes the Laramie Insurance co-policy collectible.
I find these statements troublesome for several reasons. Initially, the statement that " o person has a claim against the Allstate policy until the Laramie Insurance Company limits are first exhausted" reverses the legislative intent of Wyo. Stat. § 26-31-111(a) and essentially eliminates the "other than" language in the statute. In effect, the majority improperly combines the procedural elements in the "exhaustion" statute set forth in Wyo. Stat. § 26-31-111(a) with the unrelated proposition that a solvent Laramie Insurance Company would have been the primary insurer in this case and, thus, would need to be "exhausted" before other sources of insurance might become available.
Second — and of far greater significance — the majority balances the "excess insurance over any other collectible insurance" language in the Allstate policy against the legislature's underlying purpose in creating WIGA. The majority concludes that Allstate should prevail because the insolvent Laramie Insurance Company policy is "collectible" from WIGA. In doing so, I believe that the majority fails to recognize what this court said in Allstate Ins. Co. v. Wyoming Ins. Dept., 672 P.2d 810, 816 (Wyo. 1983):
While the parties to an insurance contract have the right to embody in the policy such lawful terms as they wish * * * the insurance agreement must not conflict with pertinent statutes or public policy. McKay v. Equitable Life Assurance Society of the United States, Wyo. 421 P.2d 166 (1966); Cincinnati Insurance Company v. Mallon, 409 N.E.2d 1100 (Ind. App. 1980).
Without question, Wyoming's insurance statutes supersede any contradictory insurance policy language that acts to circumvent the statutes. Just as Allstate is prohibited from using terms in its insurance con
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