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Wyoming Ins. Guar. v. Allstate Indem.12/21/1992
sted" before WIGA "step in." A directly contrary result in a somewhat similar case can be found in Palmer by Diacon v. Montana Ins. Guar. Ass'n, 239 Mont. 78, 779 P.2d 61 (1989), where two funds were involved.
Since this is a case of first impression in Wyoming, consideration of how courts in other jurisdictions have construed substantively identical statutory and insurance policy provisions is helpful. For example, in Bethea v. Forbes, 519 Pa. 422, 548 A.2d 1215 (1988), several automobile accident victims joined in a personal injury action against the tortfeasor driver of a second car who had become uninsured because of his liability carrier's insolvency. In view of the insolvency, the plaintiffs also filed claims under the uninsured motorist provision in the non-tort-feasor driver's automobile insurance policy. In resolving Bethea, the Pennsylvania Supreme Court examined the nearly identical Pennsylvania versions of Wyo. Stat. §§ 26-31-106(a)(ii) and 26-31-111(a):
The insolvency of [the tort-feasor's insurance company] brought into operation the provisions of The Pennsylvania Insurance Guaranty Association Act ("Insurance Guaranty Act"), * * * of November 25, 1970, P.L. 716, as amended, 40 P.S. § 1701.101 et seq. That statute was enacted to give a measure of protection to policy holders and claimants who are faced with financial loss because of the insolvency of certain carriers of property and casualty insurance. Section 102(1) of the Act, 40 P.S. § 1701.102(1). To implement that purpose, the statute established the Pennsylvania Insurance Guaranty Association ("Association"), and charged it with the obligation of paying "covered claims" under property and casualty policies issued by insurers that become insolvent. Section 201 of the Act, 40 P.S. § 1701.201. The Association becomes a statutory insurer in place of the insolvent carrier to the extent of its obligations on covered claims. 40 P.S. § 1701.201(b)(1)(ii). [The functional equivalent of Wyo. Stat. § 26-31-106(a)(ii)] In that connection, the Association has "all rights, duties, and obligations of the insolvent insurer as if that insurer had not become insolvent." Id.
The Association's duty to pay claims is, of course, subject to conditions, not the least of which is the requirement set forth in section 503(a) [identical to the language in Wyo. Stat. § 26-31-111(a)] of the Act. That provision states the following:
"Non-duplication of recovery
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, shall first be required to exhaust his right under such policy. Any amount payable on a covered claim under this act shall be reduced by the amount of any recovery under such insurance policy."
40 P.S. § 1701.503(a) (emphasis added). In its general effect, the import of the first sentence in the above provision is clear: Even if a claim is one otherwise covered by the Insurance Guaranty Act, a person's right to obtain relief under the statute does not arise unless or until he has exhausted such rights as he has, with respect to the "covered claim," under an insurance policy other than the one issued by the insolvent. An obvious example of such a situation is where a person has been negligently injured in an automobile accident, and, being unable to obtain payment from the insolvent insurer of the tortfeasor, may look to the uninsured motorist provision in his own insurance policy or in some other applicable policy.
Bethea, 548 A.2d at 1216 (emphasis in original).
Justice Zappala, writing in concurrence with the Bethea majority opinion quot
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