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Wyoming Ins. Guar. v. Allstate Indem.12/21/1992
ed above, gave additional thought to legislative intent:
Intending the Association to be a stop-gap measure, the legislature provided that a claimant who could seek recovery under a policy other than that of the insolvent insurer must first exhaust his right under such policy. 40 P.S. § 1701.503(a). This provision reflects the legislature's intent that fiscally solvent insurers, which are contractually obligated to pay a claim, be the primary source of payment.
The Association's resources were not intended to be used unless the coverage provided by the solvent insurers was: (1) less than that provided by the insolvent insurer, and (2) inadequate to cover the damages sustained by the claimant. The legislative scheme provided that the Association would be the last resort for payment of a claim.
Bethea, 548 A.2d at 1218 (emphasis added). See Hetzel, 244 Kan. 698, 772 P.2d 800 and 2A Ronald A. Anderson, Couch on Insurance 2d § 22:27, at 599 (Rev. ed. 1984).
An earlier California case, Ross, 142 Cal.App.3d 396, 191 Cal.Rptr. 99, involved an insolvent primary carrier and a solvent excess carrier. In reviewing the public policy considerations involved in the creation of the California Insurance Guaranty Association, the California court concluded:
In our view, CIGA [California Insurance Guaranty Association] was created for the protection of the public. Thus, when a secondary insurer is available in the event of an insolvent primary insurer, the secondary insurer should be responsible in the absence of specific language to the contrary. The secondary insurer has received a premium for the risk, and thus the secondary insurer, and not CIGA, should be responsible for the coverage of the loss.
Id. 191 Cal.Rptr. at 104. See also Palmer by Diacon, 779 P.2d at 64.
Recognizing the statutory context of existing Wyoming law and reflecting on Bethea and Ross as I read the Allstate policy in this case, I fail to find "specific language" in the Allstate policy which would serve to absolve Allstate from defending and paying the Eigenberger claim. With the restructured priorities of obligation, we change the state fund from an instrumentality to protect the public, 19A Appleman, supra, § 10801 at 367, into a fund to underwrite solvent carriers from natural business risks of insolvency of other carriers. The covered claimants should not be other carriers with established liability. Palmer by Diacon, 239 Mont. 78, 779 P.2d 61.
This court prioritizes two statutes to determine state fund sequential obligation. In simplest terms, if Wyo. Stat. § 26-31-106(a)(ii) is applied first (as it is by this majority), then the initial requirement of "exhaustion" is conveniently eliminated. WIGA was established as a "source of last resort" — and, by definition, there can be nothing left to "exhaust" (other than WIGA's finite resources) once you arrive at the "last resort." Herring, by majority decision, does not first exhaust her rights against her carrier, Allstate. Wyo. Stat. § 26-31-111(a). Thus, when WIGA is deemed a source of "collectible insurance" by a literal application of Wyo. Stat. § 26-31-106(a)(ii), the majority operates "to repeal or override" Wyo. Stat. § 26-31-111(a). Contrary to our well-established rules of statutory construction, this majority opinion does not read all of the related statutes in order "to ascertain legislative intent." Longfellow v. State, 803 P.2d 1383, 1387 (Wyo. 1991); see also West, 822 P.2d at 1272. On the other hand, it is possible to harmonize all of the statutory language and satisfy the legislative intent behind the Wyoming Insurance Guaranty Association Act if the procedural "exhaustion"
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