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Wyoming Ins. Guar. v. Allstate Indem.12/21/1992
ther 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 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." (See p. 468, infra.) The existence of WIGA makes the Laramie Insurance co-policy collectible. Since this claim settled for less than the Laramie Insurance policy limits, there was never an obligation upon Allstate to defend or pay.
Because WIGA relies almost exclusively upon cases which are concerned with uninsured motorist coverage, we also consider here Wyoming's statutes which treat the subject of uninsured motor vehicle insurance coverage. W.S. 31-10-101, -104 (1989). W.S. 31-10-102 provides:
For purpose of coverage under W.S. 31-10-101, the term "uninsured motor vehicle," subject to the terms and conditions of the coverage, includes an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency.
Wyoming Insurance Regulations, ch. XXI-II, ยง 4 (1989), provides:
Section 4. "Other" Insurance Clauses. In all instances where the insured holds more than
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