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Wyoming Ins. Guar. v. Allstate Indem.12/21/1992
one policy of uninsured motorists insurance or is entitled to recover under more than one policy of uninsured motorists insurance, for which separate premiums have been paid, the extent of this coverage will be the combined coverages under all policies, and actual damages sustained by the insured will be recoverable to the full extent of the combined limits of all such policies. Such recovery, however, will not exceed the minimum requirements for coverage[ ] under Section 31-9-102 — W.S. 1977, as to all other policies except the primary policy. The primary policy shall be construed to mean that policy which provides the coverage for the insured automobile involved in the accident.
The parties agree that the claim at issue is a covered claim as defined in W.S. 26-31-103(a)(ii) (1983) and that WIGA had a general duty to pay the claim because the claim existed prior to the determination of insolvency. W.S. 26-31-106(a)(i). However, WIGA and Allstate disagree as to whether Allstate was required to defend and indemnify under the circumstances of this case.
Allstate contends its policy would have been written differently if it had intended its policy to apply in an instance such as this and that the uninsured motor vehicle statutes, rules and regulations, and case law do not apply in this circumstance. We agree. The policy included these provisions:
Part 1:
Allstate will pay for an insured all damages which the insured shall be legally obligated to pay because of:
1. bodily injury sustained by any person, and
2. injury to or destruction of property,
arising out of the ownership, maintenance or use, including loading and unloading, of the owned automobile or a non-owned automobile.
If there is other insurance
Allstate shall not be liable under this Part 1 for a greater proportion of any loss that the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or a non-owned automobile shall be excess insurance over any other collectible insurance.
Part 2:
4. Non-duplication of Benefits; Other Insurance. No eligible injured person shall recover duplicate benefits for the same elements of loss under this or any similar insurance. In the event the eligible injured person has other similar insurance available and applicable to the accident, the maximum recovery under all such insurance shall not exceed the amount which would have been payable under the provisions of the insurance providing the highest dollar limit, and Allstate shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this coverage and such other insurance.
The Allstate policy included "Uninsured Motorist Insurance." That section of the policy included:
3. "uninsured automobile" means:
(a) a motor vehicle with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same either h
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