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Wyoming Ins. Guar. v. Allstate Indem.12/21/1992
as denied coverage thereunder or is or becomes insolvent[.]
Section 26-31-106(a)(ii) provides that WIGA was deemed to be the insurer of the insured once Laramie Insurance Company became insolvent. The uninsured motor vehicle statutes, supplementing rules and regulations, and case law cited by WIGA would operate to repeal or override W.S. 26-31-106(a)(ii) if we were to give them the effect contended for by WIGA. The quoted provisions of the Allstate policy which provide coverage when the insured is driving a non-owned automobile apply only where there is no other collectible insurance. We hold that under the factual circumstance presented here W.S. 26-31-106(a)(ii) furnishes a source of collectible insurance.
Affirmed.
URBIGKIT, J., files a dissenting opinion in which THOMAS, J., joins.
THOMAS, J., files a separate dissenting opinion.
URBIGKIT, Justice, dissenting, with which THOMAS, Justice, joins.
I respectfully dissent.
The problem I have with the majority opinion is that it employs a selective application of statutory language in total disregard of the Wyoming State Legislature's intended purpose when it adopted the Wyoming Insurance Guaranty Association Act in 1971. Because it summarily concludes that the Wyoming Insurance Guaranty Association (WIGA) "step into the shoes" of the Laramie Insurance Company pursuant to Wyo. Stat. § 26-31-106(a)(ii) (1983), the majority derogates Wyo. Stat. § 26-31-111(a) (1983) while at the same time ignoring an extensive body of related case law and the underlying policy considerations which support a different result. Those statutory provisions state in part:
(a) The association shall:
(ii) Be deemed the insurer to the extent of its obligation of the covered claims and to that extent has all rights, duties and obligations of the insolvent insurer as if the insurer were not insolvent[.]
Wyo. Stat. § 26-31-106(a)(ii).
(a) Any person having a claim against an insurer under an insurance policy * * * 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.
Wyo. Stat. § 26-31-111(a).
To fully appreciate the path taken by the majority, a brief synopsis and critique of the majority opinion is in order. Following recitation of the appellate issues, stipulated facts, and statements concerning WIGA's purpose and source of operating funds, the majority quotes Wyo. Stat. § 26-31-106 (outlining WIGA's duties and powers) and the "exhaustion" provision in Wyo. Stat. § 26-31-111(a) ("Any person having a claim against an insurance policy * * * shall first exhaust his right under the policy.").
Next, the majority summarizes the dispositive basis for its decision — since this case involved a borrowed automobile — the Allstate Insurance Company (Allstate) policy only provides excess coverage "over any other collectible insurance." Further, the existence of WIGA makes the insolvent Laramie Insurance Company's policy "collectible" and Allstate thus had no obligation to defend or pay. In effect, the majority adopts Allstate's appellate argument in toto and without relying on any authority other than a literal application of Wyo. Stat. § 26-31-106(a)(ii) and the "other insurance" clause in the Allstate policy. The simple issue presented in this appeal is whether "drive other car" (DOC) coverage, in the case where the initial insurance carrier is insolvent, should be applied to a loss before the claimant's resort to the state guaranty fund is justified. The majority says "n
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