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Wyoming Ins. Guar. v. Allstate Indem.12/21/1992
o" and I strongly disagree.
The majority dismisses WIGA's appellate argument by characterizing it as relying "almost exclusively" upon "uninsured motorist" cases. Without discussion of or reference to the accumulated body of related case law and the wealth of other authority discussed by both sides in appellate briefing, the majority dismisses WIGA's argument by simply stating that the court agrees with Allstate that the uninsured motor vehicle statutes, rules, regulations and case law do not apply in this circumstance. Consequently, the majority summarily concludes that WIGA "furnishes a source of collectible insurance." By this linguistic adaptation, the majority elevates the "excess insurance over any other collectible insurance" clause in the Allstate policy in derogation of the statutory "exhaustion" provision in Wyo. Stat. § 26-31-111(a).
Although WIGA was enacted to provide a "last resort" source of insurance protection, the majority affirms that WIGA pays and Allstate does not. In this regard, the majority's statement that "WIGA was created to assure that a policy holder would be protected in the event of the insolvency of an insurer" is forgotten. (Emphasis added.) Allstate, a solvent insurance company paid by Herring to provide comprehensive liability insurance protection, ends up being the "protected" party as a result of this majority decision. By no stretch of the imagination does Allstate qualify as the "policy holder" that WIGA was created to protect from other-insurer insolvency. Ross v. Canadian Indem. Ins. Co., 142 Cal.App.3d 396, 191 Cal.Rptr. 99, 103 (1983) (quoting California Union Ins. Co. v. Central National Ins. Co., 117 Cal.App.3d 729, 734, 173 Cal.Rptr. 35 (1981)) ("`The Legislature chose to provide a limited form of protection for the public, not a fund for the protection of other insurance companies from the insolvencies of fellow members.'") (Emphasis in original.) See 19A John Alan Appleman & Jean Appleman, Insurance Law and Practice § 10801 (1982).
The real question presented is whether the state fund has been structured to be the insurance resource of last resort or a substitute for the primary carrier when the primary carrier becomes insolvent. This decision should be determined by clear statutory language and not interpretive application of insurance policy exclusion or priority terminology.
There can be no argument that at the time and place of this accident, the tort feasor, Herring, was insured by, and the victim, Eigenberger, was protected by, an insurance policy that was operational and included operator coverage: DOC — unowned vehicle clause, Allstate insurance policy No. 017-171-172, FC9-645479. Actually there were three insurance resources in effect at that time as a requirement of the financial responsibility law of Utah, where the Allstate policy was written, and of the state of Wyoming where the driver was engaged in operating a motor vehicle.
In describing these three coverages, it should be recognized that they are not necessarily supplementary in amount, but are always in priority order for application. This is not primary and excess insurance as we shall subsequently discuss. This is stages or levels of insurance. The first is vehicle insurance which, by operation of financial responsibility acts, insurance codes and uniform policy provisions, is primary if it exists and to the extent of its coverage. (This is, of course, assuming that the state does not have PIP as first party insurance which would always apply as a first level). See 8C John Alan Appleman & Jean Appleman, Insurance Law and Practice § 5102.65, at 511 (1981). The second level is the operator's cover
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