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Wyoming Ins. Guar. v. Allstate Indem.12/21/1992
age, DOC, or unowned vehicle (UV) coverage, which was actually provided in this case as primary insurance to the driver by Allstate.
The third insurance resource is the first party uninsured motorist coverage, which is not involved in this case since the victim was on a bicycle rather than in a motor vehicle, or perchance under some policies, riding a motorcycle.
The fourth insurance resource is WIGA. Consequently, the issue is whether the primary operator insurance, which is secondary in application, through the operator's policy DOC or UV clause, escapes liability by an assessed earlier priority against the state fund.
Some basic facts require recognition. The subject with which this case becomes embodied is required insurance policy provisions within the Financial Responsibility Acts. The Allstate policy covering the tort feasor driver was a Utah policy. No evidence was provided in the record that Allstate used an essentially different policy for Utah than it issues in Wyoming. We do not know how long the driver had been in Wyoming, but reason suggests her status was as a college student. The regularity with which the driver may have driven the F. Otto and Leslie Gay Bolln vehicle is also undisclosed. In any event, the Utah policy complies with both the Wyoming Financial Responsibility Act, Wyo. Stat. § 31-9-405 (1989) (in particular subsection (c) — operator's policy provision) and, although phrased differently, with the Utah provision, Utah Code Ann. §§ 41-12(a)-402 and 31A-22-303 (1988) (in particular § 31A-22-303(b)(ii), which establishes the same criteria).
The Allstate policy provided a broad unowned operator coverage, "coverage AA — arising out of the * * * use of a non owned vehicle" which included a relative as an insured. By definition, Herring clearly complied. Her status as an insured under the policy to require defense and indemnity in the action is not at issue. Controversy was confined to the claim that the state fund, in replacement of the insolvent carrier on the motor vehicle, had to provide liability coverage first. Allstate argues that since a first level solvent carrier did not exist, the state fund should appear in replacement as the insurance written on the vehicle while the state fund sought escape in the required exhaustion of other insurance criteria of the statutory provisions in Wyo. Stat. § 26-31-111(a).
The interesting facet of this litigation is the multitude of uninsured motorist cases (UM), and the dearth of DOC or UV clause cases.
A multitude of UM cases teach us, with the apparent exception of the state of Louisiana, Hickerson v. Protective Nat. Ins. Co. of Omaha, 383 So.2d 377 (La. 1980), that UM coverage benefits are first applied before guaranty fund exposure develops. The Kansas court in Hetzel v. Clarkin, 244 Kan. 698, 772 P.2d 800, 804 (1989) stated: "Louisiana appears to be the only reported jurisdiction which has not allowed the state guaranty insurance association credit for sums recovered from the plaintiff's own insurance [uninsured motorists coverage]." The court then recognized that: "The Louisiana Supreme Court's analysis in Hickerson, that uninsured motorist coverage was not contemplated in the `nonduplication' provision of its Guaranty Act, is not applicable to Kansas." Hetzel, 772 P.2d at 804. Other cases cited therein, or otherwise sustaining the same view, include King v. Jordan, 601 P.2d 273 (Alaska 1979); Witkowski v. Brown, 576 A.2d 669 (Del.Super. 1989); Spearman v. State Sec. Ins. Co., 57 Ill. App.3d 393, 14 Ill.Dec. 729, 372 N.E.2d 1008 (1978); Lucas v. Illinois Ins. Guaranty Fund, 52 Ill. App.3d 237, 10 Ill. Dec. 81, 367 N.E.2d 469 (1977); McMichael v. Robertso
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