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Wyoming Ins. Guar. v. Allstate Indem.12/21/1992
n, 77 Md. App. 208, 549 A.2d 1157 (1988); Vokey v. Massachusetts Insurers Insolvency Fund, 381 Mass. 386, 409 N.E.2d 783 (1980); Wondra v. American Family Ins. Group, 432 N.W.2d 455 (Minn.App. 1988), overruled on other grounds sub nom. Garrick v. Northland Ins. Co., 469 N.W.2d 709 (Minn. 1991); State Farm Mut. Auto. Liability Ins. Co. v. Kiser, 168 N.J. Super. 230, 402 A.2d 952 (1979); Welch v. Armer, 776 P.2d 847 (Okla. 1989); Henninger v. Riley, 317 Pa. Super. 570, 464 A.2d 469 (1983); Sands v. Pennsylvania Ins. Guaranty Ass'n, 283 Pa. Super. 217, 423 A.2d 1224 (1980); and Virginia Property and Cas. Ins. Guar. Ass'n v. International Ins. Co., 238 Va. 702, 385 S.E.2d 614 (1989).
The UM cases demonstrate that application of benefits from the claimant's own carrier is required before the state fund becomes responsible. We move here to another stage: whether primary coverage on the operator of the offending vehicle should be applied before the state fund is faced with payment within the predicate exhaustion requirement provided by Wyo. Stat. § 26-31-111(a). Essentially, that question seems relatively simple under Wyo. Stat. § 26-31-111(a), as the statute being rephrased is, Herring, "[any person] having a claim against Allstate [an insurer] * * * shall first exhaust 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."
There is a most recent Oklahoma case involving a complex sequence of insolvencies which uses the majority rule in UM cases as compelling authority for required exhaustion. In Welch, 776 P.2d 847, the Oklahoma court had earlier adopted the under insured motorist majority rule. In the current case, Oglesby v. Liberty Mut. Ins. Co., 832 P.2d 834 (Okla. 1992), a claim against a third party's carrier on a products liability claim was the insurance policy exhaustion target of the guaranty fund. The Oklahoma court found a majority rule requiring exhaustion by citing ten cases. Id. at 843 n. 40. The court then held for worker's compensation offset and exhaustion purposes that the carrier for a third party products liability defendant must be first pursued before recovery from the guaranty fund was justified.
I find that approach and majority policy of exhaustion of "other available insurance" equally applicable here to the vehicle driver's own insurance policy under the existent DOC coverage. See also Paul G. Roberts, Note, Insurance Company Insolvencies and Insurance Guaranty Funds: A Look at the Nonduplication of Recovery Clause, 74 Iowa L.Rev. 927 (1989). I agree with the concept stated in Oglesby that this court may not read an exception into a statute not made by the legislature.
There is a triangular result which is created by this majority decision. At one corner point is Laramie Insurance Company with the automobile coverage and now insolvent. At the second corner is the driver coverage (DOC/UV), and at the third corner is UM first-party coverage. In determining priorities, it is a settled principle of law and policy language that if the vehicle is not insured, the driver's insurance is applied before the uninsured motorist first-party coverage will be applied. Furthermore, if UM coverage is available, it must be exhausted before the state fund assumes obligation. Since DOC coverage must be applied before UM applies, and UM exhaustion is required before the state fund accrues liability, it would consequently seem reasonable that even without UM coverage involvement, the DOC exhaustion would be required before the state fund obligation appears. In this case, since we have a bicyclist victim rather than a motor vehicle victim, sequences requ
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