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Proios v. Bokeir12/27/1993
Eleftheria X. Proios appeals the trial court's order awarding her $72,733 for personal injuries. She argues that (1) the trial court did not have jurisdiction to grant offsets because the Washington Insurance Guaranty
Association (WIGA) was not a party, (2) the trial court erred in granting offsets because her claims under other insurance policies were not "covered claims", and (3) the trial court erred in granting offsets for payments made to her by King County Medical Blue Shield (KCMBS), in granting offsets for underinsured motorist (UIM) payments made by her own insurance carrier, and in granting offsets for personal injury protection (PIP) payments made to her by her own insurance carrier. We affirm.
On April 16, 1990, Proios was struck by a taxi while crossing the street. The driver of the taxi, Bokeir, and the owner, Alborz (collectively referred to as Bokeir) conceded that they were liable for Proios's injuries, and the only issue at trial was the amount of damages.
At the time of the accident, Bokeir had a $100,000 liability insurance policy with Universal Security Insurance Company (USIC). In October 1991, USIC was declared insolvent and, pursuant to RCW 48.32, WIGA took over USIC's obligation to defend and indemnify Bokeir.
Prior to trial, Proios's own insurance carrier, Allstate Insurance, paid her $10,000 in PIP benefits and $25,000 in UIM coverage. In addition, she received $4,222.82 in medical benefits from KCMBS.
On July 7, 1992, Proios moved to amend her complaint to add WIGA as an additional party. The trial court denied the motion. On July 10, 1992, Bokeir moved for summary judgment, claiming that he was entitled to offset the amounts that Allstate and KCMBS had paid to Proios (approximately $40,000) from any judgment against him. The trial court granted the motion with regard to the Allstate payments, but withheld judgment on the KCMBS payments pending the outcome of the trial. On August 21, 1992, the jury awarded Proios $110,000. The trial court granted offsets for the PIP payments, the UIM payments, and the KCMBS payments. Proios appeals.
We first consider whether the trial court had jurisdiction to grant offsets even though WIGA was not a party to the action.
In order to determine the question before it, a court must have jurisdiction over the subject matter of the action and over the parties. State v. Swanson, 16 Wash. App. 179, 189, 554 P.2d 364 (1976), review denied, 88 Wash. 2d 1014, cert. denied, 434 U.S. 967 (1977). Here, Proios argues that the trial court did not have jurisdiction to grant offsets because offsets can only be granted to WIGA, which was not a party to the action.
[1, 2] We find this argument unpersuasive. In Urban v. Loham, Ill. App. 3d , 592 N.E.2d 292 (1992), the court explained the function of an insurance guaranty fund in a personal injury action:
n insurance company, or the Fund in the case of an insolvent insurer, is not liable as the tortious wrongdoer. Rather, the insurer or the Fund merely stands ready, pursuant to the policy, to indemnify the tortfeasor for a loss.
Urban, 592 N.E.2d at 296 (citing Herriford v. Boyles, 193 Ill. App. 3d 947, 550 N.E.2d 654 (1990)). The court further stated: " he guaranty insurance fund statute does not contemplate an action directly against the Fund itself to determine a plaintiff's damages. Rather, a plaintiff's damages are determined as a collateral matter or in other proceedings." Urban, 592 N.E.2d at 296.
Although an insurance guaranty fund need not be an actual party to the
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