Alabama Insurance Guaranty Ass'n v. Reliance Insurance Co. in Liquidation

100 A.3d 702, 2014 Pa. Commw. LEXIS 446

• Court: Commonwealth Court of Pennsylvania
• Decided: September 12, 2014
• Status: Published

Opinions

OPINION BY

Judge LEADBETTER.

We are called upon here to determine whether a claim against the Reliance estate in liquidation arises from a policy of direct insurance so as to be entitled to distribution from estate assets at priority level (b) or a policy of reinsurance entitled to priority level (e). The Liquidator assigned priority level (e) to the claim by the Alabama Insurance Guaranty Association (AIGA) for reimbursement of funds it paid to cover liability under a Reliance policy after the Alabama Supreme Court, in Alabama Insurance Guaranty Association v. Association of General Contractors Self-Insurer’s Fund, 80 So.3d 188 (Ala.2010), ruled that the claim arose under a policy for direct insurance. We conclude that the Liquidator did not err.

AIGA paid a claim by the Association of General Contractors Self-Insurer’s Fund (AGCSF) after the Alabama Supreme Court rejected AIGA’s argument that the claim against AIGA was not covered¹ under the applicable guaranty association statute (“Alabama GA Act”). Thereafter, AIGA sought reimbursement by submitting its proof of claim to the Liquidator for $1,206,156.00 plus post-judgment interest on the Alabama judgment in accord with Pa.R.A.P. 3781(a). After the Liquidator issued a notice of determination (NOD) that allowed the claim at priority level (e) for benefits paid under a reinsurance policy, and disallowed the claim for post-judgment interest, AIGA filed an objection in accordance with Pa.R.A.P. 3781(c). AIGA asserted that the entire amount, including the post judgment interest, should be allowed and assigned priority level (b).²

This Court assigned a referee, who opined that, in Pennsylvania, the characterization of the Reliance policy as either direct insurance or reinsurance is governed by the recent decision in CSAC Excess Insurance Authority v. Reliance Insurance Co., (Pa.Cmwlth., No. 1 REL 2007, filed November 8, 2012) (single judge opinion), aff'd, 621 Pa. 424, 78 A.3d 1058 (2013) (per curiam order) (holding that a policy nearly identical to that at issue in the present case was reinsurance). The referee rejected as waived AIGA’s argument that the Full Faith and Credit doctrine required adherence to the Alabama court’s ruling that the policy was for direct insurance. He also rejected as meritless AIGA’s contention that the Liquidator is estopped from challenging the Alabama court’s ruling. He further opined that, if a choice of law analysis is called for, Pennsylvania prevails, as the state with the greater interest in prioritizing the claim under its liquidation statute. The referee issued a recommended decision to sustain the NOD, concluding that the Liquidator properly found the coverage under the Reliance policy to be reinsurance. AIGA then filed the instant exceptions, reasserting the contentions made in its objection to the NOD.

AGCSF is a group self-insurer pursuant to Ala.Code § 25-5-9(a), a provision of the Alabama Workers’ Compensation Act that allows two or more employers to enter agreements to pool their liabilities for purposes of qualifying as self-insurers.³ As a self-insured employer group, AGCSF and other similar groups established the Alabama Reinsurance Trust Fund (Reinsurance Trust Fund) pursuant to AIa.Code § 25-5-9(b) to pool their liabilities for purposes of each group’s responsibility to provide excess coverage above the self-insured retention levels maintained by the individual employer groups.⁴ In an Indenture between the Reinsurance Trust Fund and the member groups, the Trust declared its purpose to be “providing excess coverage” above the respective self-insured retention of each group and promised to “issue an appropriate Policy to each” group. The Indenture further provided that: “the Trustees may, at their discretion, obtain appropriate insurance, or reinsurance, from such insurance carrier or carriers as [they] may from time to time deem appropriate.” Purchase of such reinsurance is specifically permitted under applicable regulations that state: “[specific and Aggregate Reinsurance is permitted for a reinsurance trust fund, but is not required.” Ala. Admin. Code r.480-5-1-.04(3)(b). Electing to purchase reinsurance, the Reinsurance Trust Fund entered into a contract entitled “Certificate of Reinsurance” (Certificate) pursuant to which Reliance agreed to indemnify the Trust for losses it incurred under its promises to cover the excess liability above each group’s self-insured retention.

After an injured employee’s claim exceeded AGCSF’s self-insured retention, AGCSF notified the Reinsurance Trust Fund, which filed a claim with Reliance⁵ and, in view of Reliance’s insolvency at the time, AGCSF also filed a claim with AIGA. After AIGA refused to pay the claim on the ground that it was for benefits under a reinsurance policy and thus, not a covered claim under the Alabama GA Act, AGCSF sued AIGA in the Circuit Court of Montgomery County seeking a declaration that AIGA was required to pay the claim.

The Alabama Circuit Court entered summary judgment in favor of AGCSF but failed to specify the amount of the judgment. AIGA appealed and the Supreme Court of Alabama remanded for a determination of the damages owed. On remand before the Circuit Court, the AIGA and AGCSF jointly stipulated to the amount of damages, filing a written stipulation that included a statement that is at odds with the terms of the Reliance Certificate issued to the Trust Fund. The stipulation indicates that Reliance issued a policy to the members of the Reinsurance Trust Fund calling for indemnity payment to individual members.⁶ The Circuit Court entered judgment for the stipulated amount. Thereafter, the Supreme Court of Alabama affirmed.

Starting with the generally accepted premise that reinsurance is coverage provided to an insurer, the Alabama Court concluded that neither AGCSF nor the Reinsurance Trust Fund is an insurer as that term is used in the Alabama GA Act or as the term is defined for purposes of Title 27 of the Alabama Code, which regulates the business of insurance generally. Thus, the Alabama Court concluded the coverage provided under the Reliance Certificate cannot be considered reinsurance. In support of its conclusion that the Certificate provided direct insurance covering AGCSF’s excess liability, the Aabama Court relied in part on the joint stipulation that the Reliance Certificate provided for direct reimbursement to AGCSF as an individual member of the Reinsurance Trust Fund. The Aabama Court rejected the premise that the certificate should be considered reinsurance in view of the provision in the Aa. Admin. Code r.480-5-3-.04(3)(b) authorizing a Reinsurance Trust to purchase reinsurance. Thus, the Aa-bama Court rejected the premise later relied upon by our court in CSAC. The Aa-bama Court opined that: “the fact that the Reliance policy might be classified as reinsurance does not mean it is not direct insurance for purposes of the Guaranty Act.” Ala. Ins. Guar. Ass’n, 80 So.3d 188, 209 n. 26. The Aabama Court further considered the implications of the directive in Aa. Admin. Code r.480-5-l-.04(2) that relieves a self-insurance group from the requirement to provide “other excess insurance” during the period it is a member of a reinsurance trust. The court said:

It might be inferred from the use of the term “other” in the [regulation] that the Department of Industrial Relations considers a [reinsurance trust] to be providing “excess insurance” to its member groups. Because the policy issued by the Reinsurance Trust Fund has not been offered in evidence, however, it is not possible to conclude whether that policy actually is “excess insurance.”

Id.

In the present case, AIGA contends that (1) the Liquidator is bound to follow the Aabama Court’s ruling on the basis of Full Faith and Credit doctrine or collateral estoppel, (2) alternatively, if a choice of law analysis is required, Aabama prevails with the most significant contacts and interests in the policy, and (3) the Aabama Court correctly characterized the coverage as direct insurance. In response, the Liquidator first asserts that (1) neither Full Faith and Credit doctrine nor collateral estoppel apply, (2) while no conflict' of law exists because the Aabama Court characterized the Certificate for purpose of GA liability as a covered claim and CSAC characterized a similar policy for purpose of setting a priority level on a claim, under a choice of law analysis, Pennsylvania prevails, and (3) the Certificate is for reinsurance under the ruling in CSAC.

The Aabama judgment against AIGA on a claim for guaranty association coverage has no binding effect on the Liquidator’s determination as to priority of distribution from the Reliance estate.⁷ With respect to Full Faith and Credit, our Supreme Court has explained:

The United States Constitution requires that full faith and credit “shall be given in each State ... to the judicial [proceedings of every other State.” U.S. Const. Art. IV, § 1. The Full Faith and Credit Clause thus precludes a party from attacking collaterally a judgment of one state by attempting to re-litigate the underlying dispute resolved by that judgment in another state. Thus, full faith and credit typically requires that a state give a judgment the same res judi-cata effect the judgment would have been afforded in the state in which it was rendered. Thompson v. Thompson, 484 U.S. 174, 180, 108 S.Ct. 513, 517, 98 L.Ed.2d 512 (1988); Durfee v. Duke, 375 U.S. 106, 109, 84 S.Ct. 242, 244, 11 L.Ed.2d 186 (1963).

Wilkes v. Phoenix Home Life Mutual Ins. Co., 587 Pa. 590, 607, 902 A.2d 366, 375-6 (2006) (emphasis added). The Liquidator’s argument does not present any attack on the Alabama judgment requiring AIGA to pay AGCSF. Rather, AIGA attempts to argue that Full Faith and Credit requires that this court is bound by all the underlying factual and legal conclusions of the Alabama Court. We disagree. Because the Full Faith and Credit Clause concerns itself with judgments, it would appear clear that our Supreme Court in Wilkes was referring to technical res judicata, or claim preclusion and not to collateral es-toppel, or issue preclusion.

At all events, AIGA relies on both Full Faith and Credit and collateral estop-pel, but neither doctrine applies here. As this court noted in J.S. v. Bethlehem Area School District, 794 A.2d 936 (Pa.Cmwlth.2002):

Res judicata encompasses two related, yet distinct principles: technical res ju-dicata and collateral estoppel. Technical res judicata provides that where a final judgment on the merits exists, a future lawsuit on the same cause of action is precluded. Collateral estoppel acts to foreclose litigation in a subsequent action where issues of law or fact were actually litigated and necessary to a previous final judgment.

Technical res judicata requires the coalescence of four factors: (1) identity of the thing sued upon or for; (2) identity of the causes of action; (3) identity of the persons or parties to the action; and (4) identity of the quality or capacity of the parties suing or being sued. Res judicata applies to claims that were actually litigated as well as those matters that should have been litigated. Generally, causes of action are identical when the subject matter and the ultimate issues are the same in both the old and new proceedings.

Similarly, collateral estoppel bars a subsequent lawsuit where (1) an issue decided in a prior action is identical to one presented in a later action, (2) the prior action resulted in a final judgment on the merits, (3) the party against whom collateral estoppel is asserted was a party to the prior action, or is in privity with a party to the prior action, and (4), the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action.

Bethlehem Area School District, 794 A.2d at 939 (citations omitted). Alabama law is not to the contrary. See Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 726 (Ala.1990). The Alabama decision can have no preclusive effect on the Liquidator, who was not a party or in privity⁸ with a party in that litigation, which involved a different cause of action, and thus neither Full Faith and Credit nor collateral estoppel requires that this court adopt the Alabama Court’s characterization of the Reliance policy as direct insurance.

Furthermore, the present case does not require a choice of law determination. The law applied to decide what constitutes a covered claim under the Alabama GA Act is not in conflict with the law applicable to characterizing the policy for purpose of determining priority level for distribution from the liquidation estate. As the Alabama Court observed, the characterization of the policy may differ depending on the context in which the issue arises. Ala. Ins. Guar. Ass’n, 80 So.3d 188, 209 n. 26 (“the fact that the Reliance policy might be classified as reinsurance does not mean it is not direct insurance for purposes of the Guaranty Act.”).

The policy at issue here is reinsurance pursuant to our rationale in CSAC. In its material characteristics, it is essentially identical to the policy we viewed as reinsurance in CSAC. In CSAC, our court summarized those characteristics, as follows:

CSAC agreed to pay claims on behalf of its members in exchange for a premium. It then contracted with Reliance for 100% indemnity of liability to its members in exchange for a ceding commission. The parties referred to the arrangement as insurance and reinsur-anee, the contracts function as such and a specific statutory authorization establishes that while not considered an insurer for certain purposes, CSAC could purchase reinsurance and thus function as an insurer for this purpose nonetheless.

CSAC, slip op. at 3.

In the present case, the Trust Fund agreed to pay the excess liability of the member groups in exchange for a premium. Section 2.01 of the Trust Indenture states:

The Trust is intended to serve as a vehicle for the pooling of liabilities of the Participating Funds [i.e. member groups] ... so as to provide the Participating Funds with excess coverage above their respective self insured retention levels and in furtherance of such purpose, the Trust shall (i) serve as a repository for operation and administration of amounts paid to the Trust by the Participating Funds in accordance with their respective Policies and the terms hereof and of claims made by the Participating Funds pursuant to their respective Policies and the terms hereof; ... (iii) provide for the payment of all liabilities, debts and obligations contingent or otherwise in respect of the Trust Fund; ... (vi) provide for the distribution to Participating Funds of their respective interests in all distributable property comprising the Trust Fund and of any amounts payable under the Policies; ....

Ex. B to AIGA’s Exceptions, therein specifically Ex. E-l to AGCSF’s motion for summary judgment in the Alabama Circuit Court (emphasis added). In Section 2.04(u) of the Indenture, the Trust Fund promised to issue “an appropriate Policy to each Participating Fund.” Such a “Policy” is defined in Section 1.01(c) of the Indenture as: “[a] schedule which is issued by the Trustees to a Participating Fund and which sets forth the rights with respect to excess coverage and the responsibilities (including, without limitation, premium commitments) of such Participating Fund.” In Section 4.01, the Indenture further provides that each member group shall make “contributions, or premium payments, to the Trust Fund required by the Policy issued to it....” While the record does not contain a policy or policies issued in accord ■with this provision of the Indenture,⁹ it can be inferred that policies were issued; such an inference is compelled by the fact that the Trust Fund procured from Reliance the Certificate of Reinsurance that explicitly reinsured the Trust Fund’s obligations under policies to its member groups.

The Reliance Certificate provides that:

In consideration of the payment of the reinsurance premium and subject to the terms and conditions contained herein, which are made part of this Certificate, Rebanee National Indemnity Company (hereinafter called the reinsurer) does hereby reinsure:

Company: Alabama Reinsurance Trust

Ex. B to AIGA’s Exceptions, therein specifically Ex. E-2 to AGCSF’s motion for summary judgment in the Alabama Circuit Court. The Certificate sets forth a particular liability limit for each member group in accord with the member’s Trust Fund policy and, specifically as to AGCSF, provides for 100% indemnification to the Trust Fund up to $1,000,000 in the event the Trust Fund incurred liability to AGCSF in excess of AGCSF’s self-insured retention of $400,000.

Nothing in the Reliance Certificate directs or permits payment directly to AGCSF; rather, it states: “Nothing contained herein shall in any manner create any obligation of the Reinsurer or establish any rights against the Reinsurer in favor of the direct insured of any third parties or any persons not parties to this Certificate of Reinsurance.” See General Condition 1 of the Certificate of Reinsurance, which appears in Ex. E-2 to AGCSF’s motion for summary judgment in the Alabama Circuit Court and is included in Ex. B to AIGA’s Exceptions.¹⁰ Reliance and the Reinsurance Trust Fund are the only parties to the Certificate.¹¹ Neither the joint stipulation before the Alabama Court by AIGA and AGCSF, who were not parties under the Certificate, nor the Affidavit of the Administrator of the Reinsurance Trust Fund, Boyd Kelly, indicating that the Certificate created direct obligations to AGCSF can alter the clear and explicit language to the contrary in the Certificate.¹²

Finally, under Alabama statute, the Trust Fund, while not regulated as an insurance company, was nevertheless authorized to purchase reinsurance. A self-insured employer group and an Alabama reinsurance trust fund may obtain reinsurance pursuant to regulations of the Alabama Department of Industrial Relations. See Ala. Admin. Code r. 480 — 5—B—.08(lB)(b) and r. 480 — 5—1—.04(3)(b). Just as we concluded in CSAC, the Trust Fund functioned as an excess insurer for the purpose of buying reinsurance.¹³ It entered into a contract with Reliance that both parties understood to be reinsurance and the contract itself operated as reinsurance. Under these circumstances, the Liquidator appropriately treated the claim arising under the Certificate as a priority level (e) because a claim against an insolvent insurer under a policy of reinsurance is a general creditor claim.

Aecordingly, we agree with the referee’s recommendation to sustain the Liquidator’s determination. AGCSF’s objections to the NOD are overruled and the NOD is approved.

ORDER

AND NOW, this 12th day of September, 2014, upon consideration of the Objector’s Exceptions to the Report and Recommendation of the Referee, it is hereby ORDERED that the Referee’s Report and Recommendation is APPROVED. Claimant’s Objections are Overruled and the Notice of Determination is hereby approved.

1 . In general, the various states, including Alabama, define a "covered claim" in a manner that excludes claims by insurers for coverage under a reinsurance policy. In Alabama, a “covered claim" is defined as:

An unpaid claim, including one of unearned premiums, which arises out of, and is within the coverage and not excess of, the applicable limits of an insurance policy to which this chapter applies, issued by an insurer, if such insurer becomes an insolvent insurer after January 1, 1981, and (i) the claimant or insured is a resident of this state at the time of the insured event; or (ii) the property from which the claim arises is permanently located in this state. "Covered claim” shall not include any amount due any reinsurer, insurer, insurance pool, self-insurer, or underwriting association, as subrogation recoveries or otherwise, nor shall "covered claim” include any first party claims by a “high net worth insured.”

Ala.Code § 27-42-5(6).

2 . AIGA has since abandoned its claim for post-judgment interest.

3 . The Alabama statute authorizes pooling of employers’ liabilities for qualification as self-insurers, providing as follows:

(a) The Director of Industrial Relations may, under such rules and regulations as he may prescribe, permit two or more employers, as such is defined in Section 25-5-1, to enter into agreements to pool their liabilities under this chapter for the purpose of qualifying as self-insurers under this chapter. Each employer member of such approved group shall be authorized to operate as a self-insurer under this chapter.

(b) Two or more employer groups as described in (a) above may enter into agreements to pool their liabilities under this chapter for the purpose of providing excess coverage above the self-insured retention levels maintained by the individual employer groups.

Ala.Code § 25-5-9.

4 .Regulations promulgated by the Alabama Department of Industrial Relations provide that group self-insurer funds, such as AGCSF, that become members of a reinsurance trust fund are not required to obtain excess insurance coverage in order to qualify as a self-insurer. Ala. Admin. Code r.480-5-1-04(2).

5 . In his NOD on the Trust Fund’s claim, the Liquidator assigned priority level (e), as a claim under a reinsurance policy. The Trust Fund did not assert an objection.

6 . The stipulation is entitled "Stipulation of Amount of Contractual Benefits Available under Reliance Insurance Policy NXC0151727 (the "Certificate of Reinsurance”).” The statement of particular importance is as follows:

3. Reliance National Indemnity Company issued a Policy of Insurance (Certificate

No. NXC 0151727) to the three members of the ART Fund on January 12, 1999. The certificate provides for reimbursement to the individual members of the ART Fund for "loss paid or payable as a result of: (A) Compensation and other benefit payments required of the Reassured [Insured] by the Workers Compensation Law of any state; ..." Under Certificate NXC0151727, AGCSF has a $400,000 self-insured retention. This Certificate also has a limit of $1 Million Dollar (sic). Accordingly, the current contractual benefits and potential future contractual benefits provided for the subject work related injury are as follows:

Total Benefits Paid as of 4/3/08: $907,734.96

Minus Self Insured Retention: -$400,000

Total Reimbursement Due: $507,734.96

Remainder of potential future coverage $492,265.04

See Stipulation included in "Exhibit B: Objection to Notice of Determination” attached to AIGA’s Exceptions.

7 . In view of the conclusion that the Full Faith and Credit argument is meritless, we are not concerned with the assertion that the argument was waived.

8 . In both states, "privity” is similarly defined. In Alabama, privity is "deemed to arise from (1) the relationship of one who is privy in blood, estate, or law; (2) the mutual or successive relationship to the same rights of property; or (3) an identity of interest in the subject matter of litigation. Thus, the existence of privity has generally been resolved on an ad hoc basis in which the circumstances determine whether a person should be bound by or entitled to the benefits of a judgment.” Stewart v. Brinley, 902 So.2d 1, 10-11 (Ala.2004). In Pennsylvania, “Privity is broadly defined as mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right.” Bergdoll v. Cortes, 858 A.2d 185, 197 n. 4 (Pa.Cmwlth.2004). AIGA and the Liquidator share no real interest; AIGA’s concern was only with its liability for payment of a covered claim and the Liquidator's is solely concerned with the priority level of its payment obligation under the policy. It is not enough to establish privity that AIGA and the Liquidator for their separate reasons would both like to see the policy called reinsurance rather than direct insurance. Privity is not established by the mere fact that persons may be interested in the same question or in proving the same facts. Bergdoll, 858 A.2d 185, 197 n. 4.

9 . Inexplicably the policy or policies issued by the Reinsurance Trust Fund to its member groups were not included in either the record before the Alabama Court or before this court.

10 . The dissent finds that the Certificate obligates Reliance to reimburse AGCSF based on a statement by Boyd Kelly in his affidavit and the stipulation of the parties in the Alabama litigation. D.O. at MHL-15-16. This finding is directly at odds with the language in the Certificate limiting Reliance’s obligation to indemnification of the Trust.

11 .The dissent states that: “The'Declarations Page’ of the Certificate states Reliance's agreement to provide excess coverage to each, of the three members of the Reinsurance Trust in differing amounts....” D.O. at MITL-5 (emphasis added). To the contrary, regarding coverage, the Declarations Page states:

Item V. COVERAGE: To indemnify the Company [Alabama Reinsurance Trust ] for loss paid or payable....

Item VII. REINSURER’S LIMIT OF LIABILITY: The Reinsurer agrees to indemnify the Company as follows: [thereafter providing differing amounts of coverage for different participating employer groups], (emphasis added).

12 . The dissent refers to the stipulation as that "of the parties.” D.O. at MHL-16. The stipulation is a product of agreement between AGCSF and AIGA entered into during the Alabama litigation. While a copy of the stipulation is among the copies of filings in the Alabama action that were submitted to the referee, no similar stipulation was entered in the present litigation between the present parties. Rather, the Liquidator vigorously disputes the accuracy of the stipulation.

13 . The dissent, in finding that the Certificate provides coverage similar to a "stop-loss” policy, says "the record shows that Reliance coded [the Certificate] as stop-loss.” D.O. at MHL-9. A handwritten notation, stating "Code to Stop Loss,” appears on a page that follows the copy of the Certificate attached as Exhibit Ex.-2 to AGCSF’s motion for summary judgment in the Alabama Circuit Court. It appears in the materials provided to the referee, which included the entire record certified from the Circuit Court to the Supreme Court of Alabama. See "Exhibit B; Objection to Notice of Determination” attached to AIGS’s Exceptions. The record before us contains no evidence regarding this particular page, i.e., who made the notation and what, if any, significance it has.