FLORIDA INS. GUARANTY ASSOC., INC. v. State Ex Rel. Department of Insurance

400 So. 2d 813
CourtDistrict Court of Appeal of Florida
DecidedJune 30, 1981
DocketZZ-130
StatusPublished
Cited by6 cases

This text of 400 So. 2d 813 (FLORIDA INS. GUARANTY ASSOC., INC. v. State Ex Rel. Department of Insurance) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
FLORIDA INS. GUARANTY ASSOC., INC. v. State Ex Rel. Department of Insurance, 400 So. 2d 813 (Fla. Ct. App. 1981).

Opinion

400 So.2d 813 (1981)

FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellant,
v.
STATE of Florida ex rel. the DEPARTMENT OF INSURANCE of the State of Florida, As Florida Receiver of Main Insurance Company, an Illinois Corporation, Appellees.

No. ZZ-130.

District Court of Appeal of Florida, First District.

June 30, 1981.

Marion R. Shepard and J. Stephen O'Hara, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellant.

Norman L. Miley, Jr., William T. Moore, John Reilly, Louis C. Bustamante of Helliwell, Melrose & DeWolf, Miami, for appellees.

LARRY G. SMITH, Judge.

Florida Insurance Guaranty Association, Inc. (FIGA) appeals an order appointing the Florida Department of Insurance as receiver of Main Insurance Company (Main), a foreign insurer domiciled in Illinois, and ordering liquidation of Main's assets located in Florida. The trial court's order of insolvency and liquidation is of concern to FIGA because the order triggered FIGA's statutory obligation to pay the covered claims of Main's Florida insureds and creditors under Sections 631.54(4), (5) and 631.57(1), Florida Statutes (1979).

FIGA's appeal presents for our determination the issue of whether the trial court's *814 order for liquidation of Main's assets located in Florida was within the statutory authority vested in the court under Chapter 631, Part I, Florida Statutes, the "Insurer's Rehabilitation and Liquidation Act" (IRLA). Resolution of this issue requires, initially, interpretation and construction particularly of Section 631.091, Florida Statutes. FIGA contends that the sole authority for an order of liquidation of a foreign insurer is found in Section 631.091, and that under this section a Florida court has no authority to order liquidation of a foreign insurer (such as Main) unless and until a receiver (or similar officer) has first been appointed in the insolvent insurer's domiciliary state (in this case — Illinois) "for the purpose of liquidating the business of such insurer." Section 631.091. Our reading of the statutes convinces us that FIGA's contention is correct, and since it is admitted by the parties that no order of liquidation has been issued in Illinois, the trial court's order under attack here was premature, and constituted error. We therefore reverse that portion of the trial court's order authorizing the Department to seize and liquidate all of Main's Florida assets. However, notwithstanding our reversal of this portion of the trial court's order, we question whether FIGA should be relieved of its statutory obligations to pay covered claims, and we remand for further consideration and ruling by the trial court on this point.

A few facts concerning the background of this litigation must be related. In January, 1977, a circuit court in Illinois entered an order appointing a domiciliary rehabilitator for Main. Shortly thereafter, the Florida Department of Insurance sought and was granted by the circuit court, Leon County, an order appointing it ancillary receiver of Main for purposes of conservation. During the next several years attempts were made by the domiciliary rehabilitator to rehabilitate Main, apparently without success. In the meantime, many Florida citizens who held final judgments against Main or had other claims were unable to obtain payment, and certain of Main's Florida insureds were unable to obtain representation by Main in actions brought against them. Several of these parties were allowed to intervene in the Florida court proceedings for the purpose of filing motions requesting that the trial court adjudicate Main insolvent. Subsequently, in October, 1980, the Department filed an application for an order to show cause, seeking an order appointing the Department as receiver for the purposes of liquidation. The Department alleged in its application, among other things, that Main had in Florida assets sufficient to warrant the appointment of a receiver for purposes of liquidation consisting of a deposit made under Section 624.411, Florida Statutes, with a book value of $312,000.00. Indications were that the Florida claims would far exceed this amount. After a hearing, the trial court entered an order finding Main insolvent under Section 631.011(5), Florida Statutes (1979), and appointing the Department as receiver of Main for purposes of liquidation.

Before proceeding with analysis of specific statutory provisions, we will refer to certain matters which we consider as part of the statutory context. The forced liquidation or reorganization of insurance companies doing business in several states presents unique problems which have been alleviated in some thirty-two states, to some extent, by the adoption in one form or another of the Uniform Insurers Liquidation Act.[1] An important feature of the Uniform Act as adopted in the several states is the enhancement of cooperation between the reciprocal states by provisions requiring that the Commissioner of Insurance or equivalent supervisory official be the receiver of a delinquent insurer. Section 631.011(2). The purpose of the Act is *815 to secure equal treatment for all creditors, wherever situated, of defunct or failing insurance companies. Springer v. Colburn, 162 So.2d 513 (Fla. 1964). In addition Florida, in common with some other states, has authorized the creation of a guaranty association (here FIGA, a non-profit corporation) as a mechanism for the protection of its own citizens against delay in payment and financial loss occasioned by the insolvency of an insurer. Section 631.511, Florida Statutes.[2] Funds for FIGA's payment of covered claims are raised by assessments levied by the Department against all "member insurers" (Section 631.54(6)) which are then remitted to and administered by FIGA's board of directors. Section 631.57(3)(a).

FIGA's liability for claims is governed by the statutes. Section 631.57(1), Florida Statutes, imposes the obligation upon FIGA to pay "covered claims," defined in Section 631.54(4) as claims arising out of insurance policies issued by an insolvent insurer. The term "insolvent insurer" is defined in Section 631.54(5), Florida Statutes (1979) as follows:

(5) "Insolvent insurer" means a member insurer authorized to transact insurance in this state, either at the time the policy was issued or when the insured event occurred, and against which an order of liquidation with a finding of insolvency has been entered by a court of competent jurisdiction if such order has become final by the exhaustion of appellate review. (Emphasis supplied)

The interconnection between the above statutory provision governing FIGA's liability for claims and the provisions of IRLA becomes immediately significant, because reference must be made to IRLA's provisions to learn how and under what circumstances an "order of liquidation" in connection with a finding of insolvency of a foreign insurer may be entered by a Florida court. It must be noted, first, that "Delinquency proceedings" pursuant to Chapter 631, filed in the name of the Department, "shall constitute the sole and exclusive method of liquidating ... an insurer, ..." Section 631.021(4).[3] Secondly, the sole ground for the entry by a Florida court of an order of liquidation as to a foreign insurer is contained in Section 631.091, which reads as follows:

631.091 Grounds for ancillary liquidation; foreign insurers. —

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