Northwestern National Insurance Co. v. Kezer

812 P.2d 688, 14 Brief Times Rptr. 1565, 1990 Colo. App. LEXIS 361, 1990 WL 193747
CourtColorado Court of Appeals
DecidedDecember 6, 1990
DocketNo. 89CA1188
StatusPublished

This text of 812 P.2d 688 (Northwestern National Insurance Co. v. Kezer) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northwestern National Insurance Co. v. Kezer, 812 P.2d 688, 14 Brief Times Rptr. 1565, 1990 Colo. App. LEXIS 361, 1990 WL 193747 (Colo. Ct. App. 1990).

Opinion

Opinion by

Judge CRISWELL.

In delinquency proceedings under the Uniform Insurers Liquidation Act, § 10-3-501, et seq., C.R.S. (1987 Repl.Vol. 4A), the plaintiff, Northwestern National Insurance Co., appeals from the trial court’s declaratory judgment that denied preference under § 10-3-507(3)(c), C.R.S. (1987 Repl.Vol. 4A) to its claims against defendant, Robert D. Balzano, as the receiver for Aspen Indemnity Corp. (Aspen). We agree with the trial court that plaintiff’s claims are not entitled to preference and, therefore, affirm its judgment.

The trial court’s judgment was based upon the facts contained with a written stipulation of the parties. That stipulation disclosed the following:

Aspen was formed as a “captive” insurance company to provide liability and workers’ compensation insurance to a group of Caterpillar and other heavy equipment dealers. See § 10-6-101, et seq., C.R.S. (1987 Repl.Vol. 4A). Later, however, it was licensed under Colorado law as a multi-line fire, property, and casualty insurance company, and it began insuring property and casualty risks for parties unrelated to the members of the original group.

Later still, Aspen began to do business as a direct multi-line insurer in other states. However, because it was not licensed for such purpose in certain states, in order to do business in those states, it entered into an agreement with plaintiff and one of its subsidiaries, which were licensed in those states.

The basic agreement between the parties took the form of a “reinsurance” agreement. Under its terms, plaintiff acted as the primary insurer and issued its policies of insurance to the individual insureds. However, except for a small fee, all of the premiums charged for the policies were paid to Aspen which agreed to reinsure 100% of the risks assumed by plaintiff’s policies. In addition, Aspen formed a subsidiary corporation and plaintiff entered into an agency agreement with that corporation whereby it acted to place and to administer the policies issued.

All of the policies were issued in plaintiff’s name. According to the parties’ stipulation, each of them contained a provision that, upon payment under its terms, plaintiff would become subrogated to “any and all rights of the insured in reference to any and all payments it made.”

After Aspen was placed in liquidation and a receiver appointed, plaintiff paid various claims asserted under the policies issued pursuant to the reinsurance agreement with Aspen. It then sought reimbursement from Aspen’s receiver and asserted that its claims for reimbursement were entitled to the statutory preference described in § 10-3-507(3)(c).

Section 10-3-507(3) is a part of the Uniform Insurers Liquidation Act. That statute creates four general classes of claims, and it directs that the assets of the insol[690]*690vent insurer be distributed in accordance with the priorities established by it.

The third class of claims, which are to be paid after payment of the first two classes, are described in § 10-3-507(3)(c) as follows:

“Claims by policyholders, beneficiaries, and insureds, liability claims against insureds covered under insurance policies and insurance contracts issued by the Company, and claims of the Colorado insurance guaranty association and any similar organization in another state.... ” (emphasis added)

I.

Plaintiff first argues that it is entitled to have the claims asserted by it treated as class 3 claims either because it is entitled to an “equitable lien” upon Aspen’s assets or because it is an organization similar to an insurance guaranty association. We disagree.

A.

The statute classifying claims for preference purposes is both specific and comprehensive. It leaves no room for the judiciary to add to the type of claims to be preferred or to establish a method of preference not created by the statute.

Thus, even if we were to assume, arguendo, that the relationship between the plaintiff and Aspen might otherwise give rise to the judicial imposition of an equitable lien upon Aspen’s assets, such a claim, not being described by § 10-3-507(3)(c), would not be entitled to the preference mandated by that statute. See Cummings Wholesale Electric Co. v. Home Owners Insurance Co., 492 F.2d 268 (7th Cir.1974), cert, denied, 419 U.S. 883, 95 S.Ct. 149, 42 L.Ed.2d 123 (1974) (claim of policyholder against reinsurer not preferred claim); Knickerbocker Agency, Inc. v. Holz, 4 N.Y.2d 245, 173 N.Y.S.2d 602, 149 N.E.2d 885 (1958) (liquidation statute grants court exclusive jurisdiction over assets to exclusion of arbitrator’s authority under private contract with insolvent insurance company).

Nor are we persuaded to the contrary by any language employed by the court in Skandia American Reinsurance Corp. v. Barnes, 458 F.Supp. 13 (D.Colo.1978). The question presented there was whether proceeds from a reinsurer were to be paid directly to a California insurance guaranty association, in accord with a California statute, or to the Colorado domiciliary receiver under the Colorado statutes. Consistent with our analysis of the Colorado statute, the court held that, to allow the direct payment to the California association would be to subvert the underlying purpose of the Colorado preference statute. The court’s remark that the California’s association’s contentions could form the basis for the assertion of an equitable lien “to be adjudicated by the Colorado courts” indicated only that its decision did not preclude such an assertion; the comment expressed no opinion as to the validity of that assertion.

B.

We are also convinced that plaintiff’s claims are not entitled to a preference under the statute on the basis that it is an “organization” that is “similar” to the Colorado Insurance Guaranty Association (Association), as it asserts it is.

The Association is a non-profit, unincorporated, legal entity created by § 10-4-506, C.R.S. (1987 Repl.Vol. 4A). Under § 10-4-506, all insurance companies providing casualty, liability, or workers’ compensation insurance coverage must be members of the Association as a condition to transacting business in this state.

The Association’s purpose is to provide a mechanism for the payment of losses to claimants or policyholders when a primary insurer becomes insolvent. Section 10-4-502, C.R.S. (1987 Repl.Vol. 4A). This purpose is accomplished by having the Association assume the obligations of the insolvent insurer (subject to specified monetary limitations) and by assessing the insurer members a proportionate share of the amount of the claims paid and expenses incurred. Section 10-4-508, C.R.S. (1987 Repl.Vol. 4A). Specifically excluded from [691]*691the claims to be paid by the Association are those of any reinsurer or any insurer’s subrogated claim. Section 10-4-503(4), C.R.S. (1987 Repl.Vol. 4A). See Colonial Penn Insurance Co. v. Colorado Insurance Guaranty Ass’n, 799 P.2d 448 (Colo.App.1990).

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812 P.2d 688, 14 Brief Times Rptr. 1565, 1990 Colo. App. LEXIS 361, 1990 WL 193747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northwestern-national-insurance-co-v-kezer-coloctapp-1990.