State v. AZ. PROPERTY & CAS. INS.

966 P.2d 557, 192 Ariz. 390
CourtCourt of Appeals of Arizona
DecidedAugust 27, 1998
Docket1 CA-CV 97-0488
StatusPublished

This text of 966 P.2d 557 (State v. AZ. PROPERTY & CAS. INS.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. AZ. PROPERTY & CAS. INS., 966 P.2d 557, 192 Ariz. 390 (Ark. Ct. App. 1998).

Opinion

966 P.2d 557 (1998)
192 Ariz. 390

STATE of Arizona, Plaintiff-Appellee,
v.
ARIZONA PROPERTY AND CASUALTY INSURANCE GUARANTY FUND, Defendant-Appellant.

No. 1 CA-CV 97-0488.

Court of Appeals of Arizona, Division 1, Department C.

August 27, 1998.

*558 Surrano & Massey, P.C. by Kenneth Januszewski, Charles J. Surrano Phoenix, for Defendant-Appellant.

LaMar & Grasso, P.C. by Steven A. LaMar, Clarisse R. McCormick, Scottsdale, for Plaintiff-Appellee.

EHRLICH, Judge.

¶ 1 This appeal presents the question whether the State of Arizona ("State") may sue the Arizona Property and Casualty Insurance Guaranty Fund ("Fund") when the Fund refuses to pay a claim after the State's insurer has become insolvent. We conclude that it may.

FACTS AND PROCEDURAL HISTORY

¶ 2 In 1983, the Arizona Department of Transportation ("ADOT") entered a contract with Ball, Ball & Brossamer ("BB & B"), a California corporation, for highway construction. As required by the contract, BB & B obtained a liability insurance policy naming the State and ADOT as insureds. The policy was issued by Mission National Insurance Company.

¶ 3 In 1984, several men were injured and two men died as the result of a construction accident,[1] and a lawsuit against the State was filed. Although Mission Insurance undertook the defense of the suit, it subsequently was placed in receivership in California and ordered not to expend further money either in defense or settlement of the claims against the State. The Arizona Department of Administration ("ADOA"), on behalf of ADOT, settled with the plaintiffs.

¶ 4 ADOA filed a notice of claim with the California Insurance Guaranty Association to recover the money to which it was entitled had its insurer not been placed in receivership; the claim was denied.[2] ADOA then filed a claim with the Fund because Mission Insurance was authorized to do business in Arizona; that claim also was denied. The State thus sought a declaratory judgment that the Fund was obligated to pay the claim.

¶ 5 The Fund defended on the basis that the suit was a case of the State seeking recovery from itself. The superior court disagreed. It entered summary judgment in favor of the State as follows in pertinent part:

1. The State of Arizona has standing to bring this lawsuit.
2. The State of Arizona was an insured under the Mission Insurance Policy and is officially a "resident" of this state.
3. Mission Insurance is insolvent.
4. The Arizona Guaranty Fund is responsible for the monies paid.

After formal entry of judgment, the Fund appealed.

DISCUSSION

¶ 6 The validity of the underlying claim is not being challenged. The Fund argues, as it did below, that the State cannot *559 sue the Fund because the Fund is a component of the State. The issue thus is one of statutory interpretation, a question of law which we consider de novo. State Compensation Fund v. Superior Court, 190 Ariz. 371, 374-75, 948 P.2d 499, 502-03 (App.1997).

¶ 7 The Fund was created by the legislature in 1970 to pay claims against insolvent insurers. ARIZ.REV.STAT. ANN. ("A.R.S.") §§ 20-661 et seq.; Arizona Prop. and Cas. Ins. Guar. Fund v. Helme, 153 Ariz. 129, 132, 735 P.2d 451, 454 (1987).[3] By design, it is separate and distinct in its operation. First, while it is "within the department of insurance," the Fund has a director and exercises its powers through a guaranty fund board of sufficient independence that the Fund may appear in court, borrow funds, sue and be sued, and negotiate and be a party to contracts. A.R.S. §§ 20-662 through 20-664. Second, the Fund's money comes not from general revenues but is collected from insurance companies doing business in Arizona, such as Mission Insurance, based on the amount of their in-state business. A.R.S. § 20-666. Third, as is consistent with the source of its money, the Fund is only "liable to the same extent that the insolvent insurer would have been liable under its policy." Arizona Prop. and Cas. Ins. Guar. Fund v. Herder, 156 Ariz. 203, 205, 751 P.2d 519, 521 (1988) (quoted in A.H. v. Ariz. Prop. and Cas. Ins. Guar. Fund, 189 Ariz. 378, 384, 943 P.2d 738, 744 (App.1997); Betancourt v. Ariz. Prop. and Cas. Ins. Fund, 170 Ariz. 296, 298, 823 P.2d 1304, 1306 (App.1991)); A.R.S. § 20-667. Thus it is responsible only for "covered claims," A.R.S. § 20-667, payment for which does not come from the general fund but is statutorily limited to money from the Fund. A.R.S. § 20-662(C) ("All costs, expenses and liabilities of the fund shall be paid by the fund and shall not be a general obligation of the state.").

¶ 8 The Fund asserts that the State may not make a claim against it because the State is neither a "person"[4] nor a resident of Arizona. It relies on two statutes for this argument:

Any person recovering pursuant to this article shall be deemed to have assigned his or her rights under the policy to the fund to the extent of his or her recovery from the fund. Every insured or claimant seeking the protection of this article shall cooperate with the fund to the same extent as such person would have been required to cooperate with the insolvent insurer. The fund shall have no cause of action against the insured of the insolvent insurer for any sums it has paid.

A.R.S. § 20-672(A) (emphasis added).

Any person having a claim which may be recovered under more than one insurance guaranty fund or its equivalent or who is insured under more than one policy, shall seek recovery first from the fund of the place of residence of the insured or, if it is a first-party claim for damage to property with a permanent location, from the fund of the location of the property, or shall first exhaust coverage under such other policy....

A.R.S. § 20-673(B)(emphasis added).

¶ 9 According to the Fund, the legislature has defined "person" not to include the State, citing A.R.S. section 1-215(26):

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Bluebook (online)
966 P.2d 557, 192 Ariz. 390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-az-property-cas-ins-arizctapp-1998.