Nat'l Union Fire Ins. Co. v. Miss. Ins. Guar. Ass'n
| Docket Number: | 2007-FC-01981-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 09-04-2008 Opinion Author: DICKINSON, J. Holding: CERTIFIED QUESTION ANSWERED |
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| Additional Case Information: |
Topic: Insurance - “Other insurance” clause - Mississippi Insurance Guaranty Association Law - Section 83-23-115(1)(b) - Section 82-23-123(1) Judge(s) Concurring: SMITH, C.J., WALLER, P.J., CARLSON AND RANDOLPH, JJ.; EASLEY, J., (CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION). Judge(s) Concurring Separately: DIAZ, P.J., (CONCURS WITH SEPARATE WRITTEN OPINION) JOINED BY GRAVES, J.; EASLEY, J. (JOINS IN PART) Non Participating Judge(s): LAMAR, J. Nature of the Case: CIVIL - FEDERALLY CERTIFIED QUESTION |
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| Party Name: | Attorney Name: | |||
| Appellant: | NATIONAL UNION FIRE INSURANCE
COMPANY |
TODD BRITTON MURRAH |
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| Appellee: | MISSISSIPPI INSURANCE GUARANTY ASSOCIATION | CLIFFORD C. WHITNEY, III, R.E. PARKER, JR. |
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| Topic: | Insurance - “Other insurance” clause - Mississippi Insurance Guaranty Association Law - Section 83-23-115(1)(b) - Section 82-23-123(1) |
| Summary of the Facts: | A patient sued her doctors, who were both covered under two insurance policies, one issued by Pennsylvania Hospital Indemnity Company which was the primary policy, and the other by National Union Fire Insurance Company. After assuming the legal defense of both doctors and then settling with one, PHICO was declared insolvent. The Mississippi Insurance Guaranty Association immediately assumed the defense of the remaining doctor and then proceeded to evaluate its liability for the claim, concluding it had no duty to pay prior to exhaustion of coverage under the NUFIC policy. NUFIC disagreed and filed a declaratory judgment action in the United States District Court for Southern District of Mississippi. MIGA responded with a counterclaim for declaratory judgment. Both parties filed motions for summary judgment. The district court granted summary judgment to MIGA. NUFIC appealed, and the United States Court of Appeals for the Fifth Circuit has certified to the Court the question: Whether a solvent-carrier’s insurance policy, which provides an “other-insurance” clause stating it is in excess to any other primary insurance, must be exhausted under section 83-23-123, ahead of MIGA’s statutory coverage of the insolvent-carrier’s primary policy. |
| Summary of Opinion Analysis: | The NUFIC policy includes the following “other-insurance” provision: “A loss covered under this policy may also be covered under another policy you have. If it is, our policy will apply only in excess of such other coverage no matter how such other coverage is described. This clause will not apply to coverage which is expressly stated to apply in excess of this specific policy.” NUFIC argues that – because MIGA stands in the shoes of PHICO – this provision relieves it of any duty to pay the claim until benefits under the PHICO policy are paid by MIGA. MIGA’s duties and responsibilities are strictly controlled by statute. Pursuant to the provisions of the Mississippi Insurance Guaranty Association Law, sections 83-23-101 to -235, MIGA’s obligation to stand in the shoes of PHICO under section 83-23-115(1)(b) is subject to the limitations and qualifications found within the other statutes in the Mississippi Insurance Guaranty Association Law, in which is found section 82-23-123(1), which, in effect, eliminates from MIGA’s statutory guaranty any obligation to pay a claim prior to the exhaustion of all other insurance, other than coverage under true excess policies. Thus, the answer to the certified question is that a solvent carrier’s insurance policy which is not a true excess policy, and which provides an “other insurance” clause stating it is in excess to any other primary insurance, must nevertheless be exhausted prior to MIGA’s statutory duty to provide coverage under an insolvent-carrier’s primary policy. |
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