Ulwick v. Massachusetts Insurers Insolvency Fund
Ulwick v. Massachusetts Insurers Insolvency Fund
Opinion of the Court
The defendant Massachusetts Insurers Insolvency Fund (Fund), a nonprofit unincorporated entity created by G. L. c. 175D, § 3 (1992 ed.), is obligated to pay covered claims against an insolvent insurer (up to $300,000 per claim) in place of the insolvent insurer. G. L. c. 175D, § 5 (1) (a) and (b) (1992 ed.). “[U nless the context clearly
The issue in this case is whether the plaintiffs claim against American Mutual Insurance Company (American Mutual), an insolvent insurer, is a “covered claim” within the meaning of G. L. c. 175D. A judge of the Superior Court decided on a statement of agreed facts that the claim was a covered claim and a judgment to that effect was entered. The Fund appealed and we transferred the case to this court on our own initiative. We affirm the judgment.
On September 26, 1986, a motor vehicle which was owned by the defendant Gulla, operated by the defendant Salvatore, and insured by American Mutual, struck a motorcycle that Ulwick was operating without fault in the course of his duties as a city of Melrose police officer. The American Mutual policy provided liability coverage of $100,000 per person for personal injuries. Since the accident, Melrose has paid Ulwick’s medical bills, an amount exceeding $100,000, as required by G. L. c. 41, § 100 (1992 ed.). Melrose has also paid more than $100,000 to Ulwick for lost wages pursuant to G. L. c. 41, § 11 IF (1992 ed.), which, in the circumstances of this case, requires a municipality to grant an incapacitated police officer leave without loss of pay. In addition, Ulwick has recovered $10,000 in uninsured motorist benefits under his own motor vehicle insurance policy.
After Ulwick commenced a tort action against Gulla and Salvatore, American Mutual’s insureds, American Mutual mailed a letter to Ulwick’s counsel offering to pay the full
The Fund first argues that, because Melrose has paid Ulwick in excess of $200,000, Ulwick’s claim against American Mutual is not an unpaid claim. We reject that argument. Ulwick’s claim against American Mutual is unpaid. A covered claim is one that “arises out of and is within the coverage of an insurance policy to which [c. 175D] applies.” G. L. c. 175D, § 1 (2). Ulwick’s claim against American Mutual is such a claim, and it is unpaid because American Mutual is insolvent. Ulwick’s claims against Melrose for reimbursement of medical expenses and payment of wages during his disability, however, did not arise out of American Mutual’s insurance policy. Instead, the claims against Mel-rose arose out of G. L. c. 41, §§ 100 and 11 IF. Melrose’s payments of the statutory claims against it therefore did not constitute payment of Ulwick’s claim against American Mutual arising out of an insurance policy. As Ulwick observes, “[i]t is the claim, not the injured person, which must be ‘unpaid’ in order that the claim be considered a ‘covered claim.’ ”
We proceed now to the Fund’s second argument. Of course, it is not enough that Ulwick’s claim is an unpaid claim arising out of and within the coverage of American Mutual’s policy. In order to be a covered claim, the claim also must “not include any amount due any reinsurer, insurer, insurance pool, or underwriting association.” G. L. c. 175D, § 1 (2). The Fund’s argument is that, if the court were to require the Fund to pay Ulwick, Melrose ultimately
The Fund’s argument fails because Melrose does not come within the definition of “insurer” set forth in G. L. c. 175D, § 1 (5), and the context does not require that Melrose be considered to be, or treated as, an insurer. Melrose is not a “person . . . who {a) writes any kind of insurance to which [c. 175D] applies . . . and (b) is licensed to transact insurance in the commonwealth.” See § 1 (5). In construing and applying G. L. c. 175D, then, we are not free to treat Mel-rose as an insurer, as the Fund urges us to do, unless the context of G. L. c. 175D, § 1 (2), “clearly requires” us to do so, which it does not.
Expansion of the explicit definition of the word “insurer” may be justified only when, and to the extent that, the context of the statute clearly requires such expansion in order that the statute be internally consistent and consistent with the obvious legislative objective in enacting it. Ferrari v. Toto, 9 Mass. App. Ct. 483 (1980), S.C., 383 Mass. 36 (1981), is instructive. In that case, the plaintiff was injured in an employment related motor vehicle accident. He received more than $35,000 in workers’ compensation benefits from an insurance company, that is, a company that wrote insurance and was licensed to transact insurance in the Commonwealth. At that time, however, workers’ compensation was exempted from the Fund. The Appeals Court reasoned that the workers’ compensation carrier did not come within the explicit definition of “insurer” in c. 175D, § 1 (5), because it did not write insurance “to which this chapter
None of the Appeals Court’s reasoning in Ferrari, 9 Mass. App. Ct. 483 (1980), subsequently adopted by this court in 383 Mass. 36 (1981), construing the word “insurer” in G. L. c. 175D, § 1 (2), as including all members of the insurance industry, is authority for the proposition that the context of G. L. c. 175D “clearly requires” that municipal employers, who are not members of the insurance industry, be treated as insurers in order that they not benefit from the Fund when a member of the insurance industry has been declared insolvent. The obvious legislative purpose in establishing the Fund, which is funded by the insurance industry, is to benefit members of the public, individuals and entities, including municipal employers like Melrose, which are outside the insurance industry, from losses due to the insolvency of a mem
Judgment affirmed.
The dissenting Justices argue that, because Melrose has transferred to Ulwick any right it may have had against the Fund pursuant to G. L. c. 41, §§ 100 and 11 IF, our holding results in an unnecessary windfall to Ulwick. It is worth noting that Ulwick will not receive a windfall unless he recovers more than enough to fairly compensate him not only for lost wages and medical expenses but also for past, present, and future pain and suffering. No such windfall has been established or seems likely. Furthermore, any windfall that occurs should be attributed to the largess of Mel-rose, which presumably transferred its claims against the Fund to its injured police officer in order to ensure that he would be made as whole as possible, not to the court’s opinion.
Dissenting Opinion
(dissenting, with whom Abrams and Greaney, JJ., join) The court’s opinion unnecessarily provides a windfall to Ulwick and unfairly burdens the motor vehicle insurance buying public with losses that should not be imposed on them.
The windfall is apparent. The city, which has paid Ulwick’s medical expenses and lost compensation in amounts exceeding $100,000, in each instance, has transferred its rights against the Fund to Ulwick. Ulwick, fully reimbursed to date and assured of the payment of his future medical expenses and future lost compensation, now may also assert a right to recover lost wages and medical expenses against the driver and owner of the vehicle covered by American Mutual. There is no logical reason why Ulwick should be compensated twice for these losses. The fact that the city of Mel-rose gave up any subrogation claim that it had against the Fund when it transferred its rights to Ulwick suggests that the city believed that it had no significant claim of subrogation against the Fund or American Mutual’s insureds. The city was correct in that judgment.
That view of the purpose of a broad remedial statute such as G. L. c. 175D is wholly consistent with our treatment of other such wide-reaching legislation. In a number of instances involving a statute of broad scope, we have “rejected the concept that limiting statutory words, literally read, were fully expressive of the applicable law.” Intriligator v. Boston, 395 Mass. 489, 491 (1985). See Mailhot v. Travelers Ins. Co., 375 Mass. 342, 348 (1978). Justice Kaplan, in his Mail-hot opinion, explained well why one should consider a section of such a statute in its relation to the legislation as a whole: “In so large a legislative enterprise, there are likely to be casual overstatements and understatements, half-answers, and gaps in the statutory provisions. As practice develops and the difficulties are revealed, the courts are called on to interweave the statute with decisions answering the difficulties and composing, as far as feasible and reasonable, an harmonious structure faithful to the basic designs and purposes of the Legislature.” Id. at 345. The court has failed to adhere to this wise understanding of its appropriate function.
My view that Melrose was an insurer within the legislative purpose results from the following further analysis. If a municipality were a workers’ compensation self-insurer for its non-police and non-fire department personnel, we would treat
The question then is whether the statutory protection that a municipality must afford to a police officer against lost wages and the cost of medical care also puts the municipality into the category of an insurer for the purposes of G. L. c. 175D, § 1 (5). In every practical sense, the municipality is an insurer against a police officer’s loss of wages and the cost of medical expenses in those circumstances where the respective reimbursement statutes apply. See G. L. c. 41, §§ 100, 11 IF. A municipality may, of course, protect itself by purchasing insurance against such losses. See Jones v. Wayland, 374 Mass. 249, 261-262 (1978). We have ruled that G. L. c. 41, § 11 IF, is a law similar to workers’ compensation. Wincek v. West Springfield, 399 Mass. 700, 703-704 (1987). An insurer under the workers’ compensation act includes a self-insurer and a municipality acting as a self-insurer. G. L. c. 152, § 1 (7) (1992 ed.). Again, the result should not turn on whether the city bought insurance. There is no reason in logic to make a distinction in the Fund’s obligation depending on whether the injured municipal employee worked as a police officer or firefighter or in some other municipal position, or whether the municipal employer purchased insurance against such losses or not.
Reference
- Full Case Name
- Wayne R. Ulwick vs. Massachusetts Insurers Insolvency Fund & Others
- Cited By
- 14 cases
- Status
- Published