In re the Liquidation of Sussex Mutual Insurance
In re the Liquidation of Sussex Mutual Insurance
Opinion of the Court
The opinion of the court was delivered by
The Commissioner of Banking and Insurance, in the capacity of Liquidator of Sussex Mutual Insurance Company (Liquidator), appeals from the Chancery Division’s determination that two insurance companies for which Sussex Mutual Insurance Company (Sussex Mutual), now in liquidation, acted as reinsurer, National Casualty Company and National Casualty Company of America, Ltd. (referred to collectively as National Casualty) qualified for the category of priority in liquidation set forth in N.J.S.A. 17:30C-26c(4). The Chancery Judge rejected the Liquidator’s argument
The statutory provision at issue in this case is part of the regulatory scheme governing the liquidation of Sussex Mutual. In general, the statute has been referred to as part of the Uniform Insurers Liquidation Act (UILA), N.J.SA 17:30C-1 through -31.
Essentially, the Liquidator contends that the judge erred in overturning the administrative determination of Class 5 priority status for National Casualty because National Casualty is Sussex Mutual’s reinsured. The Liquidator asserts that N.J.SA. 17:30C-26c(4), enacted by L. 1979, c. 470, § 1, effective February 27,1980, was erroneously transcribed into the statute books,
Sussex Mutual was a property and casualty insurer that eventually began acting as a reinsurer of other insurance companies. In 1989 the Liquidator determined that Sussex Mutual was insolvent and the company was placed into rehabilitation. Ultimately, a liquidation order was issued on July 17, 1992. Thereafter, proofs of claims were submitted to the Liquidator, including claims by National Casualty, which it characterized as those of a “general creditor” or “other claimants” without claiming policyholder protection. Those claims were originally filed as Class 5 claims, and it was noted that Sussex Mutual’s assets were insufficient to pay any claims in that class.
As a result of the proceedings instituted by National Casualty in the Chancery Division the judge concluded that both the plain meaning and the legislative history of the 1979 amendments to N.J.S.A. 17:30C-26 by L. 1979, c. 470, indicated that the use of the word “insurers” in subsection c(4) was consistent with the legislative intent and that the term included insurers, such as National Casualty, who were reinsureds of the liquidated insurance company.
The Liquidator argues that the judge erred in overturning Class 5 claim priority for National Casualty because the Class 5 deter
I.
Although the determination of an administrative agency is entitled to deference where agency expertise is involved, see Mayflower Securities Co. v. Bureau of Securities, 64 N.J. 85, 92-93, 312 A.2d 497 (1973); In re Aetna Casualty Surety Co., 248 N.J.Super. 367, 376, 591 A.2d 631 (App.Div.), certif. denied, 126 N.J. 385, 599 A.2d 162 (1991), cert. denied, 502 U.S. 1121, 112 S.Ct. 1244, 117 L.Ed.2d 476 (1992), an agency’s interpretation with respect to a matter of statutory construction stands on a different footing. New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 575, 384 A.2d 795 (1978); Mayflower Securities Co. v. Bureau of Securities, supra, 64 N.J. at 93, 312 A.2d 497.
N.J.SA 17:30C-26, captioned “Priority of claims for compensation,” was amended by L. 1979, c. 470, § 1 (effective February 27, 1980) to add subsection c. Under the prior law (L. 1975, c. 113, § 26) the only priorities specified were those for administration expenses and employee compensation. Despite the claim of the Liquidator that the statute contains a technical error, our inquiry at oral argument indicated that to date no legislative initiative has been taken by the executive branch or the Legislature, including the Office of Legislative Services, to correct this supposed error. This provision was passed by the Legislature in 1979, and approved by the Governor in 1980. Moreover, the Department of
By virtue of the 1979 amendment the statute now provides five classes of priorities for distribution of a liquidated insurance company’s assets:
c. The priorities of distribution in a liquidation proceeding shall be in the following order:
(1) Expenses of administration;
(2) Compensation of employees as provided in subsection (a) of this section;
(3) Claims for taxes and debts due to Federal or any state or local government which are secured by liens perfected prior to the commencement of delinquency proceedings;
(4) Claims by policyholders, beneficiaries and insurers arising from and within the coverage of and not in excess of the applicable limits of insurance policies and insurance contracts issued by the company and liability claims against insurers which claims are within the coverage of and not in excess of the applicable limits of insurance policies and insurance contracts issued by the company and claims presented by the New Jersey Property-Liability Insurance Guaranty Association and claims presented by any similar organization in another state;
(5) All other claims.
[N.J.S.A 17:30C-26(c) (emphasis added).]
Although the record is meager, as is the legislative history, a reading of subsection c(4) nonetheless leads to the conclusion that National Casualty does not qualify for Class 4 priority because its claim here is that of a reinsured. Whether subsection c(4) is read literally to include “insurers” or read liberally to include “insureds” only, the legislative history and caselaw applying the UILA lead to the inescapable conclusion that reinsureds were not intended to be given the same priority status as primary policyholders and direct insureds.
The Chancery Judge in this case took the view that only legislative history demonstrating that a transcription error occurred would justify such judicial action. However, the question is whether National Casualty, a reinsured of Sussex Mutual, is entitled to Class 4 priority status, the same status afforded primary insureds and policyholders under N.J.S.A 17:S0C-26c(4). Determining whether National Casualty qualifies for Class 4 priority status requires examination of the textual construction of the provision, caselaw, legislation of other states, and legislative history.
A.
Textual interpretation is the starting point in statutory construction as the internal sense of the text provides a fundamental guide to whatvthe Legislature intended and indicates what it will be generally understood to have meant. Sutherland Statutory Construction, § 47.01 (5th ed. 1992). Thus, it has been said, “Justice should not be the handmaiden of grammar.” Value Oil Co. v. Town of Irvington, 152 N.J.Super. 354, 365, 377 A.2d 1225 (Law Div. 1977), aff'd, 164 N.J.Super. 419, 396 A.2d 1149 (App.Div. 1978), certif. denied, 79 N.J. 501, 401 A.2d 256 (1979).
National Casualty’s relationship to Sussex Mutual was as a reinsured, or ceding company.
When the literal impact of the text of a statute is inconsistent with the legislative meaning or leads to absurd results, a modification by the courts may be warranted. State v. Costagliola, 144 N.J.Super. 589, 598-599, 366 A.2d 738 (Cty.Ct.
As written, subsection c(4) applies to claims by “policyholders, beneficiaries, and insurers.” A guide to legislative intent is found in the context of the words with which they are associated. State v. Afanador, 134 N.J. 162, 172, 631 A.2d 946 (1993). This is embodied in a maxim of legislative intent, ie., noscitur a sociis, “known from its associates.” Ariston Airline & Catering Supply Co. v. Forbes, 211 N.J.Super. 472, 480-481, 511 A.2d 1278 (Law Div. 1986); Sutherland Statutory Construction, supra (§ 47.16). Significantly, in subsection c(4), “policyholders” and “beneficiaries” are both potential claimants identified by their relationship to the insolvent insurer. Assuming that “insurers” were also so identified, they can only be reinsurers of the insolvent company because e(4) expressly states that it applies to claims by insurers arising out of contracts of insurance with the insolvent insurer. While it is true that a reinsured is an insurer in the sense that it is also an insurance company, a reinsured’s relationship with the insolvent insurer is one of an insured and is inconsistent with the plain meaning of subsection e(4).
In like vein, subsection e(4) applies to claims “arising from ... insurance policies and insurance contracts issued by the company and liability claims against insurers ... and claims presented by [guaranty associations].” It is reasonable to assume that claims would arise from the insolvent company’s insurance policies and contracts, and from liability claims against insureds of the company. In contrast, “liability claims against insurers” is meaningless in this context and makes no literal sense. Hence, the internal sense of c(4) suggests technical error in the use of insurers in both instances, and suggests that “insureds” was intended. However, we base our decision upon the legal authority supporting the proposition that reinsureds are not granted the same protection as direct insureds. We leave correction and/or clarification of the statute to the Legislature and refrain from any judicial “amendment” to the statute. See Rollins Leasing v. Director of Taxation, 279 N.J.Super. 540, 551, 653 A.2d 1131 (App.Div. 1994) (“[A] court’s function is not to rewrite legislation, and it should not attempt to do so simply because the legislation does not comport with the court’s idea of how the statute should read.”). New Jersey’s 1947 Constitution allocates the writing of legislation to the Legislature, N.J. Const, art. IV, and interpretation of the laws to the Judiciary. N.J. Const, art. VI. See also N.J. Const. art. Ill (separation of powers). It is, of course, not for the courts to write or rewrite legislation. See Rollins Leasing v. Director of Taxation, supra, 279 N.J.Super. at 551, 653 A.2d 1131; Space v.
B.
Caselaw construing subsection c(4) is limited and not helpful. The only reported case found construing this subsection addressed the issue of whether surety bonds fell within the meaning of “insurance policies and insurance contracts.” That phrase is not at issue here. In re Integrity Insurance Co., 251 N.J.Super. 501, 598 A.2d 940 (Ch.Div. 1991).
Although construing another, superseded statute, Aetna Casualty and Surety Co. v. International Re-Insurance Corp., 117 N.J. Eq. 190, 175 A. 114 (Ch. 1934), is helpful. There it was held that a reinsured could not be classified as an insured for purposes of gaining access to a fund set aside for policyholders of insolvent insurance companies. Id. at 192-193, 175 A. 114. See also In re New Jersey Fidelity and Plate Glass Insurance Co., 15 N.J. Misc. 384, 191 A. 475 (Ch. 1937). In construing the former statute Aetna explained that the fundamental differences between an ordinary primary contract of insurance and a contract of reinsurance led to the conclusion that a reinsured was not entitled to the same protection provided direct policyholders. Aetna Casualty and Surety Co. v. International Re-Insurance Corp., supra, 117 N.J. Eq. at 202-203, 175 A. 114. The general public was protected by giving priority to policyholders, whereas contracts of reinsurance, between insurance companies, did not demand the same protection. Ibid. National Casualty characterizes Aetna and Fidelity as outdated cases and asserts that they are not claiming “policyholder” status, the category identified under the earlier statute, and assert that they are “insurers” under the current statute. Nonetheless, National Casualty does not address the underlying distinction between direct insureds and reinsureds. Aetna’s significance
If the Legislature had intended to contravene the settled policy enunciated in Aetna, and favor reinsureds along with policyholders and beneficiaries, it would have used the term reinsured not the somewhat ambiguous term “insurers,” which stands in stark contrast to the other terms “policyholders” and “beneficiaries.” It is also unlikely that such a change would have been made without any indication of the Legislature’s intent to make that change evident in pre-enactment history. “A statute should not be interpreted to change a longstanding rule or principle unless the statute manifests a clear intent to do so.” Deutch & Shur, P.C. v. Roth, 284 N.J.Super. 138,140, 663 A.2d 1373 (Law Div. 1995). See also Caldwell v. Rochelle Park, 135 N.J.Super. 66, 74, 342 A.2d 583 (Law Div. 1975) (presumption against legislative intent to alter existing law without clear indication).
Although Aetna is a 1934 decision, and there is little authority applying Aetna since enactment of the UILA, there is no authority contravening the policy announced in Aetna. National Casualty has not pointed to any contrary holding by any court in any jurisdiction, and only refers us to a passage from a treatise, Grayson S. Staring, Law of Reinsurance § 19:3[4] (1993). However, the passage referenced by National Casualty is not only unsupported by any cited authority, but the contrary principle is illustrated by the author with a citation to Foremost Life Insurance Co. v. Dep’t of Insurance, 274 Ind. 181, 409 N.E.2d 1092, 1097 (1980), a case where the statute, in the counterpart clause to subsection c(4), uses the word “insureds.” Although for the most part the out-of-state eases relied on by the Liquidator deal with other statutes and priorities for “policyholders” or “insureds” or “benefits under policies and for losses incurred,” not for “insurers,” those eases are pertinent and persuasive because they demonstrate the wide-spread and longstanding policy of distinguishing direct insureds from reinsureds for the purpose of determining priorities of claims against insolvent insurance companies.
C.
The Liquidator points to eleven other states or territories that have established a priority class for policyholders and insureds similar to that in subsection c(4), as the Liquidator urges it should be read, (Delaware, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, New Hampshire, Oklahoma, Puerto Rico, Rhode Island, and Wyoming), and eight states that have liquidation priority schemes with language substantially similar to New Jersey’s (Delaware, Illinois, Kentucky, Louisiana, Massachusetts, New
D.
The Chancery Judge relied on the absence from the available legislative history of any evidence that subsection c(4) was inaccurately transcribed. Other evidence, however, does indicate that “insureds” was intended instead of “insurers.”
On February 13, 1980, a Deputy Attorney General sent to an Assistant Governor’s Counsel a memorandum describing three insurance bills awaiting the Governor’s signature, including A-1115 of 1978. The priority for payment of claims in A-1115 was characterized as “similar to the priority of distribution set forth in the N.A.I.C. [National Association of Insurance Commissioners] Model Act.” In the N.A.I.C. Model Act, Class 3 corresponds to Class 4 in issue here. However, it uses different language, referring to “claims under policies for losses incurred,” rather than claims of policyholders or insureds.
III.
In sum, the absence of any support in caselaw or legislative history for National Casualty’s interpretation of subsection c(4), along with the infeasibility of its literal use of “insurers,” leads to the conclusion that the Liquidator properly consigned National Casualty to Class 5 priority status. National Casualty was not an
Reversed.
Although this statute is referred to as the UILA, actually only parts of it are so identified (parts of sections I, 4, and 5, and sections 15 through 23). N.J.S.A. 17:30C-23a. The priority provisions at issue in this case are similar to those found in the National Association of Insurance Commissioners Model Act.
The Assembly Bill, A-1115 of 1978, which amended NJ.S.A. 17:30C-26c(4), contains the identical language. Hence, any alleged error was in the drafting of the bill, not its transcription from the adopted bill into the statute.
The Guaranty Association was established pursuant to the New Jersey Property-Liability Insurance Guaranty Association Act, NJ.S.A. 17:30A-1 to -20. Its function includes protecting certain New Jersey resident policyholders and claimants of insolvent insurers. It also facilitates payment of any "covered claim,” the definition of which expressly excludes amounts due any reinsurer or insurer. NJ.S.A. 17:30A-5d.
As noted, the Liquidator is the Commissioner of the Department of Insurance (now the Department of Banking and Insurance).
Reinsurance is discussed in Francis v. United Jersey Bank, 87 N.J. 15, 22, 432 A.2d 814 (1981). See also N.J.S.A. 17:51B-2.
Del.Code Ann. tit. 18, § 5918(e) (1996); Ky.Rev.Stat. Ann. § 304.33-430(2) (Mitchie 1996); La.Rev.Stat. Ann. tit. 22, § 746(2) (West 1996); Md.Code Ann., Insurance § 9-227(c)(l); Mass. Gen. Laws Ann. Ch. 175, § 180F(4) (West 1996); R.I. Gen. Laws § 27-14.4-22(4) (1996).
A-l 115 of 1978 became L. 1979, c. 470, § 1, when approved on February 27, 1980.
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