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Carpenter Technology Corp. v. Admiral Insurance Co.6/17/2002
onal system designed to counteract the problems created by insolvent insurers. The irony is that, under the guise of protecting New Jersey's interests, the Court's disposition limits the amount of insurance monies available to remediate the environmental damage to four New Jersey sites. Our land and water, more so than Pennsylvania's, are at risk in this case. Because I do not subscribe to the Court's approach or to the statutory interpretation on which it is based, I respectfully dissent.
I.
I begin my analysis, as I must, by reviewing the text of the New Jersey Property-Liability Insurance Guaranty Association Act, N.J.S.A. 17:30A-1 to -20 (Act), which provides in relevant part: a. Any person having a covered claim which may be recovered from more than one insurance guaranty association or its equivalent shall seek recovery first from the association of the place of residence of the insured at the time of the insured event except that if it is a first party claim for damage to property with a permanent location, he shall seek recovery first from the association of the location of the property. Any recovery under this act shall be reduced by the amount of recovery from any other insurance guaranty association or its equivalent. However, if recovery is denied or deferred by the association, a person may proceed to recover from any other insurance guaranty association or its equivalent from which recovery may be legally sought. b. Any person having a claim against an insurer, whether or not the insurer is a member insurer, under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required to exhaust first his right under that other policy. An amount payable on a covered claim . . . shall be reduced by the amount of recovery under any such insurance policy. [N.J.S.A. 17:30A-12.]
In adopting that language, the Legislature declared its goal unequivocally:
The purpose of this act is to provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay payment, to avoid financial loss to claimants or policyholders because of the insolvency of an insurer; to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers. [N.J.S.A. 17:30A-2a.]
The statute generally tracks the Post-Assessment Property and Liability Insurance Guaranty Model Act (Model Act), which was drafted by the National Association of Insurance Commissioners "as a means of allocating the risk of insolvent insurers equitably among the several states." American Employers' Ins. Co. v. Elf Atochem, 157 N.J. 580, 587 (1999). As written, the statute contains two differences from the Model Act. First, it eliminates the reference to workers' compensation. Second, the New Jersey Act provides that if a claimant is "denied or deferred" by the first guaranty association approached, the claimant "may proceed to recover from any other insurance guaranty association or its equivalent from which recovery may be legally sought." N.J.S.A. 17:30A-12a.
By enacting a statute similar to the Model Act, New Jersey has joined the majority of states in establishing a national system to ameliorate the losses to insureds that result when property and liability carriers fail.
II.
Against that statutory backdrop, we are called on to interpret the "amount of recovery" language found at N.J.S.A. 17:30A-12a. A preeminent principle of our jurisprudence is that a court should not presume that in enacting a statute the Legislature intended something other than what it expressed by way of it
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