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Carpenter Technology Corp. v. Admiral Insurance Co.6/17/2002
s plain language. State v. Wright, 107 N.J. 488, 495 (1987). "A statute should be interpreted in accordance with its plain meaning if it is 'clear and unambiguous on its face and admits of only one interpretation.'" Bd. of Educ. of Neptune v. Neptune Township Educ. Ass'n, 144 N.J. 16, 25 (1996) (quoting State v. Butler, 89 N.J. 220, 226 (1982)).
When a statute is clear, "we need delve no deeper than the act's literal terms to divine the Legislature's intent." Butler, supra, 89 N.J. at 226.
Equally well-established is the corollary principle that the judiciary enjoys no fiat to rewrite a plainly-written enactment of the Legislature. State v. Afanador, 134 N.J. 162, 171 (1993) ("Absent any explicit indications of special meanings, the words used in a statute carry their ordinary and well-understood meanings."). Applying those standards, the Appellate Division reached the only possible conclusion regarding the meaning of "reduced by the amount of recovery." Nothing about that phrase is unclear or ambiguous. It means that a NJPLIGA payment is to be reduced by the amount a claimant actually receives from the other guaranty association.
Unlike the majority, I do not believe that enforcement of the Act's literal language will lead to an absurd result. The exposure of the guaranty association of one state can be distinct from the exposure of a secondary association in a different state, based on differences in the laws of those jurisdictions and in the specific provisions of their respective statutes. Thus, I can foresee that an association of first resort could have defenses to some but not all of a claimant's claims, thus warranting less than the maximum allowable recovery. After a claimant has recovered from one association and then approaches a second association, the set- off should be the sum that the claimant has received in the first state, not that state's statutory maximum.
The majority suggests that the "seek recovery first" language in N.J.S.A. 17:30A-12a, when read in concert with the "exhaust first" language in N.J.S.A. 17:30A-12b, evinces a Legislative desire to limit recovery in these circumstances.
I disagree. The "exhaust first" language appears solely within the context of a person having a claim under a policy "other than a policy of an insolvent insurer[,]" N.J.S.A. 17:30A-12b, which is not the case here. When the Legislature has employed a term in one place in a statute and excluded it in another, the term should not be implied where excluded. Higgins v. Pascack Valley Hosp., 158 N.J. 404, 419 (1999).
Policy exhaustion makes complete sense when private insurance is concerned. Without question, a claimant should be required to draw on sources of insurance for which premiums have been paid before tapping into a fund guaranteed or established by the State. See Kent M. Forney, Insurer Insolvencies and Guaranty Associations, 43 Drake L. Rev. 813, 825 (1995) ("This rule is a direct outgrowth of the philosophy underlying the [Model] Act that the guaranty association is to be the 'payer of last resort,' and other solvent insurers are not entitled to reduce their liability because of the insolvency."). In that regard, when the Legislature used "exhaust first" in one section of N.J.S.A. 17:30A-12 and not in the other, it intended to require exhaustion relative to other insurance carriers, not as between guaranty associations.
One state, Arizona, has adopted the majority's interpretation. It did so, however, by legislatively amending the Model Act to provide that a claimant "shall first exhaust coverage from the [guaranty] fund of the place of residence of the insured[.]" Ariz. Rev. Stat. Ann. ยง 20-673B (emphasis added). Tha
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