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Carpenter Technology Corp. v. Admiral Insurance Co.6/17/2002
t language is distinct from the provision in the New Jersey Act. Its enactment in Arizona underscores that the Legislature, not the judiciary, is the appropriate body to effectuate the result reached here.
Additionally, the Court states that " s a matter of plain language, as well as common sense, 'recovery' implies all available recovery." Ante at __ (Slip op. at 11). Not so. First, if the language of the Act is plain, then the Court should not "imply" any greater meaning to the word "recovery." Second, the Court's determination that recovery means "all available" recovery is contrary to the normal usage of that term. In our usual parlance, "recovery" means " he amount finally collected, or the amount of judgment." Black's Law Dictionary 1147 (5th ed. 1979). Parties often recover less than the amount sought in a dispute. In any event, for the reasons already stated, the Court's interpretation of "recovery" is belied by the Act's unambiguous text.
Similarly, I cannot agree with the majority's contention that the "seek recovery first" language of the Act makes the guaranty association of first resort the "primary" insurer and the remaining associations the "excess" insurers, with all of the implications of those terms. The guaranty associations of the several states do not fall into the primary-excess paradigm relative to each other because there is no exhaustion provision with respect to them. On the contrary, as noted, the secondary associations are treated as excess insurers only in connection with insurance policies other than those of an insolvent insurer. That is why the other insurance policies must be exhausted before a guaranty association can be approached. See McMahon v. Caravan Refrigerated Cargo, 594 A.2d 349, 351 (Pa. Super. Ct.) (concluding that claimant need not obtain final adjudication of his rights against another state's insurance guaranty association as prerequisite to obtaining benefits from his home state's association), appeal denied, 600 A.2d 538 (1991).
If the Legislature did not intend the New Jersey association to fall into the primary-excess paradigm, then what purpose is served by having a claimant first seek recovery in a jurisdiction other than ours? The Act itself supplies the answer to that question. The Act directs a claimant to "seek recovery first from the association of the place of residence of the insured" or, in the case of a first- party claim for property damage, "from the association of the location of the property." N.J.S.A. 17:30A-12a. I discern from that language that the Legislature intended to establish an orderly process by which every claimant would know in advance where and how to assert a claim.
Given that the Act serves as our link to a national claims system, that orderly process makes perfect sense. The Model Act establishes the same basic process. Significantly, the comment to the Model Act emphasizes that the claims process "does not prohibit recovery from more than one association, but it does describe the association to be approached first and then requires that any previous recoveries from like associations must be set off against recoveries from [another] association." Model Act ยง 12 cmt. (emphasis added). The comment's reference to recoveries rather than to maximum statutory limits lends further support to the Appellate Division's holding.
The Act also fosters one of the Legislature's stated aims, namely, "to avoid excessive delay payment[.]" N.J.S.A. 17:30A-2a. Requiring claimants to assert claims first in their home jurisdictions, or in the state in which their property is located, reduces the costs of litigation and generally facilitates the prompt administration of claims. That requirement,
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