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Urban v. Louis Loham and Theodore Lowe, 227 Ill. App. 3d 772, 592 N.E.2d, 292
(1992). Section 546(a) of the Illinois Insurance Code, Ill. Rev. Stat. ch. 73, par.
1065.96(a), requiring any insured or claimant having a covered claim against
the Guaranty Fund to first exhaust any remedies available under other
insurance policies which may be applicable to the claim, is met when any
insured or claimant makes a claim under such a policy regardless of the
amount, if anything, actually received. A plaintiff who knowingly fails to
exhaust the limits of another policy, shall be assumed to have received that
policy's limits of coverage, and only amounts in excess of that amount may be
recovered from the Fund. Compliance with Section 546(a) is not a condition to
maintaining an action against a tortfeasor, as section 546(a) is relevant in
determining only recovery from the fund, not the liability of a tortfeasor to a
plaintiff.
Indiana
Kansas
Michigan
Holz v. H.C. Baldwin Agency, 140 F. Supp. 860 (S.D. Ind. 1956). A New York
insurance liquidator brought suit to recover premiums collected, and the
defendant agent counterclaimed for sums due from the insurer, but the period
for filing claims had elapsed. The court concluded that it was not precluded
from liquidating those claims because the insurance code now authorized the
filing of proofs of claims against insurers in liquidation subsequent to the date
specified in the notice to creditors.
Hudson v. Ketchum, 156 Kan. 332, 133 P.2d 171 (1943). Plaintiff, before suing
motor carrier operating truck and truck driver for injuries sustained in highway
collision with the truck, properly filed a claim in the receivership action of the
motor carrier's insolvent insurer for such injury, where the insurer's maximum
liability was limited to $5,000, and plaintiff sought $25,000 from operator and
driver.
Monical Mach. Co. v. Michigan Property & Casualty Guar. Assoc., 189 Mich.
App. 694, 473 N.W.2d 808 (1991). A "blanket claim" (that is, a claim for
unknown liabilities) is not a "covered claim" (that is, a claim made on or before
the deadline set for filing claims at an insurer's insolvency proceedings) under
the Michigan Property and Casualty Guaranty Association Act. Thus, the court
held that if a blanket claim is initially timely filed, but is later amended after the
expiration of the deadline to reflect an actual claim, that claim will not qualify
as a covered claim under the Act. The court reasoned that to permit a blanket
claim to qualify as a covered claim would render the statutory filing deadline
meaningless.
Sensing v. Union Indem. Ins. Co., 468 N.W.2d 525 (Mich. Ct. App. 1990). The
court held that compliance with the statute detailing notice requirements
under the Uniform Insurers Liquidation Act does not obligate the Michigan
Property and Casualty Guarantee Association (MPCGA) to pay and discharge
claims; rather, the MPCGA is obligated to pay only "covered claims," which
must be presented to a receiver in Michigan or to the MPCGA before the last
date fixed for the filing of claims in the domiciliary delinquency proceedings.
Minnesota
In re St. Paul German Ins. Co., 58 Minn. 163, 59 N.W. 996 (1894). When a policy
required the insured to enforce any claim for loss within one year from the
time of the loss, and the policyholder failed to do so, the lower court held the
claim was barred by the one year limitation. The insurance company however,
became insolvent in the period occurring after the policyholder had suffered
the loss but before the last date for the policyholder to file a claim. The court
allowed the policyholder's claim stating that the limits for enforcing a claim
found in the insurance contract were waived by the insurer by its assignment
of assets for the benefit of its creditors, including this policyholder.