State Farm Gen. Ins. Co. v. WCAB
Filed 7/1/13
State Farm Gen. Ins. Co. v. WCAB CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
STATE FARM GENERAL INSURANCE COMPANY,
Petitioner,
v.
WORKERS' COMPENSATION APPEALS BOARD, CALIFORNIA INSURANCE
GUARANTEE ASSOCIATION et al.,
Respondents.
2d Civil No.
B240742
(W.C.A.B. Nos.
ADJ4684775, ADJ4381820, ADJ7684775)
Proceeding to review a
decision of the Workers' Compensation Appeals Board. Annulled and remanded with directions.
Finnegan, Marks, Theofel
& Desmond, Ellen Sims Langille, for petitioner State Farm General Insurance
Company.
Guilford Steiner Sarvas
& Carbonara, Richard E. Guilford; Floyd, Skeren & Kelly, James K.
Lowery, for respondent California Insurance Guarantee Association.
No appearance for
respondent Workers' Compensation Appeals Board.
>
Labor
Code section 5950 provides that any person aggrieved by a final order,
decision, or award of the Workers' Compensation Appeals Board (WCAB) may,
within the prescribed time limit, apply to the Court of Appeal for a writ of
review. Appellate review is limited to
final orders that affect a substantial
right or liability of a party. (
166 Cal.App.4th 294, 299.) The failure
of an aggrieved party to seek judicial review of a final order of the WCAB bars
later challenge to the propriety of the order or decision before either the
WCAB or the court. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068,
1075-1076 (Maranian); see also
Appeals Bd. (1980) 104 Cal.App.3d 528, 532-535.)
This petition for writ
of review challenges the WCAB's decision allowing California Insurance
Guarantee Association (CIGA) to pursue a claim for reimbursement against State
Farm General Insurance Company (State Farm), after the WCAB had previously
rejected the claim and CIGA had failed to timely seek judicial review. We conclude that CIGA's claim is barred by
principles of res judicata. We annul the
WCAB's decision and remand for further proceedings.
FACTUAL
AND PROCEDURAL BACKGROUND
On June 8, 1999, and January 20, 2000, Joanne
Lutz (applicant) was injured while working as a personal assistant to Linda
McDonald, President of Roto Rooter (aka Russell Warner, Inc.). The applicant was on Roto Rooter's payroll
at the time. During 1999 and 2000, Roto
Rooter was insured for workers' compensation by Fremont Compensation Insurance
Company and Paula Insurance Company, respectively. Linda McDonald and her homeowner's insurance
carrier, State Farm, were joined as additional parties to the applicant's
claim.
In February of 2002, at a mandatory
settlement conference, the parties disputed the issues of employment and which
insurance carrier should be responsible for coverage of the applicant's claim,
i.e., whether the applicant was working as a domestic employee of McDonald at
the time of her injuries such that State Farm should provide coverage for her
claim, or whether she was employed by Roto Rooter.
On March 15, 2002, in lieu of trial, the
parties entered into "Joint Stipulations With Request for
Award." The parties stipulated that
the applicant was employed by Roto Rooter and Linda McDonald, and
"sustained injury arising out of and in the course of employment." Paula Insurance Company agreed to administer
all benefits under the award, and under any future award. State Farm agreed to "indemnify and/or
contribute 25% of all incurred benefits paid to or on behalf of applicant
(including, but not limited to TD [temporary disability], PD [permanent
disability], medical treatment, and vocational rehabilitation), as to injuries
of 6/8/99 and 1/20/00.
[¶] Paula Ins. reserves its right to seek contribution from
Fremont Compensation Ins. Co." That
same day, Workers' Compensation Judge (WCJ) William Carero approved the award
allocating liability between the parties.
No party sought reconsideration of the award and, consequently, it
became final between these parties.
In June of 2002 and July of 2003, Paula
Insurance Company and Fremont Insurance Company, respectively, were liquidated. CIGA assumed administration of the
claim. Since then, State Farm has been
reimbursing CIGA for 25 percent of all benefits paid to the applicant.
In September of 2003, CIGA filed a petition
for dismissal, arguing it should be dismissed because Paula Insurance Company
had not provided workers' compensation coverage for residential or domestic
employees. State Farm opposed the
petition, contending the evidence supported a finding of employment by Roto
Rooter and coverage, and that the March 15, 2002, stipulated award was final
and binding on CIGA. The record before
us discloses no action on this petition.
In February of 2008, five years later, CIGA
sought to be relieved as administrator of the applicant's claim. CIGA filed a declaration of readiness with
the WCAB, stating that the parties were unable to "resolve the dispute
concerning employment as a domestic employee versus employment with Roto
Rooter." CIGA requested resolution
of the questions (1) "whether State Farm homeowner's insurance qualifies
as 'other insurance' to make the claim against CIGA a non-covered claim per
Insurance Code section 1063.1"; and (2) whether the applicant qualifies as
a domestic employee under Labor Code section 3351, subdivision (d).
On April 4, 2008, the WCJ ruled that the WCAB
was without jurisdiction to rescind or alter the March 15, 2002, stipulated
award, and that CIGA was bound by the stipulation. The WCJ reasoned: "Labor Code section 5804 confers
limited power upon the Board to rescind, alter or amend its Awards. That power is limited by the statutory
language as to time and as to content.
Specifically, that Section states 'that after an award has been made
finding that there was employment and the time to petition for a rehearing or
reconsideration or review has expired . . . , the appeals board upon a petition
to reopen shall not have the power to find that there was no employment.' This includes determination of the identity
of the employer previously determined by the Award. [¶] Neither does the subsequent
liquidation of the Paula Insurance Company and Fremont Indemnity . . . permit
CIGA to upset the final legal determination as to employment. . . . [¶] In essence, CIGA avers that it is
not bound by the Award entered against the then-solvent carriers for which CIGA
is now responsible to the extent the Insurance Code requires. [¶] No
determination is made as to the extent of CIGA's ultimate liability under the
March 15, 2002 Award. It is found
nevertheless that the Award binds CIGA."
CIGA did not seek reconsideration of the WCJ's order before the
WCAB. (Lab. Code, § 5900.)
Two months later, on June 9, 2008, CIGA filed
a petition for reimbursement and for a change of administrator, renewing its
claim that it should be relieved of responsibility to pay benefits because of
the presence of other insurance. (Ins.
Code, § 1063.1, subd. (c)(9).)
severally liable for the benefits paid by CIGA, and as solvent "other
insurance" must reimburse CIGA in full for all temporary disability
benefits, medical treatment, and medical-related expenses. CIGA requested that State Farm reimburse it
$382,833, less credit for payments made by State Farm.
State Farm opposed the petition, arguing that
(1) CIGA's failure to seek reconsideration of the WCJ's decision on April 4,
2008, precluded it from relitigating its reimbursement claim (Lab. Code,
§ 5804); (2) State Farm's homeowner's insurance policy does not constitute
"other insurance" as defined by the Insurance Code because its policy
was not "available to the claimant or insured" (Ins. Code,
§ 1063.1, subd. (c)(9)); and (3) CIGA's claims were barred by the
equitable doctrine of laches.
In May of 2009, CIGA filed a declaration of
readiness (presumably for its June 2008 petition), seeking dismissal as a
party-defendant on the ground that "'other solvent insurance' is
available" pursuant to Insurance Code section 1063.1, subdivision
(c)(9). According to the pretrial conference
statement, the parties proceeded to trial on issues including: (1) whether CIGA should be dismissed pursuant
to Insurance Code section 1063.1, subdivision (c)(9), because "other
solvent insurance" is available; (2) joint and several liability/reimbursement
from State Farm; (3) Insurance Code section 11590 provides that domestic
workers are covered under homeowner's insurance policy for workers'
compensation; and (4) petition to change administrator.
On June 25, 2009, the WCJ conducted a hearing
on CIGA's petition. The minutes of the
hearing specify that the issue of whether there was "good cause to dismiss
CIGA due to the presence of other insurance" was "raised and accepted
to be heard" as part of the trial.
With respect to this issue, the WCJ ruled: "The presence of other insurance in this
case does not support good cause to dismiss CIGA. [CIGA] has already been determined [to be]
bound by the [Stipulated Award of March 15, 2002]; and that determination
having been made on April 8th, 2008, without any appellate response, remains
the law of this case, and the motion of CIGA to be dismissed is therefore
denied."
CIGA then sought reconsideration by the WCAB,
contending that CIGA is statutorily prohibited from making payments to the
applicant and must be dismissed pursuant to Insurance Code section 1063.1,
subdivision (c)(9) because other solvent insurance is available. CIGA argued that our decisions in
several liability onto the still-solvent carrier."
On July 28, 2009, the WCJ recommended the
WCAB deny reconsideration, reasoning that "[r]ight or wrong, the 2008
decision on jurisdiction to rescind, alter or amend the 2002 stipulated award
is the law of this case. [¶]
[CIGA] seeks to distinguish the issue here presented from that presented in
2008. However, both efforts boil down to
an effort to impose the liability in this case solely on State Farm." The WCJ explained that CIGA "remains
liable because the 2002 stipulation and award was a finding of employment which
was not the subject of a petition for reconsideration and was followed by a
decision six years later that jurisdiction to change the terms of the 25%/75%
deal was lacking. The 2008 decision in
turn became final." The WCJ also
observed that CIGA was barred by laches from attempting to avoid the stipulated
award "where five to six years elapse with the injured worker and the
homeowner carrier relying upon the deal they struck." On October 15, 2009, the WCAB adopted WCJ
Carero's recommendation and denied CIGA's petition for reconsideration. CIGA did not file a petition for writ of
review in the Court of Appeal.
In January of 2010, CIGA proceeded to trial
on the applicant's claim of permanent disability, future medical treatment, a
lien claim by the Employment Development Department (EDD), and other related
issues. On April 27, 2010, the WCJ
issued his decision granting the applicant permanent disability of 39 percent
and awarding benefits against CIGA for future medical treatment. The WCJ ordered CIGA to reimburse the EDD for
disability benefits provided to the applicant.
In May of 2010, CIGA sought reconsideration
of the WCJ's decision, contending that the WCJ should have found that the
applicant was jointly employed by Roto Rooter and Linda McDonald on the date of
injury, and the award should have identified State Farm as jointly liable for
all benefits due the applicant.
The WCJ recommended that reconsideration be
granted in part to correct certain miscalculations he had made in the amount of
permanent disability and to eliminate CIGA's obligation to reimburse the
EDD. The WCJ also clarified that CIGA
is the party liable for the benefits due the applicant, and that "State
Farm remains obligated to its co-defendant(s), but not to the applicant." The WCJ recommended denial of CIGA's
reconsideration petition in all other respects.
On January 18, 2011, the WCAB adopted the
WCJ's recommendations in all respects and modified the WCJ's award
accordingly. The WCAB amended the award
to conform to the 2002 stipulation by identifying Linda McDonald as an
additional employer on the date of injury.
The WCAB rejected CIGA's contention that the award should be amended to
reallocate liability for the applicant's claim to State Farm by finding it
jointly and severally liable. The WCAB
reasoned that CIGA's contentions were rejected by the WCJ in his decisions of
April 4, 2008, and July 13, 2009, and by the WCAB when it denied
reconsideration on September 1, 2009.
Because CIGA did not appeal those decisions, the WCAB concluded they
"are now final and the law of the case."
The WCAB stated: "We recognize that several appellate
cases describe limits of CIGA's liabilities in cases where solvent insurers are
'available' to provide an injured worker with benefits within the meaning of
Insurance Code section 1063.1(c)(9), notwithstanding that the insolvent insurer
would be liable for those benefits but for the insolvency. [Fn. and citations omitted
However, those cases did not involve a request by CIGA to amend an award
made more than five years earlier by stipulation of all the solvent
insurers. In this situation, Labor Code
section 5804 precludes CIGA's request to re-allocate liability by amending the
2002 stipulated award."
name="_ftnref3" title="">[3] Once again, CIGA elected not to petition for
a writ of review in the Court of Appeal.
On April 18, 2011, CIGA filed another
declaration of readiness, renewing the issue of reimbursement. CIGA stated that "[t]he parties require
the intervention of the WCAB to resolve the dispute between CIGA and State Farm
concerning contribution/reimbursement."
On June 2, 2011, the WCJ conducted a hearing on: (1) whether res judicata bars further
proceedings on reimbursement; and (2) whether good cause exists to refer the
matter to arbitration. On July 29,
2011, the WCJ denied CIGA's request for trial of its claim for reimbursement
and/or contribution. He found that the
respective liabilities of the parties had previously been finally determined
and could not be "relitigated by way of seeking contribution or
reimbursement."
CIGA then petitioned the WCAB for
reconsideration, contending that it may proceed with its reimbursement claim
against State Farm because (1) CIGA and State Farm are jointly and severally
liable under the 2002 stipulated award; and (2) it is not precluded from
seeking reimbursement by either res judicata or Labor Code section 5804. CIGA pointed to the wording of the WCJ's
April 2008 decision, stating that "[n]o determination is made as to the
extent of CIGA's ultimate liability under the March 15, 2002 Award." CIGA argued that it relied on this language
in not appealing or seeking reconsideration earlier, believing that it meant
that Insurance Code section 1063.1 might still shift all liability to State
Farm. CIGA argued that the issue of
CIGA's right to reimbursement against State Farm was raised for the first time
in CIGA's declaration of readiness filed on April 18, 2011, and the issue was
not "identical" to the issues previously decided.
On August 25, 2011, the WCJ disagreed with
CIGA, concluding its reimbursement claim was not made in good faith and was not
supported by the cases cited. The WCJ
stated that no determination as to the ultimate liability of any party was possible
in 2008 because the extent of the applicant's permanent disability was still
being evaluated. The WCJ noted this did
not prevent CIGA from appealing or seeking reconsideration of the 2008
determination that it was bound by the 2002 stipulated agreement. The WCJ concluded that "[r]egardless of
the semantics employed," CIGA's renewed effort to "re-allocate
liability by amending the 2002 stipulated award" was barred by "the
component of res judicata known as
issue preclusion."
On December 19, 2011, the WCAB granted
reconsideration, notwithstanding its contrary decision 11 months earlier (on
January 18, 2011), ruling against CIGA on the question of whether it could
pursue a reimbursement claim under Insurance Code section 1063.1, subdivision
(c)(9). The WCAB noted that CIGA was not
a party to the 2002 stipulation and was not seeking to amend the earlier 2002
award. Instead, it reasoned, CIGA was
seeking to enforce its statutory right under Insurance Code section 1063.1 to
obtain reimbursement from a solvent insurer that is "available" to provide
benefits to the applicant within the meaning of the statute. The WCAB reasoned that the 2002 stipulated
award and the five-year limitations period of Labor Code section 5804 were not
dispositive of CIGA's petition for reimbursement. The applicant was jointly employed by Linda
McDonald and Roto Rooter when she was injured.
"Because applicant had two employers
. . . each employer and
their respective insurers on those dates of injury are as a matter of law
jointly and severally liable for workers' compensation benefits that are
due."
The WCAB went on to reason that the 2002
stipulation did not change State Farm's joint and several liability to the
applicant. "This is because
agreements between employers and/or their insurers cannot diminish or eliminate
an applicant's right to recover benefits from the employers and insurers that
are jointly and severally liable for the injury.
. . . When Freemont and
Paula became insolvent, State Farm became 'available' to applicant as 'other
insurance' under Insurance Code section 1063.1(c)(9) because McDonald is
jointly and severally liable for applicant's injuries. [¶]
Because State Farm appears to be 'other insurance' that is 'available' .
. . within the meaning of Insurance Code section 1063.1(c)(9), it appears to be
responsible for the provision of workers' compensation benefits that are due
because of her injuries."
The WCAB concluded "[t]here has been no
earlier final decision on CIGA's petition to obtain reimbursement from State
Farm. Thus, there is no basis for
denying the petition for reimbursement on the grounds of res judicata or
collateral estoppel as concluded by the WCJ in his August 25, 2011
Report." Accordingly, the WCAB
rescinded the WCJ's decision and returned the case to the trial level for
further proceedings on CIGA's petition for reimbursement.
Thereafter, State Farm petitioned the WCAB
for reconsideration. State Farm argued
that the question whether homeowner's insurance qualifies as "other
insurance" under Insurance Code section 1063.1 was expressly raised by
CIGA and decided against it by the WCJ in April of 2008, and by the WCAB in
September of 2009. State Farm contended these decisions were
final and entitled to res judicata
effect. Alternatively, State Farm
contended that CIGA's request for reimbursement was barred by the doctrine of
laches. State Farm pointed out that it
will suffer irreparable harm and prejudice should CIGA be allowed to
re-litigate its request for reimbursement.
State Farm pointed out that if CIGA is allowed to seek reimbursement in
an amount greater than 25 percent, it will have been denied due process by
being precluded from litigating the issue of employment. State Farm abided by the terms of the
stipulated award and detrimentally relied on it by withdrawing its challenge to
the employment issue in 2002.
On
March 14, 2012, the WCAB denied State Farm's petition for reconsideration. State Farm's petition for writ of review
followed.
DISCUSSION
The dispositive question before us is whether
CIGA's reimbursement claim is barred by res judicata or laches.
in workers' compensation litigation. (
7 Cal.App.4th 372, 379-380; United
Dredging Co. v. Industrial Acc. Com. (1930) 208 Cal. 705, 713-714.)
Labor Code section 5950 provides that a party
"affected by an order, decision, or award" of the WCAB may, within
the prescribed time period, apply to the Court of Appeal for a writ of review
"for the purpose of inquiring into and determining the lawfulness" of
the order, decision, or award.
"[A]ppellate review . . . is limited to 'final' orders that
determine a substantial right or liability of a party." (Duncan
v. Workers' Comp. Appeals Bd., supra, 166 Cal.App.4th at p. 299.) An order of the WCAB is final for the purpose
of seeking judicial review when it "settles, for purposes of the
compensation proceeding, an issue critical to the claim for benefits, whether
or not it resolves all the issues in the proceeding or represents a decision on
the right to benefits." (
Cal.App.4th 1435, 1438, fn. 3; Safeway
Stores, Inc. v. Workers' Comp. Appeals Bd.,
supra, 104 Cal.App.3d at pp. 534-535.) Such final
orders include, for example, threshold orders dismissing a party, rejecting an
affirmative defense, terminating liability, or determining whether the employer
has provided compensation coverage. (
The characterization of
an order or decision as final and susceptible to judicial review has critical
consequences. The failure of an
aggrieved party to seek judicial review of a final order of the WCAB bars later
challenge to the propriety of the order or decision before either the WCAB or
the court. (Maranian, supra, 81 Cal.App.4th at p.1076; see also Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1182.) The purpose of this rule is to
facilitate early disposition of core questions, and promote the public policy
favoring expeditious and inexpensive resolution of workers' compensation
claims. (Maranian, at p. 1078.)
CIGA contends that State Farm cannot point to
any place in the record where CIGA's right to reimbursement was consciously
raised and litigated prior to the WCAB's decision on December 19, 2011. CIGA denies that its right to reimbursement
was litigated in April of 2008, June of 2009, or January of 2011. We disagree.
In 2008, CIGA filed a formal "Petition
for Reimbursement," requesting resolution of the question whether the
homeowner's insurance policy qualified as "other insurance" to make
the claim against CIGA a non-covered claim under Insurance Code section
1063.1. The WCJ found the WCAB lacked
jurisdiction to rescind or alter the 2002 stipulated settlement agreement and
that CIGA was bound by it. In 2009, CIGA
again asked the WCJ to resolve the questions whether it should be dismissed
pursuant to Insurance Code section 1063.1 because "other solvent
insurance" was available, whether joint and several liability existed for
State Farm, and whether administration of the claim should be changed. On October 15, 2009, the WCAB adopted the
WCJ's findings that CIGA was bound by the 2002 stipulated settlement and barred
by laches from attempting to avoid it.
Finally, on January 18, 2011, the WCAB rejected CIGA's contention that
liability should be re-allocated to State Farm because State Farm was jointly
and severally liable for the applicant's injuries. Contrary to CIGA's contention, its
entitlement to reimbursement was expressly raised in these proceedings in 2008,
2009, and 2011, and determined adversely to it.
CIGA did not seek judicial review of any of these decisions. Consequently, these decisions have become
final and conclusive. CIGA is barred by
res judicata from relitigating its right to reimbursement.
Next, CIGA contends that State Farm
misapprehends the obligations created by the 2002 stipulated settlement
agreement. It argues that, in the
agreement, both Roto Rooter and Linda McDonald admitted concurrent
employment. Dual employers are jointly
and severally liable for payment of all compensation due the injury of the
shared employee. (McFarland v. Voorheis-Trindle Co. (1959) 52 Cal.2d 698 [where
relationship of general and special employment exists, injured worker can look
to both employers for compensation benefits].)
CIGA adds that its right to reimbursement is
statutory and it has no statutory liability for claims covered by other
available solvent insurance. (Ins. Code,
§ 1063.1, subd. (c)(9).) CIGA argues
that State Farm's agreement to pay 25 percent of the applicant's benefits does
not "trump" CIGA's statutory obligations.
We need not address the ultimate question of
whether State Farm is jointly and severally liable for 100 percent of the
applicant's claim, or whether its homeowner's insurance policy is "other
insurance" under Insurance Code section 1063.1, subdivision (c)(9),
because CIGA did not preserve its right to pursue these issues.
and the WCAB's 2009 and 2011 decisions are final, and CIGA may not invoke the
jurisdiction of the WCAB or this court to review the lawfulness of those
decisions.
The cases cited by CIGA regarding its
statutory right to reimbursement are distinguishable. In each of the cases CIGA cites, unlike the
facts of this case, CIGA's request for reimbursement due to the presence of
other solvent insurance was timely brought
before the WCAB
or the Court of Appeal. (E.g.,
Compensation Appeals Board (2003) 68 Cal.Comp.Cases 1262 [two carriers
stipulated to percentage of liability before one carrier liquidated; WCAB granted CIGA's timely petition for a
change of administrators because other solvent insurance available].)
We recognize that the Legislature has limited
CIGA's liability to "covered claims." (Ins. Code, § 1063.1.) CIGA's "powers, duties and
responsibilities are strictly defined and circumscribed by statute; they are not
co-extensive with the duties owed by the insolvent insurer." (California
Ins. Guarantee Assn. v. Workers' Comp. Appeals Bd. (2007) 153 Cal.App.4th
524, 532.) Nevertheless, this statutory
policy limiting CIGA's liability to covered claims must be weighed against the
strong "public policy interests in an expeditious and inexpensive system
of workers' compensation, the encouragement of settlements of workers'
compensation proceedings to further that system, the justified expectations of
parties dealing with CIGA, the importance of there being an end to litigation,
the resulting finality of judgments, and CIGA's role in obtaining the order at
issue." (Fireman's Fund Ins. Co. v. Workers' Compensation Appeals Bd. (2010)
181 Cal.App.4th 752, 770.)
Here, the applicant was 61 years old on the
date of her first injury in 1999. She is
now 75 years old and the issue of liability for her claim continues to be
litigated despite CIGA's failure to seek judicial
review of adverse decisions in 2008, 2009, and 2011, and the stipulated
settlement over a decade ago. In these
circumstances, the strong public policy in favor of CIGA's paying only covered
claims does not outweigh the policy interests enumerated above. (See Fireman's
Fund Ins. Co. v. Workers' Compensation Appeals Bd., supra, 181 Cal.App.4th at p. 770.)
In light of our determination that CIGA's
reimbursement claim is barred by principles of res judicata, we need not
address State Farm's alternative contentions that it would be deprived of due
process if CIGA is allowed to pursue its reimbursement claim, or that CIGA's
claim is barred by laches. Contrary to
CIGA's contention, these issues were preserved for review and raise substantial
concerns.
title="">[6]
We annul the WCAB's
order of March 14, 2012, denying State Farm's petition for
reconsideration. We remand the matter to
the WCAB for further proceedings consistent with this opinion. Costs are awarded to State Farm.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
name="_ftn1" title="">[1] Insurance Code section 1063.2, subdivision
(a) limits CIGA's liability to paying for "covered claims." Insurance Code section 1063.1, subdivision
(c)(9) provides that "covered claims" do not include "a claim to
the extent it is covered by any other insurance of a class covered by this
article available to the claimant or insured."
title=""> [2] See California
Ins. Guarantee Assn. v. Workers'
Comp. Appeals Bd. (2005) 128
Cal.App.4th 307, 320 (Weitzman)
Code section 1063.1, subdivision (c)(9), do not include claims covered by other
solvent insurers in situations of joint and several liability];
128 Cal.App.4th 569, 573 (Hooten)
[even in absence of joint and several liability, "covered claims"
under section 1063.1, subdivision (c)(5) do not include claims by other
insurers].)
