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    "parties": [
      "JOHN KLAIBER et al., Plaintiffs, v. DYTEC CENTRAL, INC., et al., Defendants (WBBM-FM Radio (Liberty Mutual Fire Insurance Company, Real Party in Interest), Cross-Plaintiff-Appellant; Trizechahn Office Properties, Inc. (California Insurance Guarantee Association, Real Party in Interest), Cross-Defendant-Appellee)."
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        "text": "PRESIDING JUSTICE GALLAGHER\ndelivered the opinion of the court:\nLiberty Mutual Fire Insurance (Liberty) appeals the trial court\u2019s entry of a declaratory judgment in favor of the California Insurance Guarantee Association (CIGA), which required Liberty to pay a $622,855.06 judgment awarded to an injured individual. On appeal, Liberty contends that CIGA was responsible to pay the portion of the judgment attributable to joint tortfeasor Trizechahn Office Properties, Inc. (Trizechahn), because the judgment obligation was a \u201ccovered claim\u201d under California Insurance Code section 1063.1 (Cal. Ins. Code \u00a7 1063.1 (West 2004)). For the reasons that follow, we affirm.\nThis appeal relates to underlying litigation initiated by John Klaiber, who suffered from radio wave injuries that he sustained while painting an antenna located on a radio tower on top of the Sears Tower. Although numerous defendants settled prior to trial, WBBM-FM Radio (WBBM) and Trizechahn did not settle with Klaiber and the matter proceeded to trial. WBBM was one of the stations broadcasting from the antenna that Klaiber was working on when the accident occurred. Trizechahn managed the Sears Tower.\nAt the time of the accident, Liberty insured WBBM and Reliance Insurance Company (Reliance) insured Trizechahn. Prior to trial, however, Reliance went into liquidation. CIGA assumed Reliance\u2019s insurance obligations since Reliance was insolvent and Trizechahn is a California corporation.\nDuring trial, WBBM and Liberty and Trizechahn and CIGA agreed that the parties would be bound by the jury-determined fault percentages relating to the accident giving rise to Klaiber\u2019s injuries. The parties also agreed that CIGA would have the right to litigate and Liberty to respond to the issue of whether CIGA was obligated to pay the claim based on the \u201cinsurer of last resort\u201d provision set forth in section 1063.1. The parties further agreed to withdraw contribution claims each had against the other.\nThe jury returned a verdict in favor of Klaiber and against WBBM and Trizechahn, finding both parties jointly and severally hable. The jury also determined that Trizechahn was 40% at fault and WBBM was 25% at fault. The remaining 35% fault allocation was attributable to defendants that settled with Klaiber prior to trial. On April 6, 2004, the trial court entered a modified judgment after applying setoffs for previous settlements in the amount of $610,492.84, plus accrued interest for a total award of $622,855.06. Based on the jury-determined fault proportion, Trizechahn was liable for 40/65 of the judgment amount, which is equivalent to $383,295.42, and WBBM was liable for 25/65 of the judgment amount, which is equivalent to $239,559.64, subject to CIGA\u2019s statutory position that it is not obligated to pay because it is an \u201cinsurer of last resort.\u201d Since WBBM and Trizechahn were found jointly and severally liable, Klaiber elected to collect the entire judgment from WBBM. As WBBM\u2019s insurer, Liberty paid the full judgment to Klaiber. CIGA and Liberty then filed cross-motions for declaratory relief concerning CIGA\u2019s obligation to pay the judgment against Trizechahn. The trial court ruled that CIGA\u2019s obligation to pay the judgment attributable to Trizechahn did not arise because exhaustion of Liberty\u2019s policy would fully satisfy the judgment. The trial court entered a declaratory judgment in favor of CIGA and against Liberty. Liberty timely appealed.\nThe issue on appeal is whether a solvent insurer\u2019s policy must be exhausted before CIGA is obligated to pay on behalf of a joint tortfeasor whose insurance carrier became insolvent. The definition of the phrase \u201ccovered claims\u201d as set forth in the CIGA statute is at issue here. Following is the statutory definition of the phrase \u201ccovered claims\u201d in pertinent part:\n\u201c(c)(1) \u2018Covered claims\u2019 means the obligations of an insolvent insurer, including the obligation for unearned premiums, (i) imposed by law and within the coverage of an insurance policy of the insolvent insurer.\n(c)(9) \u2018Covered claims\u2019 shall not include (i) any claim to the extent it is covered by any other insurance of a class covered by *** this article available to the claimant or insured nor (ii) any claim by any person other than the original claimant under the insurance policy in his or her own name ***.\u201d Cal. Ins. Code \u00a7\u00a7 1063.1(c)(1), (c)(9) (West 2004).\nSince we are required to analyze the above statutory provisions in this appeal, our standard of review is de novo. Czerkies v. AG Acceptance Corp., 354 Ill. App. 3d 205, 207, 820 N.E.2d 1133, 1135 (2004).\nLiberty contends on appeal that the trial court erred in ruling that CIGA was not obligated to pay the portion of the judgment representing Trizechahn\u2019s liability because, even though the Liberty policy was sufficient to pay the entire judgment, Liberty did not insure Trizechahn. Liberty maintains that the distinction between other insurance covering the occurrence and other insurance covering the \u201ccovered claim\u201d supports its position that it was not liable to pay the portion of the judgment allocated to Trizechahn. Liberty claims that although its policy may cover the \u201coccurrence\u201d because it insured one of the tortfeasors, the policy does not cover the \u201ccovered claim\u201d because it does not insure Trizechahn. Liberty maintains that section 1063.1 does not refer to \u201coccurrences,\u201d but rather \u201ccovered claims,\u201d which is statutorily defined as \u201cthe obligations of an insolvent insurer.\u201d See CD Investment Co. v. California Insurance Guarantee Ass\u2019n, 84 Cal. App. 4th 1410, 1424, 101 Cal. Rptr. 2d 806, 813 (2000). Liberty notes that Reliance is the insolvent insurer and the \u201ccovered claim\u201d is the claim that Reliance insured against Trizechahn. Liberty contends that only other insurance covering that claim against Trizechahn, and not covering the occurrence giving rise to Klaiber\u2019s claim, must be exhausted before CIGA is obligated to pay the judgment against Trizechahn. Liberty contends that because it does not cover the claim against Trizechahn, the Liberty policy is not required to be exhausted before CIGA is obligated to pay.\nCIGA responds that the plain language of the \u201ccovered claims\u201d statutory language and the intent underlying the purpose of that statute support the trial court\u2019s ruling that the Liberty policy must be exhausted before CIGA is obligated to pay a portion of the judgment awarded to Klaiber. CIGA contends that it is only liable for an insolvent insured\u2019s claims that fall within the statutory definition of \u201ccovered claims\u201d as set forth in section 1063.1. CIGA notes that the legislature\u2019s intent was to create CIGA to serve as a \u201cfund of last resort\u201d obligated to pay under an insurance policy after all of the other insurance from solvent insurers has been exhausted. See California Insurance Guarantee Ass\u2019n v. Workers\u2019 Compensation Appeals Board, 112 Cal. App. 4th 358, 367, 5 Cal. Rptr. 3d 127, 135 (2003) (hereinafter Mangum). GIGA claims that the entry of joint and several liability against WBBM and Trizechahn for the total judgment award of $622,855.06 permitted Klaiber to exercise his right to collect the entire judgment from Liberty, which resulted in other insurance available to the claimant or insured regardless of whether Liberty insured Trizechahn. See Industrial Indemnity Co. v. Workers\u2019 Compensation Appeals Board, 60 Cal. App. 4th 548, 556, 70 Cal. Rptr. 2d 295, 300 (1997). CIGA contends that since other insurance was available to \u201ccover\u201d the entire judgment awarded to Klaiber, his claim was \u201cfully protected by a solvent insurer\u201d and there was no \u201ccovered claim\u201d requiring payment by CIGA pursuant to section 1063.1(c)(9). See Mangum, 112 Cal. App. 4th at 365, 5 Cal. Rptr. 3d at 133. CIGA maintains that the trial court\u2019s ruling that Liberty, or the solvent insurance carrier here, was solely responsible for paying the entire judgment was in accordance with the express, unequivocal \u201cother insurance\u201d language of section 1063.1(c)(9) and with the recognized intent and purpose of the CIGA provisions.\nWe agree with CIGA. In the instant case, we are required to review and analyze the definition of the phrase \u201ccovered claims\u201d set forth in the CIGA statutes. In doing so, we must be mindful of the underlying intent regarding the creation of CIGA, which is well articulated in California law. Our review of the relevant case law reveals that CIGA was created as an insurer of last resort. Mangum, 112 Cal. App. 4th at 366, 5 Cal. Rptr. 3d at 134; CD Investment Co., 84 Cal. App. 4th at 1418-19, 101 Cal. Rptr. 2d at 810, quoting R.J. Reynolds Co. v. California Insurance Guarantee Ass\u2019n, 235 Cal. App. 3d 595, 600, 1 Cal. Rptr. 2d 405, 408 (1991). As such, CIGA is \u201cresponsible for paying claims only when no other insurance is available.\u201d Mangum, 112 Cal. App. 4th at 367, 5 Cal. Rptr. 3d at 134. See Denny\u2019s Inc. v. Workers\u2019 Compensation Appeals Board, 104 Cal. App. 4th 1433, 1441-42, 129 Cal. Rptr. 2d 53, 59 (2003). CIGA\u2019s liability is limited to paying \u201ccovered claims\u201d only. California Insurance Guarantee Ass\u2019n v. Workers\u2019 Compensation Appeals Board, 128 Cal. App. 4th 307, 313, 26 Cal. Rptr. 3d 845, 848 (2005) (hereinafter American Motorists Insurance Co.); Baxter Healthcare Corp. v. California Insurance Guarantee Ass\u2019n, 85 Cal. App. 4th 306, 310, 102 Cal. Rptr. 2d 87, 90 (2000). The phrase \u201ccovered claims\u201d means \u201cthe obligations of an insolvent insurer\u201d subject to expressly enumerated statutory exclusions. Cal. Ins. Code \u00a7 1063.1(c)(1) (West 2004). Covered claims do not include \u201c(i) any claim to the extent it is covered by any other insurance of a class covered by *** this article available to the claimant or insured.\u201d Cal. Ins. Code \u00a7 1063.1(c)(9) (West 2004).\nWe acknowledge Liberty\u2019s position that its policy did not expressly cover Trizechahn; however, we note that the Liberty policy was sufficient to pay the claim brought by Klaiber in its entirety and WBBM was found jointly and severally liable for this claim. Klaiber, as was his right, elected to recover the entire judgment out of Liberty\u2019s policy. We believe that to order CIGA to pay a proportionate amount of the judgment would defeat the purpose of CIGA and the legislative intent regarding the creation of CIGA. We are reminded that CIGA is not an insurer and does not stand in the shoes of an insurer but, rather, is an insurer of last resort. See Mangum, 112 Cal. App. 4th at 367, 5 Cal. Rptr. 3d at 134; CD Investment Co., 84 Cal. App. 4th at 1418-19, 101 Cal. Rptr. 2d at 810, quoting R.J. Reynolds Co. v. California Insurance Guarantee Ass\u2019n, 235 Cal. App. 3d 595, 600, 1 Cal. Rptr. 2d 405, 408 (1991); Saylin v. California Insurance Guarantee Ass\u2019n, 179 Cal. App. 3d 256, 262, 224 Cal. Rptr. 493, 496 (1986). Here, we do not consider it necessary to call upon CIGA to provide coverage as an insurer of last resort when other sufficient insurance is available. See Mangum, 112 Cal. App. 4th 358, 5 Cal. Rptr. 3d 127.\nLiberty cites to numerous statutes and decisions outside California to support its position that its policy should not be exhausted to pay the portion of the judgment against Trizechahn. One statute cited by Liberty was the Ohio non-duplication-of-recovery statute. See Ohio Rev. Code Ann. \u00a7 3955.13(A) (West 2005). While the Ohio statutory language does not mirror the language of the California insurer-of-last-resort statute, the underlying purpose of both statutes is to protect insured and injured parties against insolvent insurance companies. See Vickers v. Howe, 123 Ohio App. 3d 456, 462, 704 N.E.2d 344, 347 (1998). While not precedential, we are persuaded by the Ohio Court of Appeals\u2019 decisions in Sutton v. Scheidt, 141 Ohio App. 3d 289, 750 N.E.2d 1184 (2001), Spencer v. Nussbaum, No. 00 \u2014 CA\u20141 (Ohio App. June 19, 2000), and Vickers v. Howe, 123 Ohio App. 3d 456, 704 N.E.2d 344 (1998), which were relied on by Liberty. In these three decisions, the Ohio Court of Appeals consistently held that exhaustion of all insurance policies, including those of other tortfeasors, is required before the Ohio Insurance Guarantee Association is responsible for paying a claim. Sutton, 141 Ohio App. 3d at 295, 750 N.E.2d at 1189; Spencer, slip op. at 2; Vickers, 123 Ohio App. 3d at 461, 704 N.E.2d at 347. Applying the holdings of these three Ohio cases to the instant case while mindful of the purpose and language of CIGA, we believe that Liberty\u2019s policy must be exhausted before CIGA is required to pay the portion of the judgment attributable to Trizechahn.\nMoreover, we are guided by the California Court of Appeals decision in Denny\u2019s Inc. v. Workers\u2019 Compensation Appeals Board, 104 Cal. App. 4th 1433, 129 Cal. Rptr. 2d 53 (2003). In Denny\u2019s Inc., an employee of Denny\u2019s Inc. suffered from a work-related cumulative wrist injury and sought workers\u2019 compensation benefits relating to the injury. Denny\u2019s Inc., 104 Cal. App. 4th at 1436, 129 Cal. Rptr. 2d at 55. The Workers\u2019 Compensation Appeals Board in Denny\u2019s Inc. found Denny\u2019s Inc. and HIH America jointly and severally liable for the disability award since both entities insured Denny\u2019s Inc. during the course of the employee\u2019s injury. Denny\u2019s Inc., 104 Cal. App. 4th at 1442, 129 Cal. Rptr. 2d at 59-60. The California Court of Appeals held that since the employee \u201ccould recover the full award from Denny\u2019s self-provided \u2018other insurance,\u2019 the Guarantee Act prevented CIGA from assuming insolvent HIH America\u2019s proportionate share.\u201d Denny\u2019s Inc., 104 Cal. App. 4th at 1442, 129 Cal. Rptr. 2d at 60. While the claim in the instant case is not a claim for workers\u2019 compensation, we nonetheless find the holding in Denny\u2019s Inc. instructive since the insureds here and in Denny\u2019s Inc. were jointly and severally liable for a claim. Thus, we conclude that CIGA in the instant case is also prevented from paying Trizechahn\u2019s proportionate share of the judgment awarded to Klaiber because the claim is covered by other available insurance.\nAccordingly, the judgment of the trial court is affirmed.\nAffirmed.\nO\u2019BRIEN and NEVILLE, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE GALLAGHER"
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    "attorneys": [
      "Meachum, Spahr, Cozzi, Postel & Zenz, of Chicago (Joseph P Postel and Thomas W Starck, of counsel), for appellant.",
      "Lord, Bissell & Brook, L.L.P., of Los Angeles, California (C. Guerry Collins, of counsel), and Lord, Bissell & Brook, L.L.P., of Chicago (Hugh C. Griffin and Richard P. Stowell, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "JOHN KLAIBER et al., Plaintiffs, v. DYTEC CENTRAL, INC., et al., Defendants (WBBM-FM Radio (Liberty Mutual Fire Insurance Company, Real Party in Interest), Cross-Plaintiff-Appellant; Trizechahn Office Properties, Inc. (California Insurance Guarantee Association, Real Party in Interest), Cross-Defendant-Appellee).\nFirst District (5th Division)\nNo. 1\u201404\u20141131\nOpinion filed September 16, 2005.\nMeachum, Spahr, Cozzi, Postel & Zenz, of Chicago (Joseph P Postel and Thomas W Starck, of counsel), for appellant.\nLord, Bissell & Brook, L.L.P., of Los Angeles, California (C. Guerry Collins, of counsel), and Lord, Bissell & Brook, L.L.P., of Chicago (Hugh C. Griffin and Richard P. Stowell, of counsel), for appellee."
  },
  "file_name": "0166-01",
  "first_page_order": 184,
  "last_page_order": 189
}
