                                    NO. 00-456

           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    2001 MT 72


AUTO PARTS OF BOZEMAN,




                                                                   APR 2 6 2009
EMPLOYMENT RELATIONS DIVISION
UNINSURED EMPLOYERS' FUND,




APPEAL FROM:     Workers' Compensation Court
                 For the State of Montana
                 The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

          For Appellant:

                 Dennis E. Lind, Datsopoulos, MacDonald & Lind, Missoula, Montana

          For Respondent:

                 Mark Cadwallader, Special Assistant Attorney General, Department of
                 Labor and Industry, Helena, Montana

          For Amicus Curiae:

                 Curtis E. Larson, Special Assistant Attorney General, Montana State
                 Fund, Helena, Montana; Charles G. Adams, Jacqueline T. Lenmark, Keller,
                 Reynolds, Drake, Johnson & Gillespie, Helena, Montana (American Insurance
                 Association)


                                                    Submitted on Briefs: January 18, 2001

                                                                   Decided: April 26,2001
Filed:
Justice Patricia Cotter delivered the Opinion of t l ~ e
                                                       Court.


71     Appellant Auto Parts of Bozeman (Auto Parts) cai-ried workers' compensation

insurance with Montana State Fund (State Fund). State Fund canceled Auto Parts' coverage

for failure to pay a premium. Thereafter, the Uninsured Employers' Fund (UEF), assessed

a penalty against Auto Parts for failure to carry workers' compensation insurance.

Following a contested hearing, the Workers' Colnpensation Court found that the Department

of Labor and Industry (DLI) elred by not allowing Auto Parts to defend the UEF claim on

the basis that State Fund had improperly canceled its policy. The court found that DL1 had

i~nproperly
          sl~ifted burden of proof from UEF to Auto Parts, thus denying Auto Parts its
                 the

right to due process of law. UEF appeals the decision of the Workers' Compensation Court.

The Montana State Fund and the Ameiican Insul-anceAssociation have filed arlzicus curiae

briefs with the Court. We reverse and remand.

72     The UEF raises the following issues on appeal:

73      1.Whether the Workers' Compensation Court erred when it ruled that the UEF
failed to meet its burden of proving that Auto Parts was an uninsured employer because
it did not present evidence that the purported cancellation was proper as a matter of
law.

74     2. Whether the Workers' Compensation Court erred in determining that the
issue of jurisdiction was not barred by the doctrine of collateral estoppel.

75     3. Whether it was error to give DL1 jurisdiction to adjudicate a contract dispute
of the propriety of cancellation.
                              Factual and Procedural History

76     Auto Parts carried a workers' coinpensation insurance policy with the State Fund.

Following non-payment of an advance premium, the State Fund sent a notice to Auto Parts

in January, 1996, warning that the policy would be canceled if the advance premium, due

Januaiy 1, was not received by February 1. The "Cancellation Notice" sent by the State Fund

reads as follows:

       We will cancel your policy at 12:Ol a.m. on the pending cancellation date(s)
       shown below unless each item is received by its respective pending
       cancellation date. We will not accept claims occurring on or after the pending
       cancellation date(s) unless we receive each item by its pending cancellation
       date.
       ...
       Once your coverage is canceled, we must re[c]eive all delinquent reports,
       amounts due, a new application, and sufficient advance premium or deposit to
       initiate new coverage. THERE WILL BE A LAPSE OF COVERAGE FROM
       THE CANCELLATION DATE TO THE NEW POLICY EFFECTIVE DATE.

       The Department of Labor and Industry's Uninsured Employer's Fund receives
       information concerning all cancellations of coverage. You are subject to fines,
       penalties and court action if you have not complied with coverage
       requirements under the Workers' Compensation Act. (Emphasis in original.)

77     Auto Parts issued a check for the premium, but did not mail it to the State Fund until

soilletime duiing the month of February. The State Fund marked it as received on February

2 1, 1996. The check was cashed and the amount was applied by the State Fund to the unpaid

poltion of the policy. The President of Auto Parts testified he believed that since the check

for the premium had been cashed by State Fund, the policy had not been canceled and

coverage continued. The State Fund, however, maintained that the policy was riglitfully
canceled and that the payment was applied not as an advance premium, but instead against

amounts still owed by Auto Parts for the unpaid period prior to cancellation. According to

the State Fund, the policy was canceled as of February 1 and the cancellation was reported

to the appropriate databases. A status report reflecting this was sent to Auto Parts by the

State Fund, but it is not clear whether it was received.

78     Auto Parts claims it was unaware of the cancellation of its policy when in April, 1996,

one of its employees was injured in an on-the-job accident. Auto Parts submitted a first

report of injury to the State Fund. At that point, the State Fund again informed Auto Parts

of tlie previous cancellation and sent them an application to re-enroll. Auto Parts paid the

necessary premium to re-enroll, and coverage became effective April 23, 1996.

79     Auto Parts requested a "customer service review" by the State Fund to determine if

State Fund had failed to abide by its internal policies or made a mistake when tlie first policy

was canceled. After a review, the State Fund determined that it had complied with the terms

of the contract and that coverage had properly been canceled. The State Fund refused to

back-date the new policy.

710    Because it had determined that the original Auto Parts policy was not in effect at the

time of the work-related accident , the injury report filed by Auto Parts was forwarded by tlie

State Fund to the UEF. As a result, an auditor for the UEF investigated Auto Parts' workers'

compensation insurance coverage, checking both the State Fund database and the National

Workers' Compensation Insurance Database.            The UEF determined, based on this
information, that Auto Parts was uninsured for the period between February 2,1996 and April

23, 1996. The UEF therefore paid the medical bills for the injured employee, assessed a

penalty against Auto Parts for the period of non-coverage, and presented a claim for

indemnification for the medical bills paid by UEF for the injured worker.

71 1   Facing a UEF penalty and indemnification claim, Auto Parts requested a contested

hearing before the DLI. (Auto Parts v. State Compensation Insurance Fund, Policy No. 3-

119389-3). Auto Parts argued that the State Fund had acted improperly in canceling the

policy. On February 4, 1998, the hearing officer issued an order dismissing the hearing

request on the grounds that DL1 lacked subject matter jurisdiction over the contract dispute.

The hearing officer reasoned:

       Procedures governing payments from the insured and cancellation are set forth
       in the contract of insurance between the parties. The contract specified that the
       District Court, Lewis and Clark County, has jurisdiction to hear any suits
       brought under the policy. This matter is one in which Petitioner seeks a
       remedy or the enforcement of a right founded in the contract or insurance law.

Ultimately, the matter was dismissed by the department:

       The Department of Labor and Industry does not have jurisdiction over contract
       disputes between an insurance carrier and its policyholder. This is purely a
       contract dispute over how a policyl-lolder's payment is applied by the insurance
       company when that policy has been canceled.

The order noted that either party could appeal within 30 days to the Workers' Compensation

Court. Auto Parts did not appeal this order.

712    Auto Parts then requested a contested case hearing from the DL1 to challenge UEF's

determination that Auto Parts was an uninsured employer. (Auto Parts v. Employment
Relations Division, Uninsured Employers' Fund, UEF Case No. 9258). Auto Parts contested

the penalty assessed by the UEF, and raised two other issues relating to the propriety of State

Fund's cancellation of the insurance policy. The hearing officer again refused to consider

Auto Parts' contention that it believed it was insured by the State Fund on the date of the

employee's injury. The hearing officer based his refusal on Auto Parts' failure to appeal the

previous DL1 order dismissing the case for lack of jurisdiction over the contract dispute

between the insurer and the insured:

       Crucial to the instant case is the appellant's failure to appeal Mr. Gerke's
       February 4, 1998 order to the Montana Workers' Compensation Court, in
       keeping with the appeal rights set out in that order. Accordingly, the appellant
       cannot now claim a denial of due process, when it failed to utilize its duly-
       authorized forum before the Workers' Compensation Court to challenge
       hearing officer Gerke's order regarding any dispute Bozeman Auto Parts had
       with the State Fund. Moreover, it appears that the UEF held off pursuing the
       instant case to permit the appellant to pursue District Court action against the
       State Fund, which it failed to take.

At the hearing, testimony was presented by a Compliance Specialist for the UEF. She

testified that in her investigation of Auto Parts, she reviewed the National Council of

Coiiipensation Insurance Database as well as the State Fund's database. Both databases

confirmed that the State Fund had canceled Auto Parts' workers' compensation policy on

February 1, 1996. Auto Parts did not present any evidence indicating that another policy was

in place during the period in question. On the basis of this evidence, the hearing officer

concluded that the UEF had met its burden of proof that Auto Parts was uninsured, and that
Auto Parts was therefore liable for the penalty and benefits paid to the employee. Formal

Findings of Fact, Conclusions of Law, and a Final Order were issued on May 25, 1999.

713    Auto Parts appealed this order to the Workers' Compensation Court. The court

reversed the determination of the hearing officer, saying that in order to meet its burden of

proof, the UEF needed to prove not only the fact that the insurance was canceled, but also

that the State Fund's cancellation of the policy was legally correct. The court said that

visitation of this issue was not barred by the doctrine of collateral estoppel because the initial

order had only determined that the DL1 did not have jurisdiction to resolve a separate action

regarding the propriety of the State Fund's cancellation of the policy. The court said that the

initial order did not address the issue raised in the second hearing, as it did not "determine

that the Department lacked jurisdiction to determine coverage in a Department proceeding

seeking a penalty and indemnification."

114    According to the Workers Compensation Court, the DL1 did have jurisdiction to

1-esolvethe dispute over whether the State Fund rigl~tfullycanceled Auto Parts' policy for

failure to pay premiums. The Workers' Compensation Court reasoned that the DL1 has

quasi-judicial power and, as a result, may exercise jurisdiction over any issue in front of it.

Furthermore, it determined that the hearing officer had improperly shifted the burden of

proof froin the UEF to Auto Parts. The court relied on C. Lorzey Concrete v. Ernployl~zerzt

Rel. Div., 1998 MT 230,291 Mont. 41,964 P.2d 777, for the proposition that the UEF bears

the burden of proving all elements of its case. According to the court, the shift in the burden
of proof resulted in a violation of Auto Parts' statutory due process rights to contest the

allegation that it was uninsured, "cutting off its opportunity to prove the lack of an essential

element of the case against it."

115    The Workers' Compensation Court accordingly reversed the decision of the DLI,

finding that because the UEF failed to present evidence that the purported policy cancellation

was proper as a matter of law, it failed to prove that Auto Parts was an uninsured employer.

This appeal follows.

                                     Standard of Review

116    When this Court reviews the Workers' Compensation Court's conclusions of law, it

does so to determine whether the Workers' Compensation Court's interpretation of the law

is correct. Thayer v. Uninsured Employers 'Fund, 1999 MT 304,l 12,297 Mont. 179, q12,

991 P.2d 447,712.

                                          Discussion

                                            Issue I

717 Did the Workers' Compensation Court err when it ruled that the UEF failed to
prove that Auto Parts was an uninsured employer because it did not present evidence
that the purported cancellation was proper as a matter of law?

118    Employers are required by the Workers' Compensation Act to obtain and maintain

Workers' Compensation Insurance for their employees under a choice of three plans, one of

which is available through tlie State Fund. Section 39-71-401, MCA.
719     The UEF is authorized to assess a penalty against employers who are not properly

enrolled in one of these three plans. Section 39-71-504(l), MCA (1995), provides in relevant

part:

        The department may require that the uninsured employer pay to the fund a
        penalty of either up to double the premium amount the employer would have
        paid on the payroll of the employer's workers in this state if the employer had
        been enrolled . . . or $200, whichever is greater . . .

An uninsured employer is defined by the Workers' Compensation Act as, "an employer who

has not properly complied with the provisions of 39-7 1-401." Section 39-7 1-50 1, MCA

(1995). An employer who "has not properly complied," is one that is not covered by one of

the three approved plans.

720     The Workers' Colnpensation Court determined that in order to ineet its burden of

proof, the UEF needed to prove not only that there was an absence of coverage during the

time frame at issue, but also that the State Fund's cancellation of the policy was legally

correct. We disagree with the analysis of the court on this issue. We agree instead with the

hearing officer, who concluded that the UEF meets its burden of proof by establishing that

Auto Parts was not insured by the State Fund or any other insurer on the date of the accident.

The responsibility of sorting through the claims and defenses between an employer and its

insurer relative to their contract dispute does not fall on the UEF. Rather, it is the

responsibility of the employer, as a party to the contract, to resolve disputes with the

~nsui-ance
         carrier.
721    To require the UEF to litigate the merits of an employer's dispute with its insurance

carrier would defeat the purpose of the Workers' Coinpensation system. The advantage of

the system is that workers are guaranteed a no-fault recovery while industry, in turn, is

relieved of the possibility of enormous recoveries in the toi-t system. Workers' compensatioii

statutes are soinetimes described as a quid pr-o quo exchange of rights and remedies.

Buerkley v. Asperz Meadows Ltd. Partrzer-slzip, 1999 MT 9 7 , l 16, 294 Mont. 263,v 16, 980

P.2d 1046, 1 16. In order for the system to work, however, employers must maintain

insurance in compliance with the statutes.

1122   Because not all employers comply with the statutory requirement to carry insurance

on their employees, the UEF was created to provide an injured employee of an uninsured

employer with the same benefits which the employee would have received had the employer

been properly enrolled in a workers' colnpensation plan. See     5 39-71-502, M C A (1991).
Zenzpel v. Unirzsured Enzployer*~
                                'Furzd (1997), 282 Mont. 424,43 1, 938 P.2d 658, 663. The

UEF is a legislatively created fund, the payments from which are intended to minimize the

hardships imposed when an injured worker is unable to get workers' compensation benefits

as a result of the employer's failure to provide coverage. Thayer-, '1[ 21. The UEF is not an

insurer, but merely a safety net. Tlzayev 7 24. In order for the benefits of the UEF to be

available to the worker, it must merely be established that the employer is uninsured, which

the UEF established here. Any more onerous requirement on the UEF, such as the Workers'

Compensation Court imposed, would frustrate the intent of the UEF, which is simply to
deliver benefits to the injured employee of an uninsured employer. Section 39-71-502,

MCA; Zempel, 282 Mont. at 431, 938 P.2d at 663.

123       Auto Parts could have pursued a separate claim in district court against the State Fund

for breach of contract. It elected not to do so. We will not address the merits of the propriety

of State Fund's cancellation of Auto Parts' insurance policy. The merits of that dispute are

simply not germane to the sole issue before the UEF when this case began, which was

whether or not Auto Parts was an insured employer at the time of its employee's injury.

Having confirmed through the State Fund and National Workers' Compensation Insurance

Database that Auto Parts was uninsured at that time, UEF had a statutory duty to pay the

injured employee the same benefits he would have received had Auto Parts been insured.

It was not obligated by statute or otherwise to do more.

124       In the process of maintaining workers' compensation insurance coverage, an employer

is often called upon to address and resolve disputes with its insurer. It is not enough for Auto

Parts to now say that it thought or assumed it was insured, when it was not. Auto Parts had

a duty to its employees to ensure that the insurance covering them in the event of an injury

did not lapse for any reason. Allowing an employer to interpose its unresolved disputes with

its insurance carrier as a defense against attempts by the UEF to collect statutory penalties

and reimbursement for payments it made to an injured worker, would be contrary to public

policy.
125    Because it was not incumbent upon UEF to sort through and resolve the insurance

coverage disputes between Auto Parts and the State Fund, and because UEF met its burden

of proving an absence of insurance coverage on the date of Auto Parts' employee's injury,

we hold that the Workers' Compensation Court erred in its determination that the UEF failed

to prove that Auto Parts was an uninsured employer.

                                           Issue 2.

126 Did the Workers' Compensation Court err in determining that the issue of
jurisdiction was not barred by the doctrine of collateral estoppel?

127    The Workers' Compensation Court concluded that the DL1 should have allowed Auto

Parts to raise the argument that the State Fund had improperly canceled its policy, as a

defense to UEF's claim for assessments and penalties.            However, Auto Parts had

participated in an earlier hearing in which the hearing officer determined that the DL1 did not

have jurisdiction over contract disputes between an insurance carrier and its policyholder.

Auto Parts did not appeal this order. UEF argues that this failure to appeal precludes Auto

Parts from raising the contractual issues as a defense in a second hearing, under the doctrine

of collateral estoppel. We agree.

728    The doctrines of res judicata, collateral estoppel, and law of the case are all based on

judicial policy favoring a definite end to litigation. Federated Mut. Ins. Co. v. Anderpsorz,

1999 MT 2 8 8 , l 58, 297 Mont. 33,Y 58, 991 P.2d 915,158. The doctrine of res judicata

prevents a party from relitigating a matter that the party has already had an opportunity to

litigate. Federated, 7 58.

                                              12
129    Collateral estoppel, sometimes referred to as issue preclusion, is a form of t-es

judicata. While res judicata bars parties from relitigating claims in subsequent proceedings

arising out of the same cause of action, collateral estoppel bars the reopening of an issue in

a second cause of action that has been litigated and determined in a prior suit. Holtman v.

4-G's Plumbing & Heating, Inc. (1994), 264 Mont. 432,439, 872 P.2d 318, 322.

130    This Court applies a three-part test to determine if collateral estoppel bars relitigation

of an issue. Haines Pipeline Const. v. Montana Power (1994), 265 Mont. 282,288,876 P.2d

632, 636. The test requires these inquiries: first, whether the issue decided in the prior

adjudication was identical with the one presented in the action in question; second, whether

there was a final judgment on the merits; and third, whether the party in question was a party

to or in privity with a party to the prior adjudication. Haines Pipeline, 265 Mont at 288, 876

P.2d at 636. In re Raymond W. George Trust, 1999 MT 223,Y 42,296 Mont. 56,T 42, 986

P.2d 427, 42.

131    It is clear that the second and third prongs have been met. Auto Parts brought both

actions, and did not appeal the order terminating the first action within the time period

allotted, making the order final. Satisfaction of the first prong, however, is the most

important element of collateral estoppel. Holtman, 264 Mont. at 439, 872 P.2d at 322. In

order to satisfy this prong, the identical issue or "precise question must have been litigated

in the prior action." Holtman, 264 Mont. at 439, 872 P.2d at 322. We compare the
pleadings, evidence, and circumstances of the two actions to determine whether the issues

are identical. Fadness v. Cody (1997), 287 Mont. 89,96, 951 P.2d 584, 589.

732    Collateral estoppel extends to all questions essential to the judgment and actively

determined by a prior valid judgment. Haines Pipeline, 265 Mont. at 288, 876 P. 2d at 636.

It bars the relitigation of determinative facts which were actually or necessarily decided in

a prior action. Haines Pipeline, 265 Mont. at 288, 876 P. 2d at 636. See also, Rafanelli v.

Dale, 1998 MT 331, 7 12,292 Mont. 277,Y 12, 971 P.2d 3 7 1 , l 12.

733    The Workers' Compensation Court concluded that consideration of the issue of

jurisdiction was not barred by collateral estoppel because the issues in the two matters were

not identical. It reasoned that while the order in the initial hearing addressed whether the

DL1 had jurisdiction to reach the contractual issues between Auto Parts and the State Fund

in a separate hearing, it did not say that the DL1 did not have jurisdiction to reach these issues

where the employer was challenging the UEF's ability to assess a fee. We disagree.

734    On February 4,1998, a hearing officer of the DL1 determined that the Department did

not have subject matter jurisdiction over the contractual dispute between the State Fund and

Auto Parts. The hearing officer noted that adjudication of such a dispute would be proper

in the District Court. The DL1 has only the jurisdiction granted to it by statute, and

adjudication of insurance contracts does not fall within its jurisdiction.

735    Auto Parts' failure to appeal the issue following the first hearing precludes it from

making the argument that the DL1 did have jurisdiction over this dispute in the second
hearing. We therefore hold that all three prongs of the test were met, and that relitigation in

the second proceeding of the issue of DL1jurisdiction over the contract dispute between Auto

Parts and the State Fund was barred by the doctrine of collateral estoppel.

                                             Issue 3.

7/36 Whether it was error to give DL1 jurisdiction to adjudicate a contract dispute
regarding the propriety of cancellation.

7/37   In its order, the Workers' Compensation Court further concluded that the DL1 tribunal

did have jurisdiction to address the contract dispute between the State Fund and Auto Parts

because it was operating in a quasi-judicial power. The court reasoned that the DL1 tribunal

was acting as a court, which allowed the hearing officer the power to address all issues and

facets of the case. Although we need not reach this issue in light of our rulings above, we

deem it necessary to lay to rest the question of DL1 jurisdiction over substantive coverage

disputes between an employer and its insurer

738    While an administrative body acting as a tribunal has quasi-judicial power, it does not

follow that its power is equal to the power of a district court to hear all facets of a case.

Jurisdiction in an administrative hearing, contrary to a District Court's jurisdiction, is strictly

limited by statute. "It is a basic rule of law that . . . an administrative agency, has only those

powers specifically conferred upon it by the legislature . . ." City of Polson v. Public Service

Corn 'n (1970), 155 Mont. 464,469,473 P.2d 508, 51 1, Gwynn v. Town of Eureka (1978),

178 Mont. 191, 193, 582 P.2d 1262, 1263. An administrative agency may not assume
jurisdiction without express delegation by the legislature. City of Billings v. Public Service

Com'n of Montana (1981)' 193 Mont. 358,369, 63 1 P.2d 1295, 1303.

739      There is no statutory delegation of authority to the DL1 to adjudicate the merits of

contract disputes between parties. Regulation of insurance contracts is governed by the

insurance commissioner and the relevant statutory provisions relating to insurance disputes.

Fui-ther, it appears from the record that the contract between the State Fund and Auto Pai-ts

specified that the forum for adjudicating disputes arising under the contract was the District

Court.     The DL1 cannot and should not be adjudicating disputes between insurance

companies and employers. The problems with holding otherwise are obvious. Primarily, the

State Fund would not be a party to these matters and would not be bound by a DL1 decision

on coverage. More to the point, an adjudication of coverage questions by the DL1 would

leave the UEF without a method to collect fines or amounts it has paid to the employees of

the uninsured employer. This would render the UEF system "safety net" unworkable, to the

detriment of en~ployees uninsured employers.
                      of

740      We also disagree with the Workers' Compensation Court's conclusion that Auto Pal-ts

was deprived of a due process right when it was prevented from presenting evidence relating

to the contract dispute between itself and the State Fund. Auto Parts had the opportunity to

appeal the initial order of the DL1 to the Workers' Compensation Court but it failed to do so.

Furthermore, it had the opportunity to pursue its remedies against the State Fund in district

court, and it appears from the record that the UEF delayed collection of the penalty to give
Auto Parts additional time to pursue that opportunity. Again, however, it failed to do so.

There is no denial of due process where a party fails to pursue the remedies provided.

741    For the foregoing reasons, we reverse the decision of the Workers' Compensation

Court, and affirm the DL1 finding that Auto Parts was an uninsured employer at the time of

it's employee's injury, and that Auto Parts is therefore liable to the UEF as determined in the

DL1 Final Order of May 26, 1999.




We Concur:



          Chief Justice
Chief Justice Karla M. Gray, concurring in part and dissenting in part.



742    I concur entirely in the Court's opinion on issues one and two. I respectfully dissent

from the inclusion of issue three, whether it was error to give DL1jurisdiction to adjudicate

a contract dispute regarding the propriety of cancellation, in that opinion.

743    The Court candidly--and correctly--admits that "we need not reach this issue in light

of our rulings above. . . ." Having conceded that to be true, the Court's opinion should end

after issue two.

744    Obiter dictum is a Latin phrase meaning "something said in passing." It is defined as

"[a] judicial comment made during the course of delivering a judicial opinion, but one that

is unnecessary to the decision in the case and therefore not precedential.'' BLACK'S
                                                                                   LAW

DICTIONARY (7th ed. 1999). The analysis and determination advanced by the Court in
         1100

issue three is--clearly and merely--obiter dictum in that it is unnecessary to the decision in

the case, by the Court's own admission. In my view, we should not intentionally include

obiter dictum in our opinions, which are intended to be precedential statements of the law by

this Court. While there may be many issues in cases before us--or in the more abstract

universe surrounding us--which might benefit for practical or policy reasons by an expression

of this Court's thoughts on the matter, it is my opinion that doing so is not this Court's job.

Our job is to resolve the dispositive issues in a case before us and then to move on to another

case, of which plenty await our attention.
745    In addition, the Court's discussion of the dispositive issues in this case makes its

thoughts sufficiently clear on whether contract disputes between an employer and its carrier

are within the purview of administrative proceedings. For example, the Court states at 7 21

that "[tlo require the UEF to litigate the merits of an employer's dispute with its insurance

carrier would defeat the purpose of the Workers' Compensation system." The Court also

states, at 7 23, that "Auto Parts could have pursued a separate claim in district court against

the State Fund for breach of contract" but "elected not to do so." Finally, and most clearly

and concretely, the Court states at 7 34 that "[tlhe DL1 has only the jurisdiction granted to

it by statute, and adjudication of insurance contracts does not fall within its jurisdiction."

746    I dissent from the Court's inclusion of issue three, which is obiter dictum in its

entirety, in the opinion in this case.                              A
