                                                                                     ACCEPTED
                                                                                 03-15-00314-CV
                                                                                         7126183
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                            9/28/2015 2:07:29 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                    CAUSE NO. 03-15-00314-CV

                                                                 FILED IN
                                                          3rd COURT OF APPEALS
                   IN THE THIRD COURT OF APPEALS              AUSTIN, TEXAS
                              AT AUSTIN                   9/28/2015 2:07:29 PM
                                                            JEFFREY D. KYLE
                                                                  Clerk

CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, OKLAHOMA PROPERTY
AND CASUALTY INSURANCE GUARANTY ASSOCIATION, AND TEXAS PROPERTY
     AND CASUALTY INSURANCE GUARANTY ASSOCIATION, Appellants

                                v.

           HILL BROTHERS TRANSPORTATION, INC., Appellee


              APPEAL FROM CAUSE NO. D-1-GN-09-001010
       201ST JUDICIAL DISTRICT COURT OF TRAVIS COUNTY, TEXAS
                   HON. LORA LIVINGSTON PRESIDING


                  APPELLANTS’ REPLY BRIEF


                               Dan Price (SBN 24041725)
                               James Loughlin (SBN 00795489)
                               STONE LOUGHLIN & SWANSON, LLP
                               P.O. Box 30111
                               Austin, Texas 78755
                               (512) 343-1300
                               (512) 343-1385 Fax
                               dprice@slsaustin.com

                               Attorneys for Appellants
                                       TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.      ARGUMENTS IN REPLY TO APPELLEE’S BRIEF. . . . . . . . . . . . . . . . . 4

        A.      The Guaranty Associations Present Their Own Breach of
                Contract Claims .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

        B.      The Policy, A Continuing Contract, Was Neither
                Repudiated Nor Terminated by Legion .. . . . . . . . . . . . . . . . . . . . . . . 6

                1.       Legion’s Cancellation of the Policy was Authorized
                         by the Labor Code and the Policy.. . . . . . . . . . . . . . . . . . . . . . . 6

                2.       Cancellation of the Policy in Accordance With Its
                         Terms is Not a Repudiation of the Policy.. . . . . . . . . . . . . . . . . 7

                3.       Cancellation of Coverage for Nonpayment of
                         Premium Did Not Terminate the Policy or Legion’s
                         Obligations Under the Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . 8

        C.      Hill Bros. Argues for a Legally Incorrect and Absurd
                Result. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

        D.      Conclusion in Reply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

II.     RESPONSE TO HILL BROS.’ CROSS-APPEAL. . . . . . . . . . . . . . . . . . . 12

        A.      The Guaranty Associations Are Proper Parties to Sue for
                Breach of the Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12


APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                                                         ii
              1.     The Enabling Statutes Grant the Guaranty
                     Associations the Same Rights and Duties Under the
                     Policy as Legion Would Have Had if Not Insolvent,
                     Including the Right to Reimbursement of
                     Deductibles.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

                     (a)      CIGA’s Statutory Rights and Obligations
                              Under California Law. . . . . . . . . . . . . . . . . . . . . . . . . . 13

                     (b)      OPCIGA’s Statutory Rights and Obligations
                              Under Oklahoma Law. . . . . . . . . . . . . . . . . . . . . . . . . . 14

                     (c)      TPCIGA’s Statutory Rights and Obligations
                              Under Texas Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

              2.     The Pennsylvania Insurance Receivership Laws
                     Acknowledge the Guaranty Associations’ Right to
                     Collect Deductibles from Insureds.. . . . . . . . . . . . . . . . . . . . . 16

              3.     Construing Similar Statutory Provisions, the
                     Wyoming Supreme Court Held that the Wyoming
                     Insurance Guaranty Association Has the Right to
                     Sue an Insured for Failure to Reimburse
                     Deductibles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

              4.     The Guaranty Associations’ Enabling Statutes
                     Create Contractual Privity Between Hill Bros. and
                     Each of the Guaranty Associations Related to the
                     Covered Claims Paid Under the Policy. . . . . . . . . . . . . . . . . . 19

              5.     Hill Bros.’ Citation of Reinsurance Cases is
                     Misplaced. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

       B.     Conclusion in Response to Hill Bros. Cross-Appeal. . . . . . . . . . . . . 23




APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                                                iii
CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25




APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                                       iv
                                  INDEX OF AUTHORITIES

Cases:

General Reinsurance Corp. v. Am. Bankers Ins. Co.,
996 A.2d 26 (Pa. Commw. Ct. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22

Group Life and Health Ins. Co. v. Turner,
620 S.W.2d 670, 673 (Tex.App.–Dallas 1981, no writ) . . . . . . . . . . . . . . . . . . . 7-8

Hudson Environmental Servs., Inc. v. New Jersey Property-Liability Ins. Guar. Ass’n,
372 N.J.Super. 284, 308, 858 A.2d 39, 53 (N.J. Sup. Ct. 2004). .. . . . . . . . . . . . . 20

In re Imperial Ins. Co.,
157 Cal. App. 3d 290, 296 (Cal. Ct. App. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . 13

Moore v. Jenkins,
109 Tex. 461, 211 S.W. 975 (1919). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Okla. ex rel. Doak v. Staffing Concepts Intern., Inc.,
CIV-12-409-C, 2014 WL 296643, *2 (W.D. Okla. Jan. 24, 2014). . . . . . . . . . . . 15

Sembera Sec. Sys., Inc. v. Tex. Mut. Ins. Co.,
No. 01-07-00310-CV, 2009 WL 214573, *7
(Tex.App.–Houston [1st Dist.] Jan. 29, 2009, pet. denied) (mem. op.). .. . . . . . . . . 8

Texas Workers’ Compensation Comm’n v. Garcia,
893 S.W.2d 504, 523 (Tex. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Va. Prop. & Cas. Ins. Guar. Ass’n v. Int’l Ins. Co.,
238 Va. 702, 385 S.E.2d 614, 616 (Va. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Wyoming Medical Center, Inc. v. Wyoming Insurance Guaranty Association,
225 P.3d 1061, 1068 (Wyo. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-19




APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                                            v
Statutes:

CAL. INS. CODE §1063.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CAL. INS. CODE §1063.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

36 OKLA. STAT. ANN. § 2007(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14

40 PA. CONS. STAT. § 221.23a(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

40 PA. CONS. STAT. § 221.23a(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 21-22

40 PA. CONS. STAT. § 221.23a(i).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16, 22

TEX. INS. CODE. art. 21.28-C § 8(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TEX. INS. CODE. art. 21.28-C § 11(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TEX. LAB. CODE. § 401.001.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. LAB. CODE. § 406.008(a)(2)(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TEX. LAB. CODE. § 406.031(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. LAB. CODE § 408.021. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Rules:

TEX. R. APP. P. 9.4(i)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25




APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                                                    vi
       Appellants CIGA, OPCIGA, and TPCIGA (collectively, the “Guaranty

Associations”) file this their Reply in support of Appellants’ Brief asking the Court

to reverse the summary judgment granted against them on the issue of limitations.

                           SUMMARY OF ARGUMENT

       The Guaranty Associations sued Hill Bros. to recover deductible payments they

made on “covered claims” within the deductible limits of the Policy from March 3,

2003 to April 28, 2009. The Policy is a continuing contract in which the contemplated

performance and payment were divided into several parts and where the

administration of the claims covered by the Policy was continuous and indivisible.

The statute of limitations did not begin to accrue on this continuing contract until the

Guaranty Associations made demand on Hill Bros. to reimburse deductibles and Hill

Bros. repudiated its obligation to reimburse the deductible payments.

       Hill Bros. discounts the significance of the continuing contract by presenting

two legally incorrect arguments to reach an untenable and absurd result. First, Hill

Bros. argues the Guaranty Associations assert Legion’s breach of contract claims

rather than their own. Second, Hill Bros. argues that Legion repudiated or terminated

the Policy effective June 6, 2002, after Hill Bros. stopped paying premium on April

1, 2002. One or both of these actions, according to Hill Bros., triggered the statute of

limitations on any and all claims under the Policy. Because Legion’s cause of action

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                        1
allegedly accrued on April 1, 2002 or June 6, 2002, Hill Bros. concludes the Guaranty

Associations were required to file what would be a non-justiciable suit against Hill

Bros. as early as April 1, 2002, for Hill Bros.’ failure to reimburse the Guaranty

Associations for deductible payments the Guaranty Associations would make in the

future from March 4, 2003 through April 28, 2009.1 The Court must reject Hill Bros.’

arguments.

       The Guaranty Associations present their own breach of contract claims to

recover deductible payments which they made in accordance with the Policy for the

benefit of Hill Bros.’ injured workers. Deductible recoveries by the Guaranty

Associations are not assets of the estate of Legion in Liquidation.

       Even assuming, solely for the sake of argument, that the Guaranty Associations

were asserting Legion’s cause of action, the statute of limitations still did not accrue

on or about April 1, 2002, as alleged. The Policy, a continuing contract, was neither

terminated nor repudiated by Legion. In accordance with the express terms of the

Policy and the Texas Workers’ Compensation Act, Legion was permitted to cancel

coverage effective June 6, 2002, for nonpayment of premium.2 No action of either

       1
               Appellants’ Br. at 10.
       2
               In a likely typographical error, Hill Bros. cites in its brief that the Policy was
cancelled effective on both June 2, 2002, and June 6, 2002. See Appellee’s Br. at 3 (06/06/02), 5-6,
9, 11-13 (06/02/02). Legion cancelled coverage under the Policy effective June 6, 2002, at 12:01 a.m.
(CR 2095).

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                                    2
party terminated Legion’s obligation to pay workers’ compensation benefits to or for

the benefit of Hill Bros.’ employees injured within the Policy period. Similarly, no

action of either party terminated Hill Bros.’ obligation to reimburse Legion to the

extent such benefit payments were made within the deductible limits of the Policy.

Because the Policy was neither terminated nor repudiated by Legion on or about April

1, 2002, the statute of limitations did not accrue until Hill Bros. refused to reimburse

the Guaranty Associations on demand for their payment of deductibles.

       On cross-appeal, Hill Bros. argues the Guaranty Associations do not have

standing to bring their breach of contract claims. The Court must reject Hill Bros.’

appeal because each of the Guaranty Associations is empowered with all of the rights,

duties, and obligations that the insolvent insurer would have had under the Policy.

These rights, duties, and obligations with respect to the Policy create contractual

privity between the insured and each guaranty association to the extent of the

guaranty associations’ payment of “covered claims” under the Policy.




APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                        3
                          ARGUMENT AND AUTHORITIES

I.     ARGUMENTS IN REPLY TO APPELLEE’S BRIEF

       The Guaranty Associations’ claims against Hill Bros. for failure to reimburse

deductibles are not barred by limitations. The Guaranty Associations present their

own claims to recover their own assets from Hill Bros. in accordance with the Policy.

Their breach of contract claims under the Policy, a continuing contract, did not accrue

until Hill Bros. refused to meet its deductible obligations by reimbursing the

Guaranty Associations for their payment of “covered claims.” Because Hill Bros.’

refusal did not occur until after March 31, 2005 (i.e., four years before suit was filed

on March 31, 2009), the Guaranty Associations’ claims are not barred by the statute

of limitations.

A.     The Guaranty Associations Present Their Own Breach of Contract Claims

       The Guaranty Associations sued Hills Bros. to recover post-impairment and

post-liquidation deductible payments which they made within the deductible limits

of the Policy.3 They do not seek to recover any deductible payments made by Legion

or Legion in Liquidation.4



       3
               Appellants’ Br. at 10 (identifying the first and last of the deductible payments for
which each of the Guaranty Associations seek reimbursement in this case).
       4
               Appellants’ Br. at 10.

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                                  4
       In accordance with Pennsylvania law, the law governing the liquidation of

Legion in the Commonwealth Court of Pennsylvania, recoveries of deductible

payments made by the state guaranty associations are assets of the guaranty

associations and are treated as such by the insolvent insurer’s estate. See 40 PA. STAT.

§ 221.23a(f)(1) (“When the policyholder reimbursements are collected, the receiver

shall promptly reimburse such guaranty association for claims paid that were subject

to the deductible.”); 40 PA. STAT. § 221.23a(g) (“Any resulting recoveries under the

deductible reimbursement policy shall be payable to the guaranty associations to the

extent of claims paid within the deductible.”).5 The Pennsylvania statute expressly

acknowledges that the state guaranty associations may collect deductibles directly

from the policyholder. See 40 PA. STAT. § 221.23a (i)(2) (“To the extent that guaranty

associations pay claims within the deductible amount but are not reimbursed by either




       5
               The Pennsylvania statute, 40 PA. STAT. § 221.23a, is available at Tab 6, App.,
Appellants’ Br. This Pennsylvania law is consistent with a similar Texas statute which became
effective on September 1, 2005. See e.g., TEX. INS. CODE ANN. § 443.213(h)(1) (“At the time the
policyholder reimbursements are collected, the receiver shall promptly forward those amounts to the
guaranty association, based on the claims paid by the guaranty association that were subject to the
deductible.”). Because the statute was not in effect on the date Legion became an impaired insurer
on October 25, 2002, the statute is cited for illustrative purposes only. See Appellants’ Br. at 2, n.
2.

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                                     5
the receiver under this section or by policyholder payments from the guaranty

association’s own collection efforts, the guaranty association shall have a claim in the

insolvent insurer’s estate for such unreimbursed claim payments.”).6

       Because the Guaranty Associations allege only that Hill Bros. breached the

Policy by failing to reimburse the Guaranty Associations for the deductible payments

the Guaranty Associations made under the Policy, they are asserting their own causes

of action against Hill Bros. for breach of the Policy. The Guaranty Associations are

not asserting any cause of action belonging to Legion.

B.     The Policy, A Continuing Contract, Was Neither Repudiated Nor
       Terminated by Legion

       The Policy was a continuing contract that was neither repudiated or terminated

by Legion effective June 6, 2002, following Hill Bros. nonpayment of premium on

April 1, 2002.7

       1.     Legion’s Cancellation of the Policy was Authorized by the Labor Code
              and the Policy

       In accordance with the Texas Labor Code, an insurer is authorized to cancel a

workers’ compensation policy for nonpayment of premium. TEXAS LABOR CODE

§406.008(a)(2)(C) provides that a workers’ compensation insurer may cancel a policy


       6
              Appellants’ Br., App. Tab 6.
       7
              See Appellants’ Br. at 29-32.

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                        6
on ten days written notice for “failure to pay premium when due.” The Policy tracks

this statutory language in the Texas Amendatory Endorsement at CIGA 236: “We

may cancel this policy. . . . we may send notice [of cancellation or nonrenewal] not

later than the 10th day before the date on which the cancellation or nonrenewal

becomes effective if we cancel or nonrenew because of: . . . (b) Failure to pay a

premium when payment was due.”8 In addition, each state specific endorsement

included in the Policy, as well as the main policy language, confirm repeatedly the

insurer’s right to cancel the Policy for nonpayment of premium.9 In accordance with

the express language of the Policy and consistent with the Texas Labor Code, Legion

was authorized to cancel the Policy for nonpayment of premium.

        2.      Cancellation of the Policy in Accordance With Its Terms is Not a
                Repudiation of the Policy

        Repudiation of a contract consists of words or conduct of a contracting party

which show a fixed intention to abandon, renounce, and refuse to perform the

        8
                Appellant’s Br., App., Tab 4 at CIGA 236.
        9
                 Appellants’ Br., App., Tab 4 at CIGA 221 (Workers’ Compensation and Employers
Liability Policy: “We may cancel this policy . . . . The policy period will end on the day and hour
stated in the cancelation notice.”), CIGA 229 (Kansas Cancelation and Nonrenewal Endorsement:
“We may cancel this policy. . . . If this policy has been in effect for 90 days or more, we may cancel
only for one of the following reasons: (a) nonpayment of premium.”), CIGA 231 (Nebraska
Cancelation and Nonrenewal Endorsement: “We may cancel or nonrenew this policy within the
policy period . . . . the cancelation shall be effective ten (10) days after the giving of the notice if the
cancelation is based on: (a) nonpayment of premiums.”), CIGA 233 (Oklahoma Cancelation,
Nonrenewal and Change Endorsement: “If this policy has been in effect for more than 45 days, we
may cancel only for one of the following reasons: (a) Nonpayment of premium.”).

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                                           7
contract. Group Life and Health Ins. Co. v. Turner, 620 S.W.2d 670, 673 (Tex.

App.–Dallas 1981, no writ) (citing Moore v. Jenkins, 109 Tex. 461, 211 S.W. 975

(1919)).

       An insurance carrier’s cancellation of a workers’ compensation policy for

nonpayment of premium, in accordance with the express terms of the policy, is

conduct consistent with the terms of the contract and does not show a fixed intention

to abandon, renounce, and refuse to perform the contract. See Sembera Sec. Sys., Inc.

v. Tex. Mut. Ins. Co., No. 01-07-00310-CV, 2009 WL 214573, *7 (Tex.App.–Houston

[1st Dist.] Jan. 29, 2009, pet. denied) (mem. op.) (holding that cancellation of a

workers’ comp policy for nonpayment of premium is not, as a matter of law, a breach

of contract by the workers’ compensation carrier).

       Because the Policy, as well as applicable law, afforded Legion the express right

to cancel coverage for nonpayment of premium effective June 6, 2002, Legion did not

repudiate the Policy.

       3.     Cancellation of Coverage for Nonpayment of Premium Did Not
              Terminate the Policy or Legion’s Obligations Under the Policy

       While the policy period ended on the day and hour stated in the cancellation

notice provided to Hill Bros, in accordance with Texas Law and the Policy, Legion

remained liable to provide workers’ compensation benefits for all claims incurred



APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                       8
within the policy period and Hill Bros. remained liable to reimburse deductible

payments made on all such claims.

       Under the terms of the Policy, the workers’ compensation insurance applies to

“[b]odily injury by accident [which] must occur during the policy period.”10 When the

Policy was cancelled by Legion, the contract provides that the policy period ended

on the effective date of cancellation of coverage: “The policy period will end on the

day and hour stated in the cancelation notice.”11

       The Policy language tracks the requirements of TEXAS LABOR CODE §

406.031(a), which mandates that coverage extends to any employee injured within the

policy period. “An insurance carrier is liable for compensation for an employee’s

injury without regard to fault or negligence if: (1) at the time of injury, the employee

is subject to this subtitle . . . .” Id. (Emphasis supplied).12

       Under no interpretation of the Policy or Texas Law did the cancellation of

coverage on June 6, 2002, terminate Legion’s obligations to continue providing

workers’ compensation benefits to Hill Bros.’ employees who were injured during the

policy period.


       10
              See Appellants’ Br., App., Tab 4 at CIGA 217.
       11
              See Appellants’ Br., App., Tab 4 at CIGA 221.
       12
              The subtitle is the Texas Workers’ Compensation Act. See TEX. LAB. CODE §
401.001.

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                        9
C.     Hill Bros. Argues for a Legally Incorrect and Absurd Result

       In this case, Hill Bros. argues the Guaranty Associations’ breach of contract

claims against Hill Bros. for failure to reimburse deductibles accrued on April 1,

2002, when Hill Bros. stopped paying premium to Legion. The logical consequence

of Hill Bros.’ argument is that the statute of limitations for any contract claim under

a workers’ compensation policy accrues on the date the insured elects to stop paying

premium irrespective of when the actual injury occurs. This interpretation is incorrect

as a matter of law and would effect an absurd result.

       Hill Bros.’ accrual date is incorrect as a matter of law because, if the statute of

limitations accrues for any and all breach of claims on the date the insured elects to

stop paying premium, then the insurer would be required to sue as early as the accrual

date to recover benefits payments that would be made within the deductibles in the

future. This cannot be correct. On this proposed accrual date, the insurer’s claim is

not yet ripe because there has been neither payment by the insured nor injury to the

insurer. For this reason, the accrual date for future deductible payments cannot occur

on the date the insured stops paying premium. Hill Bros.’ argument to the contrary

is incorrect as a matter of law.

       Hill Bros.’ proposed accrual date would effect an absurd result because large

deductible insurers would be left in the lurch without recourse by any insured who

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                         10
elects to stop paying premium prior to the end of the policy period stated in the

contract. Even if an insured stops paying premium resulting in the cancellation of

coverage, the insurer will remain obligated to continue providing benefits for the

insured’s workers injured prior to the cancellation date of the policy. If the applicable

policy contains per claim or aggregate deductibles, the insured would also remain

liable to reimburse deductibles in the future until the applicable deductible limit is

reached. Because an injured worker is entitled to lifetime medical benefits for a

compensable injury in Texas, the continuing obligations to pay benefits and

reimburse deductibles will likely continue many years into the future. See Texas

Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 523 (Tex. 1995)

(“Workers covered by the Act receive lifetime medical benefits. . . .”); TEX. LAB.

CODE § 408.021. If the statute of limitations expires on any and all breach of contract

claims four years after the insured stops paying premium, then the insurer could never

collect deductible payments made more than four years after that date even though

the deductible limits had not been reached. Hill Bros.’ proposed accrual date would

rewrite all large deductible workers’ compensation policies so that the insureds will

not be liable for deductible obligations incurred more than four years after the policy

period ends. Hill Bros. asks the Court to effect an absurd result.




APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                        11
D.      Conclusion in Reply

        In sum, in the absence of a repudiation or termination by Legion, the statute of

limitations did not begin to accrue on the Guaranty Associations’ claim against Hill

Bros. for breach of the Policy until they made demand on Hill Bros. and Hill Bros.

repudiated its continuing obligation under the Policy to reimburse the Guaranty

Associations for their payments of “covered claims” within the deductible limits of

the Policy.

II.     RESPONSE TO HILL BROS.’ CROSS-APPEAL

A.      The Guaranty Associations Are Proper Parties to Sue for Breach of the
        Policy

        1.      The Enabling Statutes Grant the Guaranty Associations the Same Rights
                and Duties Under the Policy as Legion Would Have Had if Not
                Insolvent, Including the Right to Reimbursement of Deductibles

        The guaranty association statutes of California, Oklahoma, and Texas direct the

guaranty associations in each of the states to pay “covered claims,” under policies of

insurance issued by insolvent insurers licensed in their respective states. To the extent

of their payment of “covered claims,” the statutes grant the guaranty associations all

rights, duties, and obligations under the Policy,13 including the causes of action the

        13
                CAL. INS. CODE ANN. §1063.2(b) (West 2002) (CIGA “shall have the same rights as
the insolvent insurer would have had if not in liquidation. . . .”); 36 OKLA. STAT. ANN. § 2007(A)(2)
(West 2002) (OPCIGA shall “[b]e deemed the insurer to the extent of the obligations on covered
claims and to that extent shall have all rights, duties and obligations of the insolvent insurer as if the
insurer had not become insolvent.”).

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                                        12
insolvent insurer would have had against the insured for breach of the Policy if the

insurer had not been in liquidation.

                (a)     CIGA’s Statutory Rights and Obligations Under California Law14

        Under California Law, Appellant CIGA “shall pay and discharge covered

claims. . . .” CAL. INS. CODE §1063.2(a). CIGA is a “party in interest in all

proceedings involving a covered claim,” and to that extent, “shall have all rights as

the insolvent insurer would have had if not in liquidation, including, but not limited

to, the right to: (1) appear, defend, and appeal a claim in a court of competent

jurisdiction; (2) receive notice of, investigate, adjust, compromise, settle, and pay a

covered claim.” CAL. INS. CODE §1063.2(b). Discussing CAL. INS. CODE §1063.2(b),

a California appellate court concluded,“A necessary concomitant of these rights and

duties is entitlement to the policy deductible.” In re Imperial Ins. Co., 157 Cal. App.

3d 290, 296 (Cal. Ct. App. 1984).15

        Under the California statute, CIGA is entitled to reimbursement of deductibles

under the Policy.




        14
                The statutes governing CIGA are available at Appellants’ Br., App. Tab 2.
        15
                   In re Imperial Ins. Co., 157 Cal. App. 3d 290, 296 (Cal. Ct. App. 1984) (“CIGA is
given the ‘same rights as the insolvent insurer would have had if not in liquidation, including . . . the
right to . . . adjust, compromise, settle, and pay a covered claim. . . .” (Ins. Code §1063.2, subd. (b).)
A necessary concomitant of these rights and duties is entitlement to the policy deductible.”).

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                                        13
              (b)    OPCIGA’s Statutory Rights and Obligations Under Oklahoma
                     Law16

       The Oklahoma guaranty statute obligates Appellant OPCIGA to “pay the

covered claims . . . ,” 36 OKLA. STAT. ANN. §2007(A) (West 2002), but expressly

limits that obligation to the limits of the underlying policy. 36 OKLA. STAT. ANN.

§2007(A) (flush language) (West 2002) (“In no event shall the Association be

obligated to pay a claimant in an amount in excess of the obligation of the insurer

under the policy . . . from which the claim arises . . . .”). To the extent of its covered

claim obligations, the Oklahoma act expressly grants OPCIGA all rights, duties and

obligations of the insolvent insurer as if the insurer had not become insolvent. 36

OKLA. STAT. ANN. §2007(A) (West 2002) (“The Association shall . . . (2) Be deemed

the insurer to the extent of the obligations on covered claims and to that extent shall

have all rights, duties and obligations of the insolvent insurer as if the insurer had not

become insolvent.”). Because Legion would have had the right to enforce the

deductible provisions under the Policy if it had not become insolvent, under the




       16
              The statutes governing OPCIGA are available at Appellants’ Br., App. Tab 3.

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                             14
Oklahoma act, so too does OPCIGA have the right to enforce the deductible

provisions of the Policy to the extent of its payment of covered claims.17

               (c)    TPCIGA’s Statutory Rights and Obligations Under Texas Law18

       Finally, the Texas guaranty act requires Appellant TPCIGA “to discharge the

policy obligations of the impaired insurer, . . . to the extent that the policy obligations

are covered claims under [the Texas guaranty act].” TEX. INS. CODE. art. 21.28-C

§8(b). The Texas act also grants TPCIGA the right to “enforce any duty imposed on

the insured party or beneficiary under the terms of any policy of insurance within the

scope of [the Texas guaranty act].” Id. The right to enforce such duties includes the

right to sue the insured for any cause of action the impaired insurer would have had

if the impaired insurer had not become insolvent. TEX. INS. CODE. art. 21.28-C §11(a)

(“Each insured or claimant seeking the protection of this Act shall cooperate with the

association to the same extent as that person would have been required to cooperate

with the impaired insurer. The association does not have a cause of action against the



       17
               A recent slip opinion from the United States District Court for the Western District
of Oklahoma provides instructive guidance on the rights of Plaintiff OPCIGA to recover deductibles.
Okla. ex rel. Doak v. Staffing Concepts Intern., Inc., CIV-12-409-C, 2014 WL 296643, *2 (W.D.
Okla. Jan. 24, 2014) (“Because the guaranty associations may independently seek to recover
deductible reimbursements from SCI, and the Receiver has not been injured with respect to the
guaranty association-paid claims, the Court concludes the Receiver ‘lacks the requisite interest to
have standing to represent the interests of the Guaranty Associations in this matter.’”).
       18
               The statutes governing TPCIGA are available at Appellants’ Br., App. Tab 1.

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                                 15
insured of the impaired insurer for any sums it has paid out except those causes of

action the impaired insurer would have had if the sums had been paid by the impaired

insurer and except as provided in Subsection (b) of this section.”).

       In this case, the duty to reimburse deductibles under the Policy is a duty

imposed on the insured Hill Bros. under the terms of the Policy itself. Under the

powers granted by the Texas guaranty act, TPCIGA may enforce Hill Bros.’

contractual duty to reimburse deductibles. Moreover, because the impaired insurer,

Legion, would have had a cause of action against Hill Bros. for Hill Bros.’ failure to

reimburse deductibles to Legion, so too does TPCIGA have a cause of action against

Hill Bros. for Hill Bros.’ failure to reimburse deductibles to TPCIGA.

       2.     The Pennsylvania Insurance Receivership Laws Acknowledge the
              Guaranty Associations’ Right to Collect Deductibles From Insureds

       As discussed briefly above, the Pennsylvania insurance receivership statute

expressly acknowledges that the Guaranty Associations may collect deductibles

directly from the policyholder. The statute states in pertinent part, “To the extent that

guaranty associations pay claims within the deductible amount but are not reimbursed

by either the receiver under this section or by policyholder payments from the

guaranty association’s own collection efforts, the guaranty association shall have a




APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                        16
claim in the insolvent insurer’s estate for such unreimbursed claim payments.” 40 PA.

STAT. § 221.23a (i)(2) (emphasis supplied).19

       3.     Construing Similar Statutory Provisions, the Wyoming Supreme Court
              Held that the Wyoming Insurance Guaranty Association Has the Right
              to Sue an Insured for Failure to Reimburse Deductibles

       Whether a state guaranty association may recover deductibles from an insured

is not a matter of first impression.

       In Wyoming Medical Center, Inc. v. Wyoming Insurance Guaranty Association,

225 P.3d 1061 (Wyo. 2010),20 the Wyoming Supreme Court addressed in depth the

question of whether the Wyoming Insurance Guaranty Association (“WIGA”) had the

right to sue an insured for breach of contract where the insured failed to reimburse

WIGA for deductibles paid in accordance with a policy issued by an insolvent

insurer. The court discussed WIGA’s powers and duties granted by the Wyoming

Insurance Guaranty Association Act (the “Wyoming Act”), citing the following

relevant provisions. Id. at 1066.

              “[WIGA shall:] Be obligated to pay covered claims:”

Id. (citing WYO. STAT. ANN. §21-31-106(a)(I)) (emphasis in original).

              “[WIGA shall:] Be deemed the insurer to the extent of its
              obligation of the covered claims and to that extent has all

       19
              Appellants’ Br., App. Tab 6.
       20
              See Appellants’ Br., App. Tab 5.

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                    17
              rights, duties and obligations of the insolvent insurer as if
              the insurer were not insolvent;”

Id. (citing WYO. STAT. ANN. §21-31-106(a)(ii)) (emphasis in original).

              “Notwithstanding subsection(a)of [§21-31-106], [WIGA]:

              ....

              (iv) Is not obligated to pay a claimant an amount in
              excess of the obligation of the insolvent insurer under the
              policy or coverage from which the claim arises.”

Id. (citing WYO. STAT. ANN. §21-31-106(c)(iv)).

              “[WIGA] has no cause of action against the insolvent
              insurer’s insured for any sums it has paid out except the
              causes of action as the insolvent insurer would have had if
              it had paid those sums.”

Id. (citing WYO. STAT. ANN. §21-31-110(a)).

       Construing the foregoing statutory language from the Wyoming Act, the Court

explained the plain language of the statute reflects a legislative intent that WIGA is

obligated to pay claims of the insured to the same extent as the insolvent insurer had

the insurer not become insolvent. Id. at 1067. If the insurer had not become insolvent,

the insurer would have been required to pay claims under the subject policy, less the

deductibles. Id. The insured, for its part, was required to pay the deductibles to the

insurer in accordance with the insurance contract. Id. at 1067.




APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                      18
       Had [the insured] refused to pay the deductibles, it would have been in
       breach of the insurance contract and a solvent [insurer] could have
       sought recovery from [the insured] of the deductible amounts. WIGA’s
       rights and duties are no more and no less than [the insolvent insurer’s]
       would have been. Construing the statutory language otherwise would
       leave [the insured] in a better position as a result of WIGA’s
       involvement than it would have been if [the insurer] had not been
       insolvent, a result we are not convinced the legislature intended.

Id. (emphasis supplied). The Court concluded that WIGA is “entitled to

reimbursement of deductibles just as [the insurer] would have been had it remained

solvent.” Id. at 1068.

       The statutory language from the Wyoming Act addressed above is virtually

identical to the statutes applicable to CIGA, OPCIGA, and TPCIGA. If Hill Bros.

refused to pay the deductibles to Legion, it would have been in breach of the

insurance contract and Legion could have sought recovery from Hill Bros. for the

deductible amounts. Because Appellants have the same rights and duties as Legion

with respect to “covered claims” paid under the Policy and within the deductible

amounts, Appellants are entitled to reimbursement of the deductibles just as Legion

would have been.




APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                   19
       4.      The Guaranty Associations’ Enabling Statutes Create Contractual
               Privity Between Hill Bros. and Each of the Guaranty Associations
               Related to the Covered Claims Paid Under the Policy

       The statutory rights, duties, and obligations of the Guaranty Associations to

pay covered claims under the Policy in accordance with their respective statutes

creates contractual privity between the insured Hill Bros. and each of the Guaranty

Associations to the extent of each Guaranty Association’s payment of “covered

claims.”

       Construing the Virginia guaranty association statute, the Supreme Court of

Virginia explained, “The insolvency of [the insurer] created a legal relationship

between [the insured] and the [Virginia Property and Casualty Insurance Guaranty]

Association which reflected the terms of the [insurance] policy only to the extent they

were not otherwise limited by the [Virginia] Act.” Va. Prop. & Cas. Ins. Guar. Ass’n

v. Int’l Ins. Co., 238 Va. 702, 385 S.E.2d 614, 616 (Va. 1989). Stated differently, to

the extent of payment of covered claims, privity between the guaranty associations

and the insured is created at the time the guaranty associations’ obligations are

triggered through an insurer’s insolvency or impairment.21

       21
                 See Hudson Environmental Servs., Inc. v. New Jersey Property-Liability Ins. Guar.
Ass’n, 372 N.J.Super. 284, 308, 858 A.2d 39, 53 (N.J. Sup. Ct. 2004). In an effort to avoid liability
for a bad faith claim, the New Jersey Property and Liability Insurance Guaranty Association argued,
in part, that it was not be liable to the insured because the insured and the New Jersey association
lacked privity of contract under the subject policy. The New Jersey court rejected this argument:
“Indeed, the privity argument seems to fly in the face of the express provision of the Act, under

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                                   20
        To the extent of their payment of covered claims under the Policy, the Guaranty

Associations are in contractual privity with Hill Bros.

        5.      Hill Bros.’ Citation of Reinsurance Cases is Misplaced

        In support of its argument that the Guaranty Associations are not proper parties

to sue for breach of the workers’ compensation policy, Hill Bros. cites the Court to

General Reinsurance Corp. v. Am. Bankers Ins. Co., 996 A.2d 26 (Pa. Commw. Ct.

2009). Hill Bros. argues that, because a state guaranty association is not entitled to

direct access to reinsurance proceeds in a suit with a reinsurer, then the Guaranty

Associations do not have standing to collect deductibles under the Policy. The Gen

Re court explained at least two critical facts about the reinsurance treaty at issue in

the case which show Hill Bros.’ citation is misplaced.

        First, and most importantly, the Gen Re court explained, reinsurance proceeds

are general assets of Legion’s estate. Id. at 36 (“The general rule is that reinsurance

recoveries are general assets of the insolvent insurer estate.”) (internal citations

omitted). In contrast, Pennsylvania insurer receivership law provides that deductible

recoveries for covered claims paid by state guaranty associations are assets belonging

to the guaranty associations. (citing 40 PA. STAT. § 221.23a (g) (“Any resulting


which PLIGA assumes the insolvent insurer’s contractual obligations and has ‘all rights, duties and
obligations of the insolvent insurer.’ At bottom, the problem with the privity analysis . . . is that [it
is] unmoored to the language of the [New Jersey guaranty statute].” Id. (Internal citations omitted).

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                                       21
recoveries under the deductible reimbursement policy shall be payable to the guaranty

associations to the extent of claims paid within the deductible.”).22

       Second, the reinsurance treaty at issue in the Gen Re case contained an

Insolvency Clause which expressly required the reinsurer to pay all reinsurance

proceeds to the insurer or the liquidator in the event of insolvency: “In the event of

the insolvency of [Legion], the reinsurance proceeds will be paid to [Legion] or the

liquidator on the basis of the claim allowed in the insolvency proceeding without

diminution by reason of the inability of [Legion] to pay all or part of the claim.” Id.

at 38. In contrast, Pennsylvania law expressly provides that the Guaranty

Associations have the right to collect deductibles due under the Policy on “covered

claims.” 40 PA. STAT. § 221.23a (i)(2) (“To the extent that guaranty associations pay

claims within the deductible amount but are not reimbursed by either the receiver

under this section or by policyholder payments from the guaranty association’s own

collection efforts, the guaranty association shall have a claim in the insolvent

insurer’s estate for such unreimbursed claim payments.”) (emphasis supplied).23

       Whether the Guaranty Associations have standing to pursue collection of

reinsurance proceeds directly from a reinsurer under a reinsurance treaty has no


       22
              See supra I(A).
       23
              See supra II(A)(2).

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                      22
bearing on whether the Guaranty Associations have standing to sue to collect

deductibles under a workers’ compensation policy. Hill Bros.’ citation of the Gen Re

case is misplaced and provides no support for its argument that the Guaranty

Associations do not have standing to collect deductibles.

B.     Conclusion in Response to Hill Bros. Cross-Appeal

       The enabling statutes in the Appellants’ states of residency grant the Guaranty

Associations the same rights, duties, and obligations as the insolvent insurer to the

extent of payment of covered claims. These rights include not only the right to

reimbursement of deductibles, but also the right to sue Hill Bros. to enforce that

right–a right acknowledged under Pennsylvania Law. Appellants are unquestionably

proper parties to sue for breach of the Policy. Hill Bros.’ cross-appeal lacks merit.

                           CONCLUSION AND PRAYER

       The Guaranty Associations ask the Court to reverse the trial court’s award of

summary judgment based on the statute of limitations defense. As a matter of law, the

statute of limitations did not begin to run against the Guaranty Associations until they

either fully performed the continuing contract or Hill Bros. repudiated its deductible

obligation to the Guaranty Associations. The earliest either of these events occurred

was February 19, 2007, well within four years prior to the Guaranty Associations

filing suit on March 31, 2009.

APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                       23
       The Guaranty Associations’ enabling statutes grant them the right to collect the

deductibles; and Pennsylvania insurer receivership law acknowledges this right. The

Guaranty Associations have standing and are proper parties to sue for breach of

contract in this case.

       For the reasons stated, the Guaranty Associations, Appellants, ask the Court

to reverse the District Court’s summary judgment and to remand the case for further

proceedings.

                                          Respectfully submitted,

                                          STONE LOUGHLIN & SWANSON, LLP
                                          P.O. Box 30111
                                          Austin, Texas 78755
                                          (512) 343-1300
                                          (512) 343-1385 Fax
                                          dprice@slsaustin.com


                                          By:
                                                 Dan Price (SBN 24041725)
                                                 James Loughlin (SBN 00795489)

                                          Attorneys for Appellants




APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                      24
                                               CERTIFICATE OF COMPLIANCE

             Relying on the word count of the computer program used to prepare

Appellants’ Reply Brief, the total number of words in this document, excluding

sections that are not to be counted under TEX. R. APP. P. 9.4(i)(1), is 5,464.




                                                                    Dan Price


                                                      CERTIFICATE OF SERVICE

             I hereby certify that on September 28, 2015, a true and correct copy of the

foregoing document served as indicated to the parties listed below.

             Via e-Filing/e-Service
             Patrick Pearsall
             Adrian Ciechanowicz
             DUGGINS WREN MANN & ROMERO, LLP
             P.O. Box 1149
             Austin, Texas 78767-1149
             Telephone: (512) 744-9300

             E-mail: pPearsall@dwmrlaw.com
             E-mail: aCiechanowicz@dwmrlaw.com




                                                                    Dan Price
G:\SLS\21744\Appeal\Drafts\2015-09-28 Appellants' Reply Brief.wpd




APPELLANTS’ REPLY BRIEF, Cause No. 03-15-00314-CV—SLS No. 21744                       25
