Durish v. Dancer

3 Citing cases

  1. Latter v. Autry

    853 S.W.2d 836 (Tex. App. 1993)   Cited 9 times

    We must determine whether an injured party may seek recovery from the guaranty fund when the tortfeasor's insurer is in receivership, even though the party has already received insurance benefits in excess of the tortfeasor's policy limits. This Court addressed a related issue in Durish v. Dancer, 819 S.W.2d 258 (Tex.App. — Austin 1991, writ denied), in which we held that, when a plaintiff's suit against the tortfeasor has proceeded to judgment, the guaranty fund's liability is determined by offsetting any subrogation lien from the final judgment rather than from the statutory cap of $100,000; the fund's liability is confined to the tortfeasor's policy limit or $100,000, whichever is less. Dancer, however, did not involve the situation presented here of a policy limit less than the subrogation lien. Relying on Dancer's policy announcement and liability calculation, we will now hold that, when the insurance benefits a plaintiff has already recovered exceed the limits of the policy issued by the insurance company in receivership, the guaranty fund has no liability. Therefore, we will affirm the trial court's summary judgment.

  2. Stone v. Kentucky Ins. Guar. Ass'n

    908 S.W.2d 675 (Ky. Ct. App. 1995)   Cited 15 times
    Holding that “[w]hen there are no exceptions to the positive terms of a statute, the General Assembly is presumed to have intended to make none”

    Dist.Ct.App. 1989); and Florida Ins. Guar. Ass'n v. Gustinger, 390 So.2d 420, 422 n. 2 (Fla.Dist.Ct.App. 1980); Gautro v. Fidelity Fire Casualty Ins. Co., 623 So.2d 106, 109 (La.Ct.App. 1993) (the Louisiana legislature has since amended the state's insurance guarantee association act to limit LIGA's exposure for preinsolvency interest and court costs); Aztec Well Servicing Co., Inc. v. Property Casualty Ins., 115 N.M. 475, 485, 853 P.2d 726, 736 (N.M. 1993) (Montgomery, J., specially concurring and writing for a majority of the Court on the issue whether a guarantee association is liable for prejudgment interest); Kessler v. Old Guard Mut. Ins. Co., 391 Pa. Super. 175, 180, 570 A.2d 569, 572 (Pa.Super.Ct. 1990); Russell v. Pennsylvania Ins. Guar. Ass'n, 339 Pa. Super. 458, 461, 489 A.2d 251, 252 (Pa.Super.Ct. 1985); Sands v. Pennsylvania Ins. Guar. Ass'n, 283 Pa. Super. 217, 228, 423 A.2d 1224, 1229 (Pa.Super.Ct. 1980); Brodhead v. Dodgin, 824 S.W.2d 616, 622 (Tex.Ct.App. 1991); and Durish v. Dancer, 819 S.W.2d 258, 263 (Tex.Ct.App. 1991). Of these, Ramage, Sifers, Gautro, Aztec and Sands expressly permit post-judgment interest to be awarded in excess of the statutory cap on an insurance guarantee association's obligation.

  3. Brodhead v. Dodgin

    824 S.W.2d 616 (Tex. App. 1992)   Cited 11 times
    Filing error not jurisdictionally fatal

    Tex.Ins. Code Ann. art. 21.28, Sec. 8(d) (1981). We agree. As we stated in Durish v. Mayo Dancer, 819 S.W.2d 258 (Tex.App. Austin — 1991, n.w.h.), article 21.28, Sec. 8(d), "prohibit[s] a Receiver from paying prejudgment interest that otherwise would accrue after the inception of the delinquency proceeding and before the entry of the court's judgment,. . . ." Therefore, the point of error of the Receiver is sustained and the district court's judgment will be reformed to eliminate any prejudgment interest.