Stopper v. Chesapeake Insurance

Concurring Opinion by

Montgomery, J.:

I readily agree with all that has been said in the majority opinion and with its decision to affirm the lower court in refusing to strike off the original judgment or to dissolve the attachment of appellant’s funds in the hands of the garnishees. However, I hasten to *481point out that no judgment had been entered against those garnishees as was done in the case of Lewycka v. Springfield Mutual Insurance Co., 201 Pa. Superior Ct. 341, 191 A. 2d 925 (1963), in which case we refused to invalidate the attachment proceeding because of a later decree of insolvency. For that reason I think our order should contain a direction that further proceedings in the attachment be stayed until a determination of claim preferences is made in the liquidation action being conducted by the Insurance Commissioner. I do not think such issue should be resolved by us in this appeal.

Section 151 of the Maryland Code Article 48A, provides that during the pendency of delinquency proceedings in Maryland or a reciprocal state no attachments or executions shall be commenced or maintained in the courts of that state against the delinquent insurer or its assets; and further, that liens obtained within four months prior to the commencement of such delinquency proceedings shall be void as against any rights arising therein. Although this may not apply to attachments in other states, we find a similar provision in the Pennsylvania Act of 1956, March 22, P. L. (1955) 1328, §2, 40 P.S. §202, “From the date of such suspension on the ground that the suspended organization is insolvent ... no action at law or equity shall be commenced or prosecuted nor shall any judgment be entered against nor shall any execution or attachment be issued or prosecuted against the suspended company ... or against its property, in any court of this Commonwealth: . . .” (Emphasis supplied.)

It thus appears that the policy of both Maryland and Pennsylvania is to prevent the attachment of funds belonging to a delinquent insurer during the pendency of liquidation proceedings. As previously pointed out the attachment had been completed in Lewycka before liquidation was ordered.

I therefore concur, with this qualification.