(dissenting).
I respectfully dissent from the majority’s opinion. Because Levi Strauss is a self-insurer under the Workers’ Compensation Act, I am convinced that the subject policies constitute policies for “reinsurance.” Reinsurance is “[a] contract that one insurer makes with another to protect the latter from a risk already assumed.” Black’s Law Dictionary 1157 (5th ed. 1979).
While the policies of reinsurance are considered “direct insurance” as between the self-insurer Levi Strauss and the reinsurer Mission, the New Mexico Guaranty Act was not intended to apply to reinsurance.1 Because a claim against a reinsurer necessarily concerns an amount due the insurer, the insolvency of a reinsurer could not be the basis of the “covered claim.” See Zinke-Smith, Inc. v. Florida Ins. Guar. Assoc., Inc., 304 So.2d 507 (Fla.Dist.Ct.App.1974). Nor is it relevant that Levi Strauss is not an insurance company in the business of supplying insurance to others. A policy in the nature of reinsurance does not exist only between two insurance companies. Provided one party is an insurer,2 as is the case here, a policy that indemnifies with respect to the assumed risk represents reinsurance. See Friend Bros. v. Seaboard Sur. Co., 316 Mass. 639, 56 N.E.2d 6 (1944) (a contract of insurance between a self-insured employer and an insurer of a portion of that employer’s assumed risk represents reinsurance); Loblaw, Inc. v. Employer’s Liab. Assurance Corp., 85 A.D.2d 880, 446 N.Y.S.2d 743 (1981) (same); McQueen v. Great Markwestern Packing Co., 402 Mich. 321, 262 N.W.2d 820 (1978) (same).
The Guaranty Association argues Levi Strauss is a statutory insurer. I agree. To determine whether a contract of insurance exists, the court should:
[L]ook through the form of the transaction to determine whether the relationship of insurer and insured exists. Whether the contract is one of insurance must be determined from its purpose, effect, content, terminology and conduct of the parties, and not from its designation therein, since a contract which is fundamentally one of insurance cannot be altered by the use or absence of words in the contract itself. The Court must look also to the intention of the parties in making this determination.
12 J.A. Appleman, Insurance Law and Practice § 7001, at 2-3 (1981). Because Levi Strauss elected to become a self-insurer and thereby assumed direct and primary liability for its injured worker, see NMSA 1978, Section 52-1-4, its relationship to the employees is closer to that of an insurer than that of a workers’ compensation claimant. Moreover, like an insurance company, Levi Strauss uses an insurance adjuster to examine the claims. See Lob-law, Inc., 85 A.D.2d at 881, 446 N.Y.S.2d at 745 (where self-insured employer used a licensed insurance adjusting company, its status was more akin to an insurance company than to that of an individual). Within the statutory scheme of the Workers’ Compensation Act, Levi Strauss is a statutory insurer. Levi Strauss’s policies insured a portion of its direct and primary risk, thus the policies represent reinsurance.
Levi Strauss cites Zinke-Smith and Iowa Contractors Workers’ Compensation Group v. Iowa Insurance Guaranty, 437 N.W.2d 909 (Iowa 1989), as support for its argument that these policies are not reinsurance, but rather represent direct excess insurance policies with a large deductible of $2,500,000.00. However, I find the two cases are distinguishable on this point.
The relevant Iowa and Florida Guaranty Acts differ significantly from the New Mexico Guaranty Act. Compare NMSA 1978, §§ 59A-43-1 with Iowa Code Ann. § 515B.1 (West 1989) and Fla.Stat.Ann. § 631.50 (West 1974). In the instant case, Levi Strauss’s insurance contract represents an indemnity agreement. As the indemnitee, Levi Strauss is seeking reim1 bursement for claims that have already been paid. The New Mexico Guaranty Act specifically excludes indemnity agreements in Section 59A-43-4(C) as follows: “covered claims shall not include any amount of an unpaid claim paid to an insured or liability claimant of an insolvent insurer by any person, including but not limited to an agent or broker whether or not an assignment is taken by such person, agent or broker.” In contrast, neither the Florida Guaranty Act nor the Iowa Guaranty Act upon which the Zinke-Smith and Iowa Contractors cases are based include a similar provision.3
Furthermore, in characterizing the policy as direct excess insurance, the court in Iowa Contractors found it significant that the insurance company, Mission,4 paid premium taxes. As does our statute, the Iowa Code exempted insurance companies from paying such tax on reinsurance premiums, see Iowa Code Ann. Section 515.24 (West 1989); thus, the Iowa court concluded that Mission believed the policy to be direct excess insurance. 437 N.W.2d at 915. In the instant case, significantly, Mission paid no taxes or assessments on these particular Levi Strauss’s insurance policies.
Accordingly, I would reverse both the trial court’s summary judgment in favor of Levi Strauss and the second related order striking the affirmative defenses. I am persuaded that these policies are in the nature of reinsurance, and therefore, as a matter of law the Guaranty Association is not liable on these policies.
. Reinsurance is specifically excluded from a "covered claim" as defined in Section 59A-43-4(C): ‘“Covered claim' shall not include any amount due any reinsurer, insurer, insurance pool or underwriting association, as subrogation recoveries or otherwise."
. Although the Insurance Code contains a definition of "insurer,” see NMSA 1978, 59A-1-8, that definition is inapplicable for the purposes of defining reinsurance.
. Moreover, in Iowa Contractors the court found that, because the Iowa Guaranty Act made specific reference to a self-insured entity, by implication the Act applied to self-insured entities. That statutory language in the Iowa Guaranty Act does not appear in the New Mexico Guaranty Act.
The express language of at least one of the policies at issue here bolsters our conclusion. Unlike the policies at issue in the cited cases, one of the policies at issue here specifically refers to its reinsurance limit.
. The same California based Mission Insurance Company is the insolvent insurance company in the instant case and in Iowa Contractors.