dissenting.
I, too, would reverse the decision of the trial court in this case, and I agree with the dissenting opinion of Justice Urbigkit, in which I join. I am satisfied the case really is controlled by Wyo.Stat. § 26-31-lll(a) (1991), and the major fallacy in the majority opinion is the conclusion that there is no claim against Allstate Insurance Company because of the adoption of the Wyoming Insurance Guaranty Association Act (WIGA). Wyo.Stat. §§ 26-31-101 to -117 (1991). The effect of the majority decision is to inject the provisions of the Allstate policy as a gloss upon the statute, rather than reading the statute as controlling the provisions of the insurance policy.
This result is precisely the inverse of our usual rule.
The U.C.C. became a part of the contract as though written into its terms. Tri-County Electric Association v. City of Gillette, Wyo.1978, 584 P.2d 995; Application of Hagood, Wyo.1960, 356 P.2d 135.
Meuse-Rhine-Ijssel Cattle Breeders of Canada, Ltd. v. Y-Tex Corporation, 590 P.2d 1306, 1309 (Wyo.1979).
We have recognized that statutory provisions become a part of the bargain contemplated by the parties in Wyoming as though the statute actually were included in the terms. Meuse-Rhine-Ijssel Cattle Breeders of Canada Ltd. v. Y-Tex Corporation, 590 P.2d 1306 (Wyo.1979); Tri-County Electric Association, Inc. v. City of Gillette, 584 P.2d 995 (Wyo.1978).
Century Ready-Mix Company v. Lower & Company, 770 P.2d 692, 696 (Wyo.1989).
Contractual provisions cannot rise above constitutional and statutory law.
Tri-County Electric Association, Inc. v. City of Gillette, 584 P.2d 995, 1004 (Wyo.1978).
It is well settled that laws which subsist at the time and place of making of a contract, and where it is to be performed, enter into and become a part of it as though expressly referred to and incorporated in its terms. (Citations omitted.)
Application of Hagood, 356 P.2d 135, 138 (Wyo.1960).
For me, the correct analysis is to assume that the Wyoming Insurance Guaranty Association Act is not available when analyzing the rights of the claimants and the insureds under the insurance policies. It is clear that, in the absence of WIGA, there would be a claim under the Allstate policy because of the insolvency of Laramie Insurance Company. WIGA does not expunge the insolvency of Laramie Insurance Company, but it does provide for certain results after the rights of the parties have been determined without reference to WIGA. That is exactly what Wyo.Stat. § 26-31-lll(a) contemplates when it says:
(a) Any person having a claim against an insurer under an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall first exhaust his right under the policy. Any *479amount payable on a covered claim under this chapter shall be reduced by the amount of any recovery under the insurance policy.
The statutory provision makes sense only if it is read to provide for exhaustion of the Allstate policy rights prior to turning to WIGA. This interpretation is buttressed by referring to the definition of a “covered claim” found in Wyo.Stat. § 26-31-103(a)(ii):
(ii) “Covered claim” means an unpaid claim which arises out of and is within the coverage and does not exceed the applicable limits of an insurance policy to which this chapter applies issued by an insurer, if the insurer is an insolvent insurer and the claimant or insured is a resident of this state at the time of the insured event or the property from which the claim arises is permanently located in this state, but “covered claim” does not include:
(A) Any amount due any reinsurer, insurer, insurance pool or underwriting association as subrogation recoveries or otherwise; * * *.
If the appropriate language is paraphrased to apply to this case the proposition is:
Christine A. Eigenberber having a claim against Allstate Insurance Company under an insurance policy other than a policy of Laramie Insurance Company which is also a covered claim, shall first exhaust her right under the Allstate Insurance Company policy. Any amount payable on a covered claim under this chapter shall be reduced by the amount of any recovery under the Allstate Insurance Company policy.
I am satisfied that to permit the policy language to control the application of the statute is fallacious both as a matter of correct law and as a matter of policy. I would reverse the judgment of the trial court.