Property Insurance v. Yanni

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Property and Casualty Insurance Guaranty Corporation v. Yanni, No. 67, Sept. Term, 2006. WORKERS COMPENSATION - INSURER - COVERED CLAIM - IMMUNITY The Property and Casualty Insurance Guaranty Corporation ( PCIGC ) sought review of the Circuit Court for M ontgomery Coun ty s entry of summary judgment for Peter L. Yanni in which the Circuit Court upheld the Workers Compensation Commission s award of latepayment penalties and attorneys fees to Yann i for PCIGC s tardy payment of Yanni s workers comp ensatio n awa rd. The Court of Appeals reversed summary judgment for Yanni and held that the penalties should not have been assessed against the PCIGC because it was not an insurer for purposes of Section 9-728 of the Labor and Employment Article, and because the late-payme nt penalties w ere not part of Yanni s cov ered claims, as the term is defined in Section 9-301 (d) of the Insurance Article. The Court also concluded that, even if the PC IGC w ere an insurer, and the penalties were part of the covered claim, it was immune from the assessment of late-payment penalties under the provisions of Section 9-314 (a) of the Insurance Article and Section 5-412 of the Courts and Judicial Proceedings Article. IN THE COURT OF APPEALS OF MARYLAND No. 67 September Term, 2006 PROPERTY AND CASUALTY INSURANCE GUARANTY CORPORATION v. PETER L. YANNI Bell, C.J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Harrell, J., joins in the judgment as to the imm unity issue only. Bell, C.J. and Wilner, J., Dissent Filed: March 15, 2007 * Wilner, J., now retired, participated in the hearing and conf erence of this case w hile an active membe r of this Co urt; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. Section 9-727 of the Workers Compensation Act, codified in the Labor and Employment Article 1 requires that insurers or employers begin payment of workers compensation within fifteen days of their award by the Workers Compensation Commission. If payments are not timely made, Section 9-728 of the Act 2 provides for the assessment of penalties against a delinquent employer or insurer in progressive percentages of the original award , depending on the number of days the payment is late. Maryland Code (1999 ), Sectio n 9-72 8 of the Labo r and E mploym ent Art icle. In this workers compensation case, Appellant, the Property and Casualty Insurance 1 Section 9-727 of the Labor and Employment A rticle, Maryland Code (199 9), provides in pertinent pa rt: Payment of award. The employer or its insurer shall b egin paying c ompens ation to the covered employee within 15 days after the later of the date: (1) an award is made; or (2) payment of an award is due. 2 Section 9-728 of the Labor and Employment Article, Maryland Code (1999 ), provides in pertinent pa rt: Failure to pay awar d Penalties. (a) Within 15 days. If the Commission finds that an employer or its insurer has failed, w ithout good cause, to be gin paying an award within 15 days after the later o f the date tha t the award is issued or the date that payment of the award is due, the Commission shall assess against the employer or its insurer a fine not ex ceeding 2 0% of the amou nt of the pa yment. (b) Within 30 days. If the Commission finds that an employer or its insurer has failed, without good cause, to begin paying an award within 30 days after the later of the date that the a ward is issued or the date that payment of the award is due, the Commission shall assess against the employer or its insurer a fine not ex ceeding 4 0% of the amou nt of payme nt. Guaranty Corporation ( PCIGC ), was assessed penalties and attorneys fees by the Workers Compensation Commission for the late payment of a workers com pensation award to Appellee, Peter L. Yann i, after the workers com pensation insurer to Ya nni s employer, Legion Insurance Company, was declared insolve nt. We are c alled upon in this case to determine whether the PCIGC is an insurer and subject to the assessment of penalties under Section 9-7 28 of the L abor and Employm ent Article; w hether the p enalties fall w ithin Section 9-301 (d) of the Insurance Article s definition of a covered claim which the PCIGC is required to c onsider; an d wheth er the PCI GC is immune from the assessment of penalties under Section 9-314 of the Insurance Article, Maryland Code (1995, 1997 Repl. Vol.), and Section 5-412 of the Courts and Jud icial Proceedings Article (197 4, 2002 Repl. V ol.). We shall hold tha t the PCIG C is not ob ligated to pay the late-payment penalties assessed against it by the W orkers Co mpensa tion Com mission be cause it is not an ins urer, the penalties do not con stitute part of Y anni s cov ered claim, and beca use the PC IGC is immune from the imposition of penalties. I. Background On October 19, 2000, Peter L. Yanni, employed with MTI Technology Corporation ( MTI ) as a Customer Service Engineer, sustained an injury when a piece of equipment on which he was w orking be gan to fall, causing h im to twist and wrench his back, for which he subseque ntly filed a claim for workers compensation. MTI was insured for such claims by Legion Insurance Company ( Legion ), which was declared insolvent in July of 2003. 2 PCIGC subsequently assumed responsibility for Yanni s claim. On September 29, 2004, the Workers Compensation Commission, after conducting a hearing on Yanni s claim, determined that Yanni had sustained an accidental injury arising out of and in the course of his employment. The Commission award ed Yan ni $211.00 in weekly wages, to be paid for 75 weeks, for permanent partial disability, commencing when his temporary total disability terminated.3 Yanni also was awarded $3,165.00 in attorneys fees an d $528 .00 for medic al bills. When the PCIGC failed to timely pay the award, Yanni filed issues4 with the Workers Compensation Commission, requesting that penalties be assessed against the PCIGC pursuant to Section 9-728 of the Labor and Employment Article, Maryland Code (1991). At the hearing on Yanni s request for penalties, both parties stipulated to the fact that Yanni s workers compen sation aw ard was n ot paid until November 23, 2004, and the attorneys fees until November 29, almost sixty days after the issuance of the award. The Commission ordered PCIGC to pay Yanni penalties in the amount of 35% of his workers compensation award, but did not award additional penalties for the delayed payment of attorneys fees. 3 In terms of temporary total disability, the Commission stated: All lost time wa s paid at the tempo rary total disability rate of all lost time; based on an average weekly wage of $1,200.00. 4 Under the Work ers Com pensation A ct, employers d isputing a cla im filed with the Workers Compensation Commission, or claimants seeking to enforc e or m odif y a workers compensa tion award , must file issu es with the Comm ission setting f orth their demand. See Maryland Code (1999), Section 9-713 (a)(2) of the Labor and Employment Article. See also Jung v. Southland Corp., 351 Md. 166 , 717 A.2d 387 (1997). 3 Yanni s counsel subsequently wrote the Commission inquiring into whether they had inadverten tly neglected to assess that pe nalty in its Order; the Commission responded by issuing a new O rder, rescind ing and an nulling its earlier order and denying Y anni s request for any penalties. Yanni filed a second set of issues with the Commission, again requesting penalties against the P CIGC for the late payment of his award and attorney s fees. A second hearing w as held before the Commission, after which the Commission ordered the PCIGC to pay Yann i penalties in the amount of 35% of the original award, plus $500.00 in additional attorneys fees. The PCIGC petitioned the Circuit Court for Montgomery County for judicial review of the penalties and subsequently filed a motion for summary judgment, to which Yanni responded by filing a cross-motion for summary judgment. The Circuit Court granted summary judgment to Yanni. The PCIGC noted a timely appeal to the Court of Special Appeals presenting one question for review: Is the property an d casualty insurance guaranty corporation subject to the assessment of a fine for late payment of benefits under § 9-728 of the Labor and Employment Article? Prior to any proceedings in the intermediate appellate court, we issued a w rit of certiorari on our own in itiative. Prop. & Cas. Ins. Guar. Corp. v. Yanni, 394 Md. 479, 906 A.2d 942 (2006). II. Analy sis In this case we are called upon to determine whether the trial judge properly granted 4 summary judgment to Yanni. The entry of summary judgment is governed by Maryland Rule 2-501, w hich prov ides in pertine nt part that: (f) Entry of judgment. The court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in who se favor ju dgment is entered is entitled to judgment as a matter of law. Maryland Rule 2-501 (f). We recently explicated the standard of review for the entry of summary judgment in River Walk Apartments, LLC v. Roger Twigg, __ Md. __, __ A.2d __ (2006): The question of whether the trial court properly granted summary judgment is a question of law and is subject to de novo review on app eal. Standard Fire Ins. C o. v. Berrett, 395 Md. 439, __, 910 A .2d 1072 , __ (2006 ); Miller v. Bay City Prop. Owners Ass n, Inc., 393 Md. 620, 632, 903 A.2d 938, 945 (2006), quoting Myers v. Kayhoe; 391 Md. 188, 203, 892 A.2d 520, 529 (200 6); Ross v. State Bd. of Elections, 387 Md. 649, 658, 876 A.2 d 692, 69 7 (2005); Todd v. MTA, 373 Md. 149, 154, 816 A .2d 930 , 933 (2003); Beyer v. Morgan State Univ., 369 Md. 335, 359, 800 A.2d 707, 721 (2002). If no material facts are in dispute, we must de termine whether su mmary judgment was correctly entered as a ma tter of law . Standard Fire Ins. Co., 395 Md. at __, 910 A.2 d at __; Ross, 387 Md. at 659, 876 A.2 d at 698; Todd, 373 M d. at 155, 816 A.2d at 933; Beyer, 369 Md. at 360, 800 A.2d at 721. On appeal from an order entering summa ry judgment, we review only the grounds upon which the trial court relied in granting summ ary judgm ent. Standard Fire, 395 Md. at __, 910 A.2d at __ ; Ross, 387 Md. at 659, 876 A.2d at 698, quoting Eid v. Duke, 373 Md. 2, 10, 816 A.2d 844, 849 (2003), quoting in turn Lovelace v. Anderson, 366 Md. 690 , 695, 785 A.2d 7 26, 729 (2001). Id. at __, __ A.2d a t __. 5 The issues before us require us to construe various provisions of the Insurance and the Labor and E mploym ent Art icles. In conducting statutory interpretation, our prima ry goal is always to to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision, be it statutory, constitutional or part of the Rules. In re Kaela C., 394 Md. 432, 468, 906 A.2d 915, 936 (2006); quoting General Motors Corp. v. Seay, 388 Md. 341, 352, 879 A.2d 1049, 1055 (2005) quoting in turn Davis, 383 Md. at 605, 861 A.2d at 81; City of Fre derick v. Pic kett, 392 Md. 411, 427, 897 A.2d 228, 237 (2006). We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure th at no w ord, clause, se ntence or p hrase is rendered surplusage, superfluous, meaningless or nugatory . In re Kaela C., 394 M d. at 468, 906 A.2 d at 936; Mayor of Oakland v. Ma yor of Mountain Lake Park, 392 Md. 301, 316, 896 A.2d 1036, 1045 (20 06); Kane v. Bd. of Appeals of Prince George's County, 390 Md. 145, 162, 887 A.2d 1060, 1070 (2005); 468 Giant Food, Inc. v. Dep't of Labor, 356 Md. 180, 194, 738 A.2d 856, 860-61, 863 (1999). If that language is clear and unambiguous, we need not loo k beyon d the sta tute s pr ovision s and o ur analysi s ends. City of Frederick, 392 Md. at 427, 897 A.2d at 237; Davis, 383 Md. at 605, 861 A.2d at 81. If however, the language is subject to m ore than on e interpretation , it is ambig uous, and we resolve that ambiguity by looking to the statute s legislative history, case law, and statutory purpose. In re Kaela C., 394 M d. at 468, 90 6 A.2d a t 936; Mayor of Oakland, 392 Md. at 316, 896 A.2d at 1045; Canaj, Inc. v. Baker a nd Div. Phase III, 391 Md. 374, 403, 893 A.2d 1067, 1084 6 (2006); Comptroller v. Phillips, 384 Md. 58 3, 591, 865 A.2d 590, 594 (2005 ). The PCIGC s statutory purpose is to provide a mechanism for the prompt payment of covered c laims unde r certain [insurance] policies and to avoid fin ancial loss to re sidents of the State who are claimants or policyholders of an insolvent insurer. Maryland Code (1995, 2003 Repl. V ol.), Sec tion 9-3 02 (1) o f the Ins urance Article. Created by the General Assemb ly in 1971 as the Maryland Insurance Guaranty Association, the PCIGC was originally structured as a nonprofit, unincorporated legal entity, emulating a model act proposed in 1969 by the National Association of Insurance Commissioners which was adopted by over forty states . Ins. Comm r of State v. Prop. & Cas. Ins. Guar. Corp., 313 Md. 518, 522 n.2, 546 A.2 d 458, 46 0 n.2 (198 8); Abell Pub l g Co. v. M ezzanote , 297 Md. 26, 32, 464 A.2d 1068, 1071 (1983). In 1986, the General Assembly made substantial changes to the Maryland I nsurance Guaran ty Association by renaming it the Property an d Casua lty Insurance Guaranty Corporation, designating it as a nonprofit, nonstock corporation, declaring that it was not an agency or instrumentality of the State, and changing the process for the selection of its Board of Directors. 1986 Md. Laws, Chaps. 161 and 440; See also Insurance Comm r of State, 313 Md. at 522 n.2, 546 A.2 d at 460 n.2 ; Abell Pub g Co., 297 Md. at 32, 464 A.2d at 1071. All companies providing direct property and casualty insurance in the State of Maryland, with the exception of companies offering health, mortgage guaranty, and annuities 7 insurance, companies offering insurance written on a surplus lines basis,5 companies transacting insu ranc e wr itten by a risk retention group,6 or companies transacting insurance written by an unauthorized insurer, 7 must be a member of the PCIGC in order to transact insurance business in the State. Maryland Code (1995, 2003 Repl. Vol.), Sections 9-303, 9304 (b) and 9-306 (d) of the Insurance Article. Each member insurer is assessed an annual fee by the PCIGC to cover its expenses in paying covered claims of insolvent insurance companies. Maryland Code (1995, 2003 Repl. Vol.), Sections 9-304 (b) and 9-306 (d) of the Insurance Article. 5 Surplus lin es insuran ce refers to the full amount or kind of insurance needed to protect the interest of the insured tha t: (1) cannot be obtained from an authorized insurer; or (2) for the particular kind and class of insurance to provide coverage against liability of persons described in § 24-206 (1) of this article, cannot be obtained from three or more authorized insurers that write that kind and class of insurance on a broad basis. Marylan d Cod e (1995 , 2003 R epl. Vo l.), Sectio n 1-10 1 (pp) o f the Ins urance Article. 6 A risk retention group is defined as a corporation or o ther limited liability association that is formed under the laws of a state, Bermuda, or the Cayman Islands, and the primary activity of which consists of assuming and spreading all or part of the liability exposure of its group members. Maryland Code (1997 , 2003 Repl. Vo l.), Section 25-101 (j) of the Insurance Article. 7 Unauthorized insurer means an insurer that does not hold a certificate of auth ority. Maryland Code (1995, 2003 Repl. Vol.), Section 1-101 (rr) of the Insurance Article. 8 In this case, Yanni contends that the W orkers Co mpensa tion Com mission righ tfully assessed late-payment fees against the PCIGC because it is an insurer, as the term is used in Section 9-728 of the Labor and Employment Article, as evidenced by Section 9-306 (c) of the Insuran ce Article, w hich states tha t it shall be de emed the insurer to the extent of the Corporation s obligations on the covered claim s and, to that extent, shall have the same rights, duties, and o bligations tha t the insolven t insurer wo uld have. Maryland Code (1995, 2003 Repl. Vol.), Section 9-306 (c) of the Insurance Article. Yanni further argues our decision in Uninsured Employers Fund v. Danner, 388 Md. 649, 882 A.2d 271 (2005), that the Uninsured Employers Fund ( UEF ) 8 was not a n insurer is not persuasive because the PCIGC is a completely different creature from the U EF the U EF is a state a gency, and its funds are maintained by the State. Yanni also alleges that the PCIGC is an insurer because it is statutorily required to provide workers compensation insurance. Yanni argues that the PCIGC is obligated to pay the late-payment penalties because they represent a portion of the unpaid obligation for compensation owed by the insolvent insurer. Yanni further maintains that to grant the PCIGC immunity from late-payment penalties is inconsistent with the PCIGC s statutory purpose, citing Callaghan v. Rhode Island Occupational Info. Coordinating Comm./Indus. Educ. Council of Labor, 704 A.2d 7 40 (R.I. 199 7), which u pheld a late-payment p enalty against the state s insurers insolvency fund, despite the fu nd s 8 The [Uninsured Employers Fund] was created in 1967 to provide for the payment of workers compensation awards against uninsured employers. Workmen s Comp. Comm n v. Prop. & Cas. Ins. Guar. Corp., 319 M d. 1, 3, 57 0 A.2d 323, 32 4 (199 0). 9 immunity agains t liability, on the ground that the penalty ensured that the fund discharged its obligations in a timely manner. Y anni conte nds that, such broad imm unity would abrogate claim ants righ t to tim ely pa ymen t and leav e the m without an y alter nativ e rem edy. Con vers ely, the PCIGC argues that, under our holding in Danner, 388 Md. at 649, 882 A.2d at 271, it does not constitute an insurer for purposes of Section 9-728 of the Labor and Employment Article. The PCIGC also maintains that, under Section 9-302 of the Insurance Article,9 it is only permitted to pay covered claims, which does not include the penalties explicated in Section 9-728 of the Labor and Employment Article. The PCIGC also alleges that it is immune from the assessme nt of penalties under Section 9-314 of the Insurance Article and 5-412 of the Courts and Judic ial Proceed ings Article, w hich grant it immunity from liability, and under Section 9-312 of the Insurance Article, which grants it immunity from taxes.10 9 Maryland Code (1995, 2003 Re pl. Vol.), Sec tion 9-302 of the Insu rance Ar ticle provides: The purposes of this subtitle are: (1) to provide a mechanism for the prompt payment of covered claims under certa in policies an d to avoid f inancial loss to residents of the State who are claimants or policyholders of an insolvent insurer; and (2) to provide for the assessment of the cost of payments of covered claims and protection among insurers. 10 Because we shall hold that the PCIGC is immune from the assessment of latepayment penalties under Section 9-314 of the Insurance Article and 5-412 of the Courts and Judicial Proceed ings Article, w e do not rea ch the issue of whe ther the pen alties constitute taxes and, if so, whether the P CIGC also m ay be immune un der Section 9-312 of the (contin ued...) 10 The PCIGC is statutorily obligated to pay the covered claims of insolvent member insuran ce com panies that am ount to more th an $10 0 and le ss than $ 300,00 0, to the extent of the covered claims existing on or before the determination of insolvency or arising: (i) 30 days a fter t he determ inati on of insolve ncy; (ii) before the policy expiration date, if that date is less than 30 days after the determination of insolvency; or (iii) before the insured replaces the policy or cause s its cancellation, if the insured does so within 30 days after the dete rmin ation of in solv ency. Maryland Code (1995, 2003 Repl. Vol.), Sections 9-306 (a)(1) & (2) of the Insurance Article. With regards to workers compensation claims, however, the PCIGC shall pay the full amount of any covered claim arising out of a workers compensation policy. Maryland Code (1995 , 2003 R epl. Vo l.), Sectio n 9-30 6 (a)(2) of the In suranc e Article . In order to execute its statutory duty to assume the covered claims of insolvent insurers, the P CIGC is deemed the insurer to the extent of the Co rporation s obligation on the covered c laims and, to that extent, shall have the rights, duties, and obligations that the insolvent insurer would have had if the insurer h ad not bec ome inso lvent. Maryland Code (1 995, 200 3 Repl. V ol.), Section 9 -306 (c). O ne of the obligations of a workers compensation insu rer, such as Legion in the present case, is the prompt payment of an award, as required by Section 9-727 of the Labor and Employment Article, which 10 (...continued) Insurance Article. 11 states: The employer or its insurer shall begin p aying comp ensation to the covered employee within 15 days after the later of the date: (1) an award is made; or (2) payment of an award is due. Maryland Code (1 999), Sectio n 9-727 o f the Lab or and Em ployment A rticle. If paymen ts are not timely made, Section 9-728 provides for the assessment of fines: (a) Within 15 days. If the Commission finds that an employer or its insurer has failed, without good cause, to begin paying an award within 15 days after the later of the date that the a ward is issued or the d ate that p ayment o f the aw ard is du e, the Commission shall assess against the employer or its insurer a fine not ex ceeding 2 0% of the amou nt of the pa yment. (b) Within 30 days. If the Commission finds that an employer or its insurer has failed, without g ood caus e, to begin paying an award with in 30 days after the later of the da te that the aw ard is issued or the date that payment of the award is due, the Commission shall assess against the employer or its insurer a fine not ex ceeding 4 0% of the amou nt of payme nt. Maryland Code (1 999), Secti on 9-728 of th e Labor a nd Emp loyment Artic le (empha sis added ). This Court has had occasion to examine what constitutes an insurer for purposes of Section 9-728 of the Labor and Em ployment A rticle in Danner, 388 Md. at 649, 882 A.2d at 271. We began ou r analysis by noting that, although not defined in Subtitle Seven of the Workers Com pensation Ac t, insure r is def ined in o ther sub titles. Id. at 669, 882 A.2d at 283. We looked to the Act s definition of an authorized insurer in Subtitle Four as a stock corporation or mutual a ssociation tha t is authorized under the In surance A rticle to provide 12 workers compensation insurance in the State, quoting Section 9-401 (b) of the Labor and Employment Article, and also to the definition of insurer in Subtitle Three as: (i) a stock corporation or mutual association [11] that is authorized under the Insurance Article to provide workers compensation insurance in the State; (ii) the Injured Workers Insurance Fund; (iv) a governmental self-insurance group[12] that meets the requireme nts of Title 25, S ubtitle 3 of the Insurance Article; or (v) an individual employer that self-insure rs in accordan ce with § 9-405 of this title. Id., quoting Section 9-316 (a) of the Labor and Employment Article. We held that the Uninsured Employers Fund was not an insurer because it did not fall within any of the enumerated definitions but, was, rather, a state en tity that did not ope rate for prof it, as would a mutua l associa tion or c orpora tion. Id. at 669, 882 A.2d at 283. Thus, it could not be assesse d late fe es und er Sectio n 9-72 8 of the Insuran ce Artic le. Although Yanni is correct in pointing out that the PCIGC is structurally different from the UEF, it still does not meet the definition of insurer provided in the Workers Compensation Act. The PCIGC is a nonstock, nonprof it corporation , rather than a f or-profit stock corporation, mutual association, governmental self-insurance group, or an individual 11 A mutual association is defined as a nonstock, unincorporated organization made up of diff erent mem ber organ izations that share profits, benefits, expenses and liabilities. Webster s Third New International Dictionary 1493 (19 93). 12 A governmental self-insurance group is a group of two or more government employers, consisting of counties, municipal corporations, boards of education, and/or commu nity colleges, organized under the provisions of Section 9-404 of the Labor and Employment Article, Maryland Code (1999), that self-insure. Maryland Code (1999), Sections 9-401 (c) and 9-404 of the Labor and Employment Article. 13 employer that self -insures . Nor is th e PCIG C the In jured W orkers Insuran ce Fun d. Further, the PCIGC does not issue workers compensation insurance policies to employers. Instead, the PCIGC is limited in its functions to paying covered claims of insolvent insurers and assessin g mem ber insu rers ann ual fee s to cov er the co st of its sta tutory duti es. Yanni, nonetheless, asserts that the late-payment penalties assessed against the PCIGC represent a portion of his covered claim to render it liable for those penalties. The PCIGC is only deemed the insurer to th e extent of the Corporation s obligation on the covered claims, and is not obligated to a policyholder or claimant in an amount in excess of the obligation of the insolvent insurer under the policy out of which the claim arises. Maryland Code (1995, 2003 Repl. Vol.), Section 9-306 (c) of the Insurance A rticle (emphasis added). It is statutorily required to investigate all claims brought against the Corporation, settle and pay all covered claims, and deny all other claims not qualifying as covered. Maryland Code (1995, 20 03 Rep l. Vol.), Section s 9-306 (e)( 1)(i) of the In surance A rticle (emph asis added ). Covered claims are defined in Section 9-301 (d) of the Insurance Article as: [A]n insolvent ins urer s unpa id obligation , including an unearned premium: (i) that: 1. A. for insurance other than insu rance that covers mem bers of a purch asing g roup, arises out of a policy of the insolvent insurer issued to a resident or payable to a resident on behalf of an insured of the insolvent insurer; or B. for insurance that covers members of a purchasing group, arises out of insurance that covers the members of the purchasing group to the extent that the insurance is obtained by 14 the purchasing group, the insurance is written by an authorized insurer, and the claim is ma de by a perso n residing o r located in the State; or 2. arises out of a surety bond issued by the insolvent insurer for the protection of a third pa rty that is a resident. Maryland Code (1 995, 200 3 Repl. V ol.), Section 9-301 (d) of the In surance A rticle (emphasis added). Covered claims do not include: (i) an amount du e a reinsurer, insurer, insurance pool, or underwriting association, as a subrogation recovery or otherwise; or (ii) an amount due that arises out of insurance covering the members of a purchasing group if the insurance obtained by the purchasing group is written by an unauthorized insu rer. Id. Covered claims also do not include a first party claim b y an insured w hose net w orth exceeds $50,000,000 on December 31 of the year before the year in which the insurer becomes an insolvent insurer. Id. This Court has repeatedly den ied recove ry against the PC IGC w hen a claim did not fall within the statutory definition of a covered claim. In Workmen s Compensation Commission v. Property and Ca sualty Insur ance G uaranty Corporation, supra, we held that assessme nts levied against insurers for the purpose of funding the Subsequent Injury Fund13 ( SIF ) and the UEF did not fall within the definition of covered claims that the PCIGC 13 The Subsequent Injury Fund is a statutorily created fund that insures that an employer who has hired a handicapped worker, will be subject to workers compensation liability only for the effects of an injury wh ich the worker suff ers while in the employer service, and not for the combined effects of the previous handicap and the subsequent injury. Ins. Comm r, 319 M d. at 2, 57 0 A.2d at 323. 15 was statutorily obligated to pay after having emphasized that covered claims are defined as those which arise out of insurance policies of the insolvent insurer, we explicated that the SIF and UEF assessments do not arise out of the insurance policy contracts of the insolvent insurer, bu t instead are obligations arising wholly from statutes. Id. at 10-11, 570 A.2d at 327. See also Md. Motor Truck Assoc. Workers Comp. Self-Ins. Group v. Prop. & Cas. Ins. Guar. Corp., 386 Md. 88, 103, 871 A.2d 590, 598 (2005) (holding that the Maryland Motor Truck Association W orkers Compensation Self-Insurance Group could not recover from the PCIG C because the g roup constituted an insure r, and Section 9-301 (d)(2)(i) provides that covered claim does not include an amount due to a reinsurer, insurer, insurance pool, or underwriting association, as a subrogation recovery or otherwise ); Med. Mut. Liab. Ins. So c y of Md . v. Goldstein , 388 Md. 299, 879 A.2d 1025 (2005) (holding that the PCIGC was not required to indemnify or defend a doctor in a contribution action because the doctor s claim was not p resented to th e PCIG C prior to the absolute and final b ar date required by Section 9-301 (d)(1)(ii), and therefo re did not constitu te a co vered c laim ). Cf. Ward Elec. Serv., Inc. v. Prop. & Cas. Ins. Guar. Corp., 325 Md. 1, 599 A.2d 81 (1991) (holding that the PC IGC co uld not pu rsue a claim for indemnity against insolvent insurer s insurer because the claimant the PCIGC had paid was not a resident of Maryland, and therefore the claim was not a covered claim and the PCIGC could not step into the insolvent insurer s shoes). In the case before us, the penalties assessed against the PCIGC did not arise out of 16 Legion s original workers compensation insurance policy, but rather arose out of statutory obligations. Althoug h the pena lties were to b e paid direc tly to Yanni, they are not part of the original claim amount, but, rather, con stitute an additional payment, above and beyond the original claim award. Thus, based on the plain language of Section 9-301 (d) of the Insurance Article, late fees assessed under Section 9-728 of the Labor and Employment Article do not constitute part of the covered claim, and the PCIGC is not obligated to pay them. See Maryland Code (1995, 2003 Repl. Vol.), Section 9-306 (a)(2) of the Insurance Article. Although it is unnecessary for us to decide the other preserved issue of whether the PCIGC is immune from the assessment of fees in light of our determination that the PCIGC is not an insurer and that the penalties are not part of Yanni s covered claim, we nonetheless shall reach the immunity issue because it raises an important issue; an issue which may continue to arise in the PCIGC s performance of its statutory duty to pay covered claims. This Court has discretion to reach collateral, non-determinativ e, and even unpreserv ed issues if th ey are deem ed to be important issues of law that are integral to our holding. See Canaj, Inc. v. Baker & Div. Phase III, LLC, 391 Md. 374, 382, 893 A.2d 1067, 1072 (2006); Messing v. Bank of Am., N.A., 373 Md. 672, 688, 821 A .2d 22, 31 (2003); Md. Com r of Labor & Indus. v. Cole Roofing Co., Inc., 368 Md. 459, 479, 796 A.2d 63, 75 (2002); Richard Roeser Prof l Build er, Inc. v. Ann e Arund el County , 368 Md. 294, 296, 793 A.2d 545, 54 7 (200 2). See also Anne Arundel County Bd. of Educ. v. Norville, 390 Md. 93, 17 104-05, 887 A.2d 10 29, 1035-36 (20 05); Oak Crest Vill., Inc. v. Murphy, 379 Md. 229, 242, 841 A.2d 81 6, 824 (20 04; Eng g Mgmt Serv., Inc. v. Md. State Highway Admin., 375 Md. 211, 235, 825 A.2d 966, 980 (2003); Shurupo ff v. Vokroth , 372 Md. 639, 649, 814 A.2d 543, 549 (2003). Yanni urges us to hold that the PCIGC is not immune from the assessment of latepayment penalties because such immunity is inconsistent with the PC IGC s statutory purpose, to ensure the p rompt paym ent of cov ered claims and to avo id financial lo ss to residents of the State wh o are claimants of an inso lvent insurer. Section 9-314 of Insurance Article provides: A mem ber insurer, the Corpora tion or its agents or employees, the Board of Directors, and the Commissioners or the Commissione r s representativ es shall have the immunity from liability described in § 5-412 of the Courts Article. Maryland Code (1995 , 2003 Repl. Vol.), Sections 9-314 of the Insurance Article. Section 5-412 of the Courts and Judicial Proceedings Article states: There shall be no liability on the part of and no cause of action of any nature shall arise aga inst a membe r insurer, the P roperty and Casualty Insurance Guaranty Corporation or its agents or employees, the Board of Directors, or the Insurance Commissioner or the Commissioner s representatives for any action taken by them in the performance of their powers and duties under Title 9, Subtitle 3 of the Insurance Article. Maryland Code (1974, 2002 Repl. Vol.), Section 5-412 of the Courts and Judicial Proceedings Article (emphasis added). Both Sections 9-314 of the Insurance Article and Section 5-412 of the Courts and Judicial Proceeding Article grant the PCIGC immunity from 18 liability arising o ut of its p erform ance o f its statut ory duties . Liability is not defined in either the Insurance Article or Courts and Judicial Proceedings Article; nor is there any legislative history to shed light on the te rm. It is, however, defined in Black s L aw Dic tionary as a leg al responsib ility to another or to society, enforcea ble by civil remedy or criminal punishment, and as the opposite of immun ity. Id., Black s Law Dictionary 932 (8th ed. 2004), quoting William R. Anson, Principles of the Law of Contract 9 (Arthur L. Co rbin ed., 3d A m. ed. 191 9) (emph asis added). We explored the PCIGC s immunity from liability in Abell Publishing Co., 297 Md. at 26, 464 A.2d at 1068, and determined that the Maryland Insurance Guaranty Association, the PCIGC s predecessor, was an agency or instrumentality of the State, such that it was required to disclose ce rtain requeste d docum ents unde r the Public In formatio n Act, and remanded the case for fur ther pro ceedin gs. We held, ho weve r, that on remand, attorneys fees and costs could not be awarded against MIGA under Section 5 (b)(6) of Article 76A, the Public Information A ct, Maryland Code (1 957, 1980 Re pl. Vol.).14 We ex plained that, 14 Section 5 (b )(6) of Artic le 76A p rovides tha t: The court may assess against any defend ant govern mental en tity or entities reasonable attorney fees a nd other litiga tion costs reasonab ly incurred in a ny case und er this section in which the court determines that the applicant has substantially prevailed. Marylan d Cod e (1957 , 1980 R epl. Vo l.), Article 76A, Section 5 (b)(6). 19 Ordinarily, a specific en actment p revails over a n incomp atible general enactment in the same or another statute.[15] Add ition ally, Art. 48A, § 11 16 specifically provides that the provisions of Article 48A sh all prevail over other statutory provisions relating to insurance matters. Ac cordingly, Artic le 48A, § 517,17 granting im munity from liability to MIG A and its 15 See Md.-Nat l Capital Park and Planning Comm n v. Anderson, 395 Md. 172, __, 909 A.2d 69 4, 707 (2006) (stating that [i]t is a w ell-settled rule of statutory interpretation that when two statutes, on e general and one specific, are found to conflict, the specific statute w ill be reg arded a s an exc eption to the gen eral statu te . ). See also Massey v. Sec y, Dep t of Pub. Safety and Corr. Servs., 389 Md. 496, 512 n.4 , 886 A .2d 585 , 594 n.4 (2005), citing Smack v. Dep t of Health and Mental Hygiene, 378 Md. 298, 306, 835 A.2d 1175, 1179 (20 03); Harvey v. Marsh all, 389 Md. 243, 270, 884 A.2d 1171, 1187 (2 005); Farmers & Mer. Nat l Bank of Hagerstown v. Schlossberg, 306 Md. 48, 63, 507 A.2d 172, 180 (1986); Lumberm en s Mut. Cas. C o. v. Ins. Comm r , 302 Md. 248, 268-69, 487 A.2d 271, 28 1 (198 5). 16 Section 11 of Article 48A provided: Provisions of this article relative to a particular kind of insurance or a particular type of insurer or to a particular matter shall prevail over provisions relating to insurance in general or insurers in ge neral or to su ch matter in g eneral. Maryland Code (1957, 1980 R epl. Vol.), A rticle 48A, Section 11. Section 11 of Article 48A was recodified in 1995 without substantive changes as Section 1-207 of the Insurance Article. 1995 Md. Laws, Chap. 36. 17 Section 517 of Article 48A provided: There shall be no liability on the part of and no cause of action of any nature shall arise against any member insurer, the Association or its agents or employees, the board of directors, or the Commissioner of his representatives for any action taken by them in the performance of their powers and duties under this subtitle. Maryland Code (1 957, 197 9 Repl. V ol.), Section 517 of the Article 48A. Section 517 of (contin ued...) 20 agents, prevails over A rticle 76 A, § 5 (b)(6), permitting the assessment of attorney fees and c osts in cases und er the Pub lic Information Act. Simila rly, Article 48A, § 517 prevails over Md. Code (1974, 1980 Rep. Vol.), § 7-104 (a)(1) and (2) of the Courts and Judicial Proceedings Article,18 permitting the assessment of appellate costs against a State agency. Under these circumsta nces, there sh all be no alloc ation of ap pellate costs. Id. at 40-4 1, 464 A .2d 106 8 (citatio ns omi tted). Thus, w e interpreted MIGA s immun ity from liability to include immunity from costs, and conclude d that the spe cific provisions of Section 517 of Article 48A, the predecessor to Section 5-412 of the Courts and Judicial Proceedings Article, prevailed over the provisions for the assessment of attorneys fees and costs of the Public Info rmation A ct. Although the PCIGC has been restructured so that it may no longer be considered an 17 (...continued) Article 48A was recodified in 1990 without substantive changes as Section 5-336 of the Courts and Judicial Proceedings Article, 1990 Md. Laws, Chap. 546, and then renumbered to Section 5-412 in 1997. 1997 Md. Laws, Chap. 14. 18 Maryland Code (1974, 1980 Rep. Vol.), § 7-104 (a)(1 ) and (2) of the Courts and Judicial Proceedings provided: (a) In gene ral. - (1) Costs shall be allowed to or awarded against the State or one of its agencies or political subdivisions which is party to an appeal from an executive, administrative, or judicial decision, in the same manner as costs are allowed to or awarded against a priv ate litigant. (2) The State, its agency, or the political subdivision shall pay the costs aw arded aga inst it. 21 agency or instrumentality of the State,19 the Abell Publishing rationale remains applicable. Thus, applying our ju risprudenc e in Abell Publishing to the case sub judice, the Property and Casualty Insurance Guaranty Corporation is immune under the specific provisions of Section 9-314 of the Insurance Article and Section 5-412 of the Courts and Judicial Proceedings Article, which p revail over the general penalty provisions of Section 9-728 of the Labor and Employment Article. When faced with a similar issue, the C olorado Court of App eals has reached the same conclusion. In Mosley v. Industrial Claim Appeals Office, 119 P.3d 576 (Colo. Ct. App. 2005), cert. denied, 2005 W L 2064 906 (Co lo. 2005), the Colorado Court of Appeals explored whether the State s Insura nce Guaranty Asso ciation s ( CIGA ) immunity clause shielded it from paying late-payment penalties assessed under Section 8-43-304(1) of the Colorado Workers Compensation A ct. CIGA s immunity statute provides: There shall be no liability on the part of, and no cause of action of any natu re shall a rise aga inst, any m embe r insurer , the association or its agents or employees, the board of directors, or the commissioner or his representatives for any action taken by them in the performance of their powers and duties under this part 5. In 1986, the General Assembly added subsection (b) to Section 9-314 of the Insurance Article, 1986 Md. Laws, Chap. 116, which provides: Notwithstanding subsection (a) of this section, the Corpora tion is not any m ay not be dee med a de partment, u nit, agenc y, or instrum entality of the State . Marylan d Cod e (1995 , 2003 R epl. Vo l.), Sectio n 9-31 4 of the Insuran ce Artic le. 22 Colorado Revised Statues (1971), Section 10-4-517. The court concluded that CIGA s immunity provision prevailed over the penalty provision of the Colorado Workers Compensation Act because, following well-established rules of statutory interp retation, to the extent there is any conflict between the two statutory provisions, § 10-4-517 , as the more specific and later-enacted statute, controls. Id. at 579. T he cou rt furthe r explain ed that, This interpretation of the statute furthers, rather than hampers, the legislative purpos e of § 10- 4-502, w hich is to avo id excessive delay in paymen t and financial loss to claimants or policyholders because of the insolvency of an insurer. Indeed, the c onse quences of ad opting claim ant's statutory construction would be directly contrary to the purposes of the CIGA Act because requiring CIGA to pay penalties for postinsolve ncy acts would result in increased premium s for individual policyholders and depletion of CIGA funds to pay for covered claims of all claimants w hose insure rs had bec ome inso lvent. Id. at 580 (emphasis ad ded). In Caulfield v. Leonard, 676 So.2d 1117 (La. Ct. App. 1996), the Louisiana Court of Appea ls reached a similar conc lusion wh en it was called upon to also address the issue of whether the Louisiana Insurance Guaranty Association s ( LIGA ) was immune from latepayment penalties under Section 12:1220 (B)(2) of the Louisiana Revised Statutes Annotated. Section 12:1220 provides: A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly. . . . Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach. B. Any of the following acts, if knowingly committed or 23 performed by an insurer, constitutes a breach of the insurer s duties imposed by Subsection a: *** (2) Failing to pay a settlement within thirty days after an agreement is reduced to writing. *** C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousa nd doll ars, wh icheve r is greate r. . . . *** F. The Insurance Guaranty Association Fund . . . shall not be liable for a ny special damages awarded under the provisions of this Section. Id. at 1119, quoting Lo uisiana Revised Statutes A nnotated 22:1120 (1990) (emphasis added). Section 12:1391 of the Louisiana Insurance Code, LIGA s imm unity provision, states: There shall be no liability on the part of and no cause of action of any nature shall arise against any member insurer, the association or its agents or employees, the board of directors, or the commissioner or his representatives for any action taken by them in the performan ce of their p owers an d duties un der this Part. Louisiana Revised Statutes Annotated 12:1391 (1970, 1991 R epl. Vol.). The Louisiana court harmonized the penalties provision of Section 12:1220 (B)(2) of the Insurance Code with the immunity provisions of Section 12:1391, stating: La.R.S. 22:1220 (F) specifically provides that LIGA is immune 24 from an assessm ent of spec ial damag es. In light of LIG A s broad grant of immunity under La.R.S. 22:1391, La.R.S. 22:1220 (F) cannot be read, by implication, as allowing the imposition of general d amages and/or p enalties thereunder. Id. at 1120. The cou rt noted that, to expose LIGA [to penalties] could potentially threaten the very existence of the insurance guaranty fund which has as its avowed statutory purpose the avoidance of excessive delay in payment a nd the avo idance of financial los s to claiman ts or policyholders. Id. at 1120. The court therefore held that LIGA is not liable for penalties in failing to timely pay claims. Yanni u rges us to ad opt the Rh ode Island Suprem e Court s h olding in Callaghan v. Rhode Island Occupational Info. Coordinating Comm./Indus. Educ. Council of Labor, 704 A.2d 740 (R.I. 19 97), which upheld a la te-payment p enalty against the state s insurer s insolvency fund, despite the fund s immunity against liability, on the ground that the penalty ensured that the fund discharged its obligations in a timely mann er. Yanni a rgues that this approa ch prov ides the only rem edy for c laiman ts who se awa rd has n ot been timely paid . In Callaghan, the Supreme Court of Rhode Island addressed whether the Rhode Island Insurer s Insolvency Fund ( RIIIF ), which mirrors M aryland s PC IGC, w as susceptib le to the assessment of late-payment penalties under Section 28-33-17 (f)(5) of the Rhode Island Workers Compensation Act for the RIIIF s late payment of co st-of-living ad justments to Callaghan s workers compensation award. Section 27-34-16 of the General Laws of Rhode Island provides: there shall be no liability on the part of, and no cause of action 25 of any nature shall arise against, any member insurer, the fund, or its agents or employees, the board of directors, or the commissioner or his or h er repres enta tive f or an y action taken or not taken by them in the performance of their powers and duties under this chapter. Rhode Island General Laws (1956, 1988 Repl. Vol.), Section 27-34-16. The Rhode Island Court defined liability as a broad legal term . . . [that] has been referred to as of the most comprehensive sign ifica nce, inclu ding almo st every ch arac ter of haz ard o r resp onsi bility, absolute, contingent, or likely, and determined that the RIIIF s immunity statute could not be given such a broad application b ecause it w ould abrogate the fund s obligation to pay the penalties. Callaghan, 704 A.2d at 747 . The court reasoned that, to give the RIIIF such broad immunity would contravene the legislative purpose beh ind the [R IIIF] Act, namely to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyho lders be cause o f the ins olvenc y of an in surer. Id. In addition to being a minority view, the Rhode Island opinion is distinguishable from our jurisprudence because the opinion did not explore whether there exists an alternative remedy to the enforcement of the timely payment of insolvent insurer s covered claims, which could inclu de the filing a complaint w ith the State insurance com missioner. We explored the authority of the Insurance Co mmissioner with reg ard to the PCIGC in Insurance Commissioner of State v. Property and Casualty Insurance Guara nty Corporation, 313 Md. at 522-23, 546 A.2d at 460, in which claimants sought payment of 26 their Personal Injury Protection ( PIP ) claims from the PCIGC when their insurance provider became insolvent. The PCIGC contended that the claims were not covered claims and refused to pay them. The Insurance Commissioner disagreed a nd ordere d the PC IGC to pay them. We affirmed the authority of the Com missioner, sta ting that, und er certain circumstances, the Comm issioner retained the authority to order an insurer to pa y a claim, citing to specific statutory provisions of the Insurance Article: Section 55(2)[20] provides: [t]he Com missioner m ay refuse to issue or after a hearing refuse to renew, or may revoke or suspend an insurer's certificate of authority, in addition to other grounds therefor in this article, if the insurer: (i) Violates any provision of this article other than those as to whic h refusal, suspension or revocatio n is mand atory. . . . (iv) Without just cause unreasonably refuses or delays payment to claimants of the amount due them. Section 55A [21] provides: In lieu of or in addition to revocation 20 Section 55(2) of Article 48A was recodified in 1995 as Section 4-113 (b) of the Insurance Article, 1995 Md. Laws, Chap. 36, which provides: The Commissioner shall deny a certificate of authority to an applicant or; subject to the hearing provisions of Title 2 of this article, refuse to renew, suspend, or revoke a certificate of authority if the applicant or holder of the certificate of au thority: (1) violates any provision of this article other than one that provides for mandatory denial, refusal to renew, suspension, or revocation for its violation. *** (5) refu ses o r delays payment of amounts due claimants without just cause. 21 Section 55A of Article 48A was recodified in 1995 Section 4-113 (d) of the (contin ued...) 27 or suspension of an insurer's certificate of authority the Commissioner may . . . (2) require th at restitution be made by such insurer to any person who has suffered financial injury or dama ge as a r esult of such v iolation . Id. at 527-28, 546 A.2d at 462-63. Thus, we held that, because the PCIGC stands in the shoes of the insurer with regard to covered claims, and it had v iolated the Ins urance A rticle by failing to pay a covered claim, it was therefore subject to the Comm issioner s powers under §§55 (2)(i) and 55A. Id. at 527, 5 46 A.2 d at 462 . Thus, a remedy afforded to Yanni in his pursuit of the prompt payment of his covered claim w as to have filed a complaint with the Insurance Commissioner at the expiration of the fifteen-day pa yment period . The Co mmission er would then have had the opportun ity to investigate the claim and intervene on Yanni s behalf. This option explored in our jurispruden ce was n ot explored by the Rhod e Island cou rt. We, therefore, hold that the penalties should not have been assessed against the PCIGC because it is not an insurer for purposes of Section 9-728 of the Labor and Employment Article. We also hold that the PCIGC is not obligated to pay the late-payment 21 (...continued) Insurance Article, 1995 Md. Laws, Chap. 36, which provides: Instead of or in addition to suspending or revoking a certificate of au thority, the Com miss ione r may: *** (2) require the holder to make restitution to any person who has suffered financial injury because of the violation of this article. 28 penalties because the penalties do not fit within the statutory definition of covered claims of Section 9-301 (d) of th e Insura nce A rticle. Fu rther, ev en if the PCIG C we re an in surer, and the penalties were part of the covered claim, it is immune from the assessment of latepayment penalties under the provisions of Section 9-314 (a) of the Insurance Article and Section 5-412 of the C ourts an d Judic ial Proc eeding s Article . Thus, we reverse summary judgment for Yanni and remand to the Circuit Court for Montgom ery County for the entry of summ ary judgm ent for P CIGC . See Salam on v. Prog ressive Cla ssic Ins. Co., 379 Md. 301, 317, 841 A.2d 85 8, 868 (20 04); Cole v. Sta te Farm M ut. Ins. Co., 359 Md. 298, 318, 753 A.2d 53 3, 544 (2000). JUDGMENT OF TH E CIRCU IT COURT FOR MONTGOMERY COUNTY REVERSED. C A SE REMANDED TO THAT COURT WITH DIRECTIONS TO GRANT A P P E L L A NT S M O T I O N F O R SUMMARY JUDGMENT AND TO D E N Y A P P E L L E E S C R O S S MOT ION FOR ENTRY OF SUMMARY JUD GM ENT . COSTS TO BE PAID BY APPELLEE. Judg e Ha rrell joins in th e jud gme nt as to the imm unity issue only. 29 In the Circuit Court for Montgomery Co. Case No. 264514-V IN THE COURT OF APPEALS OF MARYLAND No. 67 September Term, 2006 __________________________________________ PROPERTY AND CASUALTY INSURANCE GUARANTY CORPORATION v. PETER L. YANNI __________________________________________ Bell, C.J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. __________________________________________ Dissenting Opinion by Wilner, J., which Bell, C.J., Joins. __________________________________________ Filed: March 15, 2007 *Wilner, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. In May, 2003, Peter Yanni filed a workers compensation claim against his employer, MTI Cor pora tion, and its insure r, Le gion Insu ranc e Co mpa ny. Tw o mo nths later , in Ju ly, 2003, Legion became insolvent, and appellant, Property and Casu alty Insurance G uaranty Corpo ration (P CIGC ), accep ted the c laim as a cove red cla im. On September 29, 2004, the Workers Compensation Commission entered an award directing MTI and Legion, the actual parties to the proceeding, to pay temporary total and permanent partial disability ben efits to Yanni, and an attorney s fee to his attorney. Because Legion was insolvent, PCIGC had a statutory obligation under Maryland Code, § 9-306 of the Insurance Article (INS) and § 9-72 7 of the L abor and Employm ent Article (L E), to commence paym ent o f tha t award w ithin fifte en days after its entry. It failed to do so, prompting a request by Yanni and his attorney for penalties allowable under LE § 9-728. After two false starts, the Commission found that penalties were appropriate and that PCIGC was liable for the penalties, and it therefore assessed them against PCIGC . The Circuit Court for Montgomery County, on PCIGC s action for judicial review, entered summary judgment affirming the Co mmission order. Though acknowledging its responsibility to pay covered claims made against an insolvent insurer within fifteen days after entry of the award, its failure to discharge that resp onsi bility, and the au thority of the Comm ission to award penalties for non-conformance with that obligation, PCIGC nonetheless contends that no such penalties may be awarded against it because (1 ) it is not an insurer, (2) a penalty assessed under LE § 9-728 does not constitute a covere d claim fo r which it is liab le, and (3) ev en if it is an insurer and the penalty is a covere d claim, it ha s statutory immu nity against liability. The Court proposes to find merit in all three of tho se defens es. With resp ect, I dissent. None o f them ha s merit, for if any of them did, the statute directly placing on PCIGC the obligation to pay Workers Compensation awards issued against insolvent insurers would be rendered largely toothless. The issue here, as framed by PCIGC, is entirely one of statutory interpretation. Our goal, therefore, is to implement, not find a way to frustrate, the legislative intent. Citing INS § 9-302, the Court acknowledg es that PCIGC s statutory purpose is to provide a mechanism for the prompt payment of covered claims under certain [insurance] policies and to avoid financial loss to residents of the State who are claimants or policyholders of an insolvent insurer. (Emp hasis ad ded). T hat, with in the bo unds o f the law , is what the C ourt should strive to do. Is PCIGC An Insurer? Relying on Uninsured Employers v. Danner, 388 Md. 649, 882 A.2d 271 (2005) and a few out-of-State cases, the Court first holds that, despite a clear, unambiguous statutory provision to the con trary, PCI GC is not an in surer. In my view , Danner is distinguisha ble and the out-of-State cases do not accurately reflect the intent of the Maryland General Ass emb ly. Like Mr. Ya nni, Gerald Danner suffered a compensable accidental injury, filed a claim for workers compensation benefits, and received an award. Unlike this case, however, his employer did not carry workers compensation insurance and made no payments on the -2- award . Danner therefore requested payment from the Unin sured Employer s Fun d (UEF), which denied the requ est. The Workers Compensation Commission thereafter ordered the Fund to pay the award, as well as a penalty and attorney s fee. On judicial review, w e upheld the order to pay the benefits under the award but reversed the order to pay the penalty and attorney s fee. We are not concerned here with the discussion regarding the Fund s obligation to pay the basic bene fits provided for in the award, but rather the reason why we held that the Fund was not liable for the penalty. That also was a matter of statutory construction. LE § 9-728 the statute that allows the Commission to assess penalties for late payment of awards permits the Commission to assess a penalty if it finds that an employer or its insurer has failed, without good cause, to be gin paying an award w ithin the time a llotted. (Emp hasis added). The Fund was certainly not Danner s empl oyer; the question was wh ether it qualifie d as the emplo yer s insu rer. The term insurer is not defined in § 9-728 or, indeed, anywhere in subtitle 7 of title 9. In the absence of any directly controlling statute, we looked to two other sections of the Workers Compensation Law LE § 9-401 (b) and LE § 9 -316(a)(3). Section 9-401 (b), which is part of the subtitle dealing with the requirement of insurance coverage, defines authorized insurer as a stock corporation or mutual insurer that is authorized to provide workers comp ensatio n insura nce in th e State, a govern menta l self-ins urance group , a selfinsurance group of private employers that meets certain statutory requirements, or an individual employer that self-insures in conformance with LE § 9-405. Section 9-316(a)(3), -3- which permits the Commission to collect a tax from insurers to defray the expenses of the Commission, defines insurer for that purpose in much the same way as § 9-401(b). The UEF, we held, d id not fit with in either of those definitions, and we therefore concluded, in the absence of any other statute that might bring it within the ambit of an insurer, it could not be con sidered one. Because it was neithe r an emplo yer nor an insu rer, it was not a n entity against which a penalty could be assessed under LE § 9-728. In marked contrast to the situation with respect to UEF, PCIGC is defined as an insurer, for the very purpose at issue here. PCIGC is created and its duties are defined in title 9, subtitle 3 of the Insurance Article. Title 9 deals with im paired insu rance entities; s ubtitle 3 provides for PCIGC. Unlike UEF, PCIGC is a private corporation, not a State agency. INS § 9-306(a) provides that, except as to surety bonds, PCIGC is obligated to the extent of covered claims existin g on or be fore the de termination of insolven cy and, within certain dollar limits, requires it to p ay the full amount of any covered claim arising out of a workers compensation policy. Of particular relevance and, to me, of governing importance in this regard, § 9-306(c) p rovides tha t: [PCIGC] shall be deemed the insurer to the extent of the Corporation s obligation on the covered claims and, to that extent, shall have the rights, duties, and obligations that the insolvent insurer would have had if the insurer had not become insolve nt. (Emphasis add ed). Unlike the situation in Danner, we do not need to go hunting for definitions of insurer in other parts of the Labo r and Em ployment A rticle that have nothing d irectly to -4- do with PCIGC to determine whether PC IGC falls within them. The statute that creates PCIGC and sets fo rth its functions a nd obligatio ns make s it an insurer for this very purpose and expressly imp oses on it the duties and o bligations tha t the insolven t insurer (Legion) would have had if it had not b ecome in solvent. Th at, alone, rend ers the hold ing in Danner and the analysis underlying that holding inapposite. To the extent that the penalty assessed by the Commission constitutes part of a covered claim, PCIGC clearly is an insurer and therefore falls within the ambit of LE § 9-728. None of the out-of-State cases relied upon by the Court d ictate a differ ent result. Cover ed Claim The Court seeks to avoid the otherwise unambiguous application of INS § 9-306(c) by concluding that a penalty assessed pursuant to LE § 9-728 does not constitute a covered claim. It notes that INS § 9-301(d), in relevant part, defines covered claim as an insolvent insurer s unpaid obligation that arises out of a policy of the insolvent insurer issued to a resident o r payable to a res ident on be half of an insu red of th e insolv ent insu rer. It then concludes that penalties assessed by the Commission under LE § 9-728 are statutory in nature and do not arise out of a policy of the insolvent insurer and, for that reason, do not constitu te cov ered cla ims. That, to me, is an unduly narrow construction that is wholly inconsistent with the legislative intent and, indeed, the whole purpose of PCIGC. PCIGC stands in the shoes of the insolvent insurer and is obligated to pay claims that, but for its insolvency, the employer s -5- insurer would be obligated under its policy to pay. As this Court has confirmed on a number of occasions , Maryland adheres to the general rule that parties to a contract are presumed to contract mindful of the existing law and that all applicable or relevant laws must be read into the agreement of the parties just as if expressly provided by them, except where a contrary intention is evident. Wright v. Commercial & Sav. Bank, 297 Md. 148, 153, 464 A.2d 1080, 1083 (1983); Auction Reps. v. Ashton, 354 Md. 333, 344, 731 A.2d 441, 447 (1999); Lema v. Bank of America, 375 M d. 625, 6 45, 826 A.2d 5 04, 516 (2003 ). That includes, in this instance, the requirement in LE § 9-727 that insurers commence payment of awards within fifteen days, and, in my view, it would also include the obligation to pay any penalty as sessed under L E § 9-7 28 on a ccoun t of the in surer s f ailure to do so. The penalty provision in § 9-728 is not in the nature of an insurance regulation. It cannot be, because the Workers Compensation Com mission ha s no autho rity to regulate insurance companies. It is, rather, a mechanism to enforce an obligation that all workers compensation insurers have under their policies to pay awards promptly and is, by law, incorporated into every workers compensation insurance policy. Viewed in that l ight, a penalty assesse d for an ins urer s failure to comply with its policy obligations, even though asse ssed purs uant to statute , mus t also be re gard ed as arising from the p olicy. It is thus clear to me that Legion was obligated under its policy to pay both the award made to Mr. Y anni in accordance with LE § 9-727, and any penalties assessed under LE § 9-728 by reason of its failure to do so. Because its liability for the penalty arises solely from its statu s as a n ins urer, it ne cess arily m ust arise o ut of a p olicy of th e insolv ent insu rer. -6- That mak es it a covered claim , for which, in light of L egio n s in solv ency, PCIGC is liable. This conclusion is not just a matter of construing the words of the statutes in a proper relational way. It goes to the heart of the statutory scheme. There are only two purposes for requiring employers to be insured to assure paym ent of aw ards to injured workers and to protect employers from insolvency by reason of such awards. That is reflected in INS § 9302, which states the purpose of subtitle 3 as being to provide a mech anism for the prompt payment of covered claims . . . and to avoid financial loss to reside nts of the State who are claimants or policyholders of an insolven t insurer. If PCIGC were free to ignore Commission awards w ith impunity without being subject to the penalties allowed under LE § 9-728 that statu tory purpo se w ould remain in serio us jeopardy. It is of some importance that, although PCIGC is obligated to pay covered claims arising under a wide variety of casualty insurance p olicies, the Le gislature saw fit, in INS § 9 -306(a)(3), to specify, in particular, PCIGC s obligation to pay the full amount of covered claims arising out of a work ers com pensat ion pol icy. Immunity As the third prong of its holding , the Court d etermines th at, even if PCIGC were an insurer and even if a penalty assessed under LE § 9-728 constitutes a covered claim, PCIGC is immune from such an assessment under Maryland Code, § 5-412 of the Cts.& Jud. Proc. Article (CJP), which provides: -7- There shall be no liability on the part of and no cause of action of any nature sha ll arise against a member insurer, [PCIGC] or its agents or employees, the Board of Directors, or the Insurance Commissioner or the Commissioner s representatives for any action taken by them in the perfo rmance of their powers and duties u nder T itle 9, Su btitle 3 o f the Ins urance Article. In holding that the immunity provided under that section precludes the assessment of penalties against PCIGC, and thus allows it to thumb its corporate nos e at its statutory obligation, the Court relies on A.S. Abell P ub.Co. V . Mezzan ote, 297 Md. 26, 464 A.2d 1068 (1983). The princ ipal issue in that case was w hether the M aryland Insura nce Gu aranty Association a precursor of PCIGC was a State agency for purposes of the Public Information Act. A newspaper had filed a PIA request to inspect certain records of the Association, which w as de nied on th e gro und that t he A ssoc iatio n wa s not a Sta te ag ency. The Circuit C ourt ag reed. We concluded that the Association was a State agency that was subject to the PIA and remanded the case to the Circuit Court for further proceedings. In doing so, we concluded that, in light of the predecessor statute to CJP § 5-412, the Association would n ot be liable fo r costs or attorneys fees that otherwise might be assessed under the PIA. That is a far different situation than what we have here. As noted CJP § 5-412 provides immunity for any action taken by [PCIGC or its members, directors, employees, or agents, or the Insurance Commissioner] in the performance of their powers and duties under Title 9, S ubtitle 3 of the In suranc e Article . A corpo rate decision by a hybrid guara nty entity created by statute, presumably on the advice of counsel, that it is not a State agency and therefore is not subject to the PIA may well be regarded as one that, even if later proved -8- wrong, was nonetheless taken in the performance of its corporate pow ers and duties. A decision not to pay a covered claim in conformance with a clear statutory m andate is not one taken in the performance o f its powers and duties. PCIGC has no power or duty not to pay a covered c laim for which it is legally responsible. Failure to pay is not the performance of its duties but an unlawful defiance and disregard of them. To apply the immunity acc orded in C JP § 5-41 2 to LE § 9-728 would be equivalent to having the tail wag the dog, for, read literally in that context, it would preclude any liability on the part of PCIGC for refusing to pay the very claims it was created to pay. The implication of such a bro ad reading of CJP § 5-412 is the substan tial risk of leavin g claiman ts without a source for the payment and employers subject to a liability that they may be incapable of discharging. The Court sug gests that the s olution to an y default by PCIGC in its obligation to pay awards entered by the Workers Compensation Commission in conformance with LE § 9-727 is for the claimant (or employer) to file a complaint with the Insurance Commissioner. Citing Insurance Com r v. Prop.& Cas. Corp., 313 Md. 518, 546 A.2d 458 (1988), the Cou rt observes that the Commissioner is empowered to order PCIGC to pay a disputed claim. That is true, but it is hard ly an e xclu sive, or ev en a p racti cal re med y. That case involved a dispute over whether PCIGC was responsible for paying personal injury protection claims arising under automobile insurance policies issued by insurers that had become insolvent. The issue was purely a legal, and generic, one of whether liability existed for any such claim. The Commissioner ordered PCIGC to pay the claims and, when it refused, the Commissioner, -9- after an admin istrative h earing, a gain or dered it t o pay the claims. The issue here is not whether PCIGC has legal liability for a class of claims. It recognized its ob ligat ion to pay Mr. Yanni s award, and it has never contested that the payment of awards must commence within fifteen days. For whatever reason, it simply failed to comply with its obligation. T o require the claimant, w ho needs the mone y immediately and wh o, by law, is entitled to it within fifteen days, to file a complaint with the Insurance Commissione r, who knows none of the underlying facts, and go through a contested case administrative hearing, with the further pro spect of jud icial review in a Circuit C ourt, simply to have another agency do what the Workers Compensation Commission has already done, nam ely, order P CIGC to pay the award , makes utterly no sense. That cannot be what the General Assembly intended. For these re asons, I wo uld affirm the judgm ent of the C ircuit Court. Chief Ju dge Bell a uthorizes m e to state that he joins in the diss ent. -10-

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