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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-southern judicial district No. 2006-024 OB/GYN ASSOCIATES OF SOUTHERN NEW HAMPSHIRE v. NEW HAMPSHIRE INSURANCE GUARANTY ASSOCIATION Argued: June 8, 2006 Opinion Issued: December 19, 2006 McDonough & O'Shaughnessy, P.A., of Manchester (Robert J. Meagher on the brief and orally), for the petitioner. Nixon Peabody LLP, of Manchester (John E. Friberg, Jr. & a. on the brief, and Mark D. Robins orally), for the respondent. BRODERICK, C.J. The petitioner, OB/GYN Associates of Southern New Hampshire (OB/GYN), appeals an order of the Superior Court (Groff, J.) granting summary judgment to the respondent, New Hampshire Insurance Guaranty Association (NHIGA), and denying its cross-motion for summary judgment. The trial court interpreted the New Hampshire Insurance Guaranty Association Act (Guaranty Act), RSA 404-B:1 et seq. (1998), not to require NHIGA to partially reimburse OB/GYN for the payment OB/GYN made to settle a professional negligence action against itself and one of its physicians whose professional liability insurer had become insolvent. We affirm.

I The facts are not in dispute. While under the care of Leonard Wasserman, M.D., a physician employed by OB/GYN, Hanh Tran died of complications from childbirth. Wasserman was insured by PHICO Insurance Company (PHICO). OB/GYN was insured by Covenant Health Systems Insurance, Ltd. (Covenant). Tran's estate sued Wasserman, OB/GYN, St. Joseph's Hospital, and another physician, Sayed Elsiah, M.D., who was not employed by OB/GYN. The estate's claims against OB/GYN were based solely upon OB/GYN's vicarious liability for Wasserman's actions. During the pendency of the suit, PHICO was declared insolvent and placed in court-ordered liquidation. Thereafter, NHIGA assumed Wasserman's defense pursuant to RSA 404-B:8, I(b). Shortly before trial, NHIGA concluded that it was not required to participate in settlement until OB/GYN had exhausted all the coverage available under its Covenant policy to satisfy the estate's claims. Ultimately, OB/GYN agreed to settle the wrongful death claims against itself and Wasserman for $500,000. Of the total settlement, $300,000 was paid on Wasserman's behalf. OB/GYN paid the settlement from its own funds and never made a claim against Covenant. In exchange for OB/GYN's payment on his behalf, Wasserman assigned his rights under his PHICO policies to OB/GYN. OB/GYN then filed a declaratory judgment action against NHIGA, asserting it was entitled, under its assignment from Wasserman, to recover $300,000 from NHIGA, the statutory maximum NHIGA would have been obligated to pay the wrongful death plaintiff on its claims against Wasserman in the absence of other available coverage. See RSA 404-B:8, I(a). OB/GYN contended that NHIGA's obligation to reimburse it for the payment it made on Wasserman's behalf was triggered even though it never made a claim against its Covenant policy and used its own funds to settle the claims against itself and Wasserman. NHIGA moved for summary judgment contending that OB/GYN was required, under RSA 404-B:12, I, to exhaust all solvent insurance available to satisfy the underlying plaintiff's claims before NHIGA's obligation to assume PHICO's obligations would be implicated. NHIGA further argued that OB/GYN's claim against it was not a "covered claim" because OB/GYN settled with the underlying plaintiff from its own funds, thus precluding the existence of an "unpaid claim," which is part of the statutory definition of a "covered claim." See RSA 404-B:5, IV. OB/GYN filed a cross-motion for summary judgment arguing, in part, that NHIGA breached its statutory duty to pay the claim it held under the Wasserman assignment because NHIGA's duty to participate in settlement with the underlying plaintiff did not depend upon

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exhaustion of the Covenant policy. The trial court granted NHIGA's motion for summary judgment and denied OB/GYN's cross-motion for summary judgment. On appeal, OB/GYN argues that the trial court erred by ruling that: (1) NHIGA was not time-barred, under RSA 491:22, III (1997), from arguing that the Covenant policy provided coverage relieving NHIGA of any obligation to reimburse OB/GYN for the part of the settlement it paid Tran's estate on Wasserman's behalf; (2) the Covenant policy had to be exhausted before NHIGA's duty to pay on the estate's claims against Wasserman could have been triggered; and (3) there was coverage that OB/GYN failed to exhaust that was available under the Covenant policy to satisfy the estate's claims, even though OB/GYN and Covenant agreed that there was no coverage. We address each issue in turn. II OB/GYN first argues that the trial court erred by allowing NHIGA to litigate the construction of the Covenant policy because NHIGA's reliance on that policy in defense of OB/GYN's petition was, in effect, a request for a declaratory judgment to determine insurance coverage and was, therefore, time-barred under RSA 491:22, III. We do not agree. We review the trial court's application of the law to the facts de novo. Tech-Built 153 v. Va. Surety Co., 153 N.H. 371, 373 (2006). According to the plain language of the declaratory judgment statute, the limitation period pertains to "petition[s] . . . under this section to determine coverage of an insurance policy." RSA 491:22, III. As OB/GYN readily acknowledges, NHIGA never filed a petition for a declaratory judgment, and the statute pertains only to petitions for declaratory judgment, not to legal arguments about insurance coverage advanced in other pleadings. See Ryan James Realty v. Villages at Chester Condo. Assoc., 153 N.H. 194, 199 (2006) ("When a statute's language is plain and unambiguous . . . we will not . . . add language that the legislature did not see fit to include." (quotation omitted)); cf. Craftsbury Co. v. Assurance Co. of America, 149 N.H. 717, 721 (2003) (holding that parties are not collaterally estopped from litigating policy coverage issues in a subsequent action even when an earlier declaratory judgment action was dismissed as untimely). Thus, OB/GYN's characterization of NHIGA's reliance upon the Covenant policy as a "de facto declaratory judgment action" does not advance OB/GYN's argument. RSA 491:22, III does not apply, and NHIGA was not time-barred from asserting a defense that relied upon an interpretation of the Covenant policy. Moreover, because the declaratory judgment process is not mandatory, see Craftsbury, 149 N.H. at 721, NHIGA's failure to file a declaratory judgment petition is of no legal consequence.

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III OB/GYN next argues that the trial court erred by ruling that exhaustion of the Covenant policy to satisfy the claims of the Tran estate was a necessary prerequisite to OB/GYN's right, under its assignment from Wasserman, to be reimbursed by NHIGA. Again, we disagree. We interpret the Guaranty Act by focusing first upon its language, then by considering the context of the overall statutory scheme, and finally, by looking for guidance to other states' interpretations of similar statutes. Benson v. N.H. Ins. Guaranty Assoc., 151 N.H. 590, 595 (2004). The Guaranty Act is intended, in part, "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 policyholders because of the insolvency of an insurer . . . and to provide an association to assess the cost of such protection among insurers." RSA 404-B:2. The association established by the Guaranty Act is "a nonprofit unincorporated legal entity," RSA 404-B:6, funded by assessments from insurers, RSA 404B:8, I(c), which insurers are authorized to recoup from premiums paid by their policyholders, RSA 404-B:16. In a recent opinion, we described the overall statutory scheme of the Guaranty Act, characterized NHIGA as the insurer of last resort, and explained that the protection NHIGA provides is limited based upon its status as a nonprofit entity and the method by which it is funded. Benson, 151 N.H. at 598-99. We quoted with approval two opinions describing the operation of the California Insurance Guaranty Association: While CIGA's general purpose is to pay the obligations of an insolvent insurer, it is not itself an insurer and does not "stand in the shoes" of the insolvent insurer for all purposes. CIGA is not in the "business" of insurance . . . . Its "business" is providing insureds with a limited form of protection from financial loss occasioned by the insolvency of their insurer. Id. at 599 (brackets and quotations omitted). The Guaranty Act limits NHIGA's obligations in a variety of ways. For example, NHIGA will not pay "any amount due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise." RSA 404-B:5, IV. In addition, NHIGA will provide no coverage for claims arising more than thirty days after an insurer's determination of insolvency, RSA 404-B:8, I(a), and, except in the case of an insolvent workers' compensation carrier, it will pay a maximum of $300,000 on a covered claim, id.

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The limitation at issue in this case is contained in a section of the Guaranty Act titled "Nonduplication of Recovery," which provides, in pertinent part: Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, including but not limited to the provisions of uninsured motorist coverage of any policy, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this chapter shall be reduced by the amount of any recovery under such insurance policy. RSA 404-B:12, I. As the District of Columbia Court of Appeals explained, when interpreting a virtually identical statutory provision: This section requires: 1) that a claimant with an alternative source of insurance coverage for a covered claim must first exhaust that alternative source[ ] before seeking compensation from the DCIGA, and 2) that the DCIGA's obligation be reduced by the amount of duplicate coverage of the covered claim from alternative sources of insurance. These two clauses together provide that where an individual has more than one insurance policy that covers the same claim, the amount paid by the other policy should be deducted from the total amount payable as damages for the claimant's injuries caused by the covered occurrence. The nonduplication of recovery and exhaustion requirements prevent a situation in which an injured collects the amount of the total loss from one insurance company and then gets an additional sum from the DCIGA. Thus, the provision prevents claimants from double recovery or windfall by virtue of an insurance company's insolvency. Zhou v. Jennifer Mall Restaurant, Inc., 699 A.2d 348, 352 (D.C. 1997) (quotations, brackets and citations omitted). In New Hampshire Insurance Guaranty Association v. Pitco Frialator, 142 N.H. 573 (1998), we held that the term "claim" in the nonduplication of recovery provision "encompasses both the insured's claim against NHIGA and the third party's underlying claim against the insured." Id. at 578. By extension, the term "claim against an insurer" in the first sentence of RSA 404B:12, I, necessarily encompasses both an insured's claim against a solvent insurer and the third-party claim against the insured that gives rise to the insured's claim against its solvent insurer. See Bird v. Norpac Foods, Inc., 934

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P.2d 382, 387 (Or. 1997) ("it is more plausible that the legislature intended that the word `claim' refer simply to a generic assertion of a right to property or money arising out of a common injurious event"). We acknowledge that our opinion in Pitco could be read as implying that our decision in that case was based upon the special nature of workers' compensation insurance vis-

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