TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-99-00293-CV



Texas Property and Casualty Insurance Guaranty Association, Appellant

v.

Jack M. Webb, as Special Deputy Receiver of Employers Casualty Company and Employers National Insurance Company; and Jose Montemayor, in His Capacity as Receiver of Employers Casualty Company and Employers National Insurance Company, Appellees



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT NO. 97-07070, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING

This is an appeal from a summary judgment involving the claims priority scheme of the liquidation statute of the Texas Insurance Code. Appellant Texas Property and Casualty Insurance Guaranty Association ("TPCIGA") appeals from a summary judgment in favor of appellees Jack M. Webb, as special deputy receiver of Employers Casualty Company ("ECC") and Employers National Insurance Company ("ENIC"), and Jose Montemayor, the Commissioner of Insurance in his capacity as permanent receiver of ECC and ENIC.

As property and casualty insurers that have been declared insolvent, ECC and ENIC (collectively "the estates") have assets that are to be paid by the receiver or special deputy receiver in accordance with the claims priority scheme set forth in Texas Insurance Code article 21.28, section 8 ("the liquidation statute"). We are presented with the question of whether TPCIGA's claims against the estates' assets arising from defense costs incurred in defending liability and workers' compensation claims are entitled to Class 1 priority as claims-handling expenses or Class 2 priority as payments of policyholder claims. Because we conclude that the claims-handling expense category under Class 1 does not include expenses incurred in defending insureds but that such costs are properly classified as payments of policyholder claims under Class 2, we affirm the judgment of the district court.

BACKGROUND Two Insurance Code articles govern the receivership proceedings underlying the instant cause: (1) article 21.28-C, ⁽¹⁾ which establishes TPCIGA, and (2) article 21.28, ⁽²⁾ which outlines the general statutory duties of conservators and receivers for impaired insurance companies. TPCIGA is an association of all licensed property and casualty insurers in Texas. See Guaranty Act § 6. By assessing contributions from solvent member insurers, TPCIGA maintains a guaranty fund that assumes insolvent insurers' obligations with respect to statutorily defined "covered claims." Id. § 5(8). When TPCIGA pays a claim or incurs a claim-related expense in connection with a particular insolvent insurer, TPCIGA has a corresponding claim against the insolvent insurer's assets for the amount of the claim or expense payment. See id. § 11(c), (d); see also Tex. Ins. Code Ann. art. 21.28, § 8.

The receiver's duties and responsibilities in liquidating an insolvent insurance company are comparable to those of a bankruptcy trustee. As with a bankruptcy trustee, the receiver must classify according to statute the various types of creditors, evaluate the validity of claims against the estate, and make distributions. The receiver's duties in the liquidation of an insurance company are set forth in article 21.28 of the Texas Insurance Code entitled "Liquidation, Rehabilitation, Reorganization or Conservation of Insurers." Tex. Ins. Code Ann. art. 21.28, § 2. The liquidation statute provides a framework within which the receiver conserves the assets of the company and makes distributions among creditors and claimants. See id. §§ 2, 8.

The scheme providing for distribution of assets and classification of claims is set forth in section (8)(a) of the liquidation statute. ⁽³⁾

The statute provides that the highest priority classification, Class 1, is to be given to "[a]ll of the receiver's, conservator's, and supervisor's costs and expenses of administration," "all of the expenses of an insurance guaranty association or foreign insurance guaranty association in handling claims," and secured creditor claims. Id. § 8(a)(2)(A)(i)-(iii) (emphasis added). Class 1 claims are entitled to priority over all other classes of claims against the estates.

Class 2 includes two categories of claims: "[a]ll claims by policyholders, beneficiaries, insureds, and liability claims against insureds covered under insurance policies and insurance contracts issued by the insurer," and "[a]ll claims by an insurance guaranty association or a foreign insurance guaranty association that are payments of proper policyholder claims." Id. § 8(a)(2)(B)(i), (ii) (emphasis added). Class 2 claims are paid only after full payment of Class 1 claims.

The liquidation statute does not define the phrases "expenses . . . in handling claims" or "payments of proper policyholder claims." In 1987, the statute directed the receiver to process and pay covered claims on behalf of TPCIGA. See Act of June 17, 1987, 70th Leg., R.S., ch. 1073, sec. 33, § 2(e), (g), 1987 Tex. Gen. Laws 3610, 3644-45. However, the receiver was not required to defend insureds. See id. In August 1991, the legislature changed the system for handling insolvent insurance company receiverships. The role of paying and processing covered claims was transferred from the receiver to TPCIGA. See Act of Aug. 30, 1991, 72d Leg., 2d C.S., ch. 12, sec. 1.20, § 8, 1991 Tex. Gen. Laws 252, 266-67.

In 1993, the legislature revised the Guaranty Act as it related to TPCIGA's duties toward policyholders. TPCIGA's governing statute was amended to require TPCIGA to provide a defense for policyholders when such a defense constituted a "covered claim." Act of June 17, 1993, 73d Leg., R.S., ch. 685, § 9.07, 1993 Tex. Gen. Laws 2559, 2633-34.

In 1995, the legislature amended the liquidation statute. See Act of June 17, 1995, 74th Leg., R.S., ch. 1055, § 3, 1995 Tex. Gen. Laws 5216, 5217-18. Addressing the priority provisions of the liquidation statute for the first time since 1987, the legislature expanded the kinds of guaranty association claims that would receive Class 1 priority and also provided:  "For the purpose of this subdivision, attorney's fees incurred by an insurance guaranty association or foreign insurance guaranty association in the defense of an insured under a policy issued by an impaired insurer constitute an expense incurred in handling claims." Id. Thus, effective June 17, 1995, "claims-handling expenses" explicitly include defense costs.

TPCIGA has asserted claims against the estates for costs incurred in the defense of third-party liability and workers' compensation claims under ECC and ENIC policies. The facts relating to the claims are not in dispute. ECC and ENIC were placed into permanent receivership on January 6, 1994. The claims in issue are the expenses incurred by TPCIGA during the period from the inception of the ECC and ENIC receiverships through June 30, 1995. TPCIGA's claim against ECC in receivership is $1,402,321.63, and is comprised of $1,369,419.63 in defense costs incurred by TPCIGA in connection with the defense of liability claims under ECC policies, and $32,902.00 in defense costs incurred in connection with workers' compensation claims under ECC policies. TPCIGA's claim against ENIC in receivership is $109,416.44 of which $50,164.47 in defense costs was incurred by TPCIGA in defense of liability claims under ENIC policies and $59,251.97 in defense costs was incurred in connection with workers' compensation claims under ENIC policies.

The special deputy receiver classified the defense costs as Class 2 claims. TPCIGA brought this action against the special deputy receiver, as required by statute, to appeal the classification. All parties filed motions for summary judgment. The district court granted summary judgment in favor of appellees and against TPCIGA.

STANDARD OF REVIEW

We review the judgment under the familiar precepts of summary judgment law. Determining the proper construction of a statute and the propriety of a ruling on a motion for summary judgment are both questions of law. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989); Texas Medical Liab. Trust v. Zurich Ins. Co., 945 S.W.2d 839, 842 (Tex. App.--Austin 1997, writ denied). Summary judgment is proper when the movant proves that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a. Where both parties file a motion for summary judgment and one is granted and one is denied, we review the summary judgment proof presented by both sides and determine all questions presented and "render such judgment as the trial court should have rendered." Commissioners Court v. Agan, 940 S.W.2d 77, 80 (Tex. 1997).

In granting the appellees' motion for summary judgment, the district court concluded that the proofs of claim appealed by TPCIGA were Class 2 claims pursuant to article 21.28 of the Texas Insurance Code. On appeal, TPCIGA challenges the court's granting of summary judgment on that basis.

DISCUSSION

While involving the interplay between the Guaranty Act and the liquidation statute, this case presents a single issue of statutory construction. TPCIGA argues that its legal costs incurred in the defense of liability and workers' compensation claims under ECC and ENIC policies are claims-handling expenses entitled to Class 1 priority. Appellees contend that providing a defense is a policy benefit and is properly classified as "payments of proper policyholder claims" entitling TPCIGA to a Class 2 priority. The single issue in dispute, then, is the proper priority to be accorded TPCIGA's claims for expenses incurred in defending liability and worker's compensation claims under ECC and ENIC policies pursuant to the version of the statutes in effect at the time the estates were placed into receivership.

TPCIGA contends first that the language of the claims priority statute mandates that the receiver of an insolvent insurer give Class 1 priority to "all expenses . . . in handling claims." Tex. Ins. Code Ann. art. 21.28, § 8(a)(2)(A)(ii). It necessarily follows, they argue, that all such expenses unambiguously include TPCIGA's costs in defending claims. Similarly, they argue that defense costs incurred by TPCIGA in defending liability and workers' compensation claims are not "payments of proper policyholder claims." Id. § 8(a)(2)(B)(ii). Because TPCIGA does more than bear the cost of the defense and actually performs the services necessary to investigate, manage, and defend the claim, TPCIGA urges that defense costs cannot be "payments of proper policyholder claims." The receiver does not dispute that all claims-handling expenses are included within Class 1. But that does not resolve the question before us, namely, what costs are included in the phrase claims-handling expenses.

Our objective when we construe a statute is to determine and give effect to the legislature's intent. See Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994); Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991). To determine legislative intent, we turn first to the language of the statute and principles of statutory construction. "The meaning of the statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, . . . the sole function of the court is to enforce it according to its terms." Caminetti v. United States, 242 U.S. 470, 485 (1917); accord St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1996). If possible, then, we are to discern legislative intent from the plain meaning of the words of the statute and enforce a provision as written. See United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240 (1989); City of Austin v. L.S. Ranch, 970 S.W.2d 750, 752 (Tex. App.--Austin 1998, no pet.). If the statute is clear and unambiguous, then we are to apply the statute according to the plain meaning of the words employed by the legislature. See Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983). We must not look to any one phrase, clause, or sentence of an act, but to the entire act itself. See Willingham v. Hagerty, 553 S.W.2d 137, 140 (Tex. Civ. App.--Amarillo 1977, no writ).

When legislative intent cannot be discerned from the plain meaning of the words of the statute, we look to the legislative history and former statutory provisions, the circumstances under which the statute was enacted, the object sought to be obtained, and the consequences of a particular construction. See Union Bankers Ins. Co., 889 S.W.2d at 280. We also consider "the old law, the evil, and the remedy." Tex. Gov't Code Ann. § 312.005 (West 1998). Finally, we give consideration to an agency's interpretation of a statute that the agency is charged with enforcing, especially when it has special expertise in the area, so long as that interpretation is reasonable. See Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993); Texas Utils. Elec. Co. v. Sharp, 962 S.W.2d 723, 726 (Tex. App.--Austin 1998, pet. denied).

With these principles in mind, we turn first to a determination of whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which the language is used, and the broader context of the statute as a whole. See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477 (1992). A statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses. See Teleprofits of Tex., Inc. v. Sharp, 875 S.W.2d 748, 750 (Tex. App.--Austin 1994, no writ) (citing 2A Norman J. Singer, Sutherland Statutory Construction § 45.02, at 6 (5th ed. 1992)).

When the legislature created the scheme for the priority of distribution of receivership assets, it created two classes of insurance guaranty association claims: Class 1(2) covering all guaranty association "expenses . . . in handling claims," and Class 2(2) covering all guaranty association "payments of proper policyholder claims." Tex. Ins. Code Ann. art. 21.28, §§ 8(a)(2)(A)(ii), 8(a)(2)(B)(ii). TPCIGA's argument that section 8(a) is clear and unambiguous reduces to an assertion that the phrase "all expenses in handling claims," interpreted in the context of the disputed statute, must include its defense costs. Citing Section 8(d) of the Guaranty Act, TPCIGA asserts that it is specifically mandated by the statute to "investigate, adjust and defend claims." But the actual language of the subsection is not so clear; rather, the association is called upon to "investigate and adjust, compromise, settle, and pay covered claims to the extent of the association's obligation and deny all other claims." Guaranty Act § 8(d).

Neither of these classifications--claims-handling expenses or proper policyholder claims--is more specifically defined. Nor are the terms themselves further defined in the statute. The parties advise us that no case law exists, and we have found none from which we may discern the meaning of the statute in this regard.

In giving effect to the intent of the legislature, we are called upon to "take statutes as [we] find them." RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985) (quoting Simmons v. Arnim, 220 S.W. 66, 70 (1920)). In Simmons, the supreme court urged that courts

should search out carefully the intendment of a statute, giving full effect to all of its terms. But they must find its intent in its language and not elsewhere . . . . They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation of the written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.

220 S.W. at 70. Because the language of the statute does not better inform us of its intent and the omission of definitions and descriptions is evident, we cannot say that the words have a plain meaning.

TPCIGA also argues that in 1995 the legislature enacted language "specifically in response to this dispute" to clarify its intention that liability and workers' compensation defense costs are to be included as claims-handling expenses accorded Class 1 priority. An amendment to the liquidation statute provides:

For the purposes of this subdivision, attorney's fees incurred by an insurance guaranty association or foreign insurance guaranty association in the defense of an insured under a policy issued by an impaired insurer constitute an expense incurred in handling claims.

Act of June 17, 1995, 74th Leg., R.S., ch. 1055, § 3, 1995 Tex. Gen. Laws 5216, 5217-18. Appellees respond that the 1995 amendment was effected in order to change the classification provision, not merely to clarify it. The district court concluded that the "clarification" was actually a change in the law and that, before 1995, the expenses in question were not Class 1 claims. We are not convinced by TPCIGA's argument that the statute is unambiguous and clear on its face. From whatever facet we may view the statute, we conclude that with regard to this dispute, and prior to June 17, 1995, its language is ambiguous.

Finding that the statute is ambiguous and that its meaning cannot be determined by reference to the language alone, we turn to other standard rules of statutory construction to interpret the meaning of section 8. Acknowledging the inextricable relationship between the liquidation statute and the Guaranty Act, we review the relevant changes to both statutes.

Section 8 of the liquidation statute became law in 1987. Prior to 1992, the receiver had responsibility for the administration, evaluation, and payment of claims with funds advanced by TPCIGA. Under article 21.28, the receiver was not required to provide for the defense of insureds of the insolvent company in pending or subsequent litigation. Even before the legislature made it discretionary for the receiver to provide for the defense of insureds, it was the receiver's policy not to provide a defense to insureds. Thus, the insured generally paid for its own defense and then submitted these costs as part of a Class 2 claim.

In August 1991, the legislature overhauled the system for handling insolvent insurance company receiverships. The receiver's duty to administer, evaluate, and pay claims was transferred to a guaranty association for all companies placed in receivership after January 1, 1992. See Act of Aug. 30, 1991, 72d Leg., 2d C.S., ch. 12, sec. 1.20, § 8, 1991 Tex. Gen. Laws 252, 266-67. In addition, TPCIGA's governing statute was amended to provide: "The association is considered the insurer to the extent of its obligation on the covered claims and to that extent has all rights, duties, and obligations of the impaired insurer as if the insurer had not become impaired." Id. Significantly, the legislature did not simultaneously alter the priority provisions of the liquidation statute.

In 1993, the legislature revised the Guaranty Act to explicitly require TPCIGA to provide a defense to policyholders when such a defense would constitute a "covered claim." Specifically, the subsection was amended as follows to include the italicized phrase:

The association shall undertake to discharge the policy obligations of the impaired insurer, including the duty to defend insureds under a liability policy, to the extent that the policy obligations are covered claims under this Act.

Act of June 17, 1993, 73d Leg., R.S., ch. 685, § 9.07, 1993 Tex. Gen. Laws 2559, 2633-34.

That the legislature intended for the guaranty association to fulfill the policy obligations of the impaired insurer is clear from the placement of the added language. The "duty to defend" language was added to a subsection setting forth the policy obligations of the impaired insurer to be assumed by TPCIGA. TPCIGA, as well as other guaranty associations covered by the statute, then, has a statutory duty to defend under a policy of insurance. The other main policy obligation is the duty to indemnify the insured for certain damages. These two policy benefits, a defense if sued and indemnity for loss, are policy obligations of the guaranty association. Significantly, again no change was made in the priority provisions of the liquidation statute in 1993.

A statute is presumed to have been enacted by the legislature with complete knowledge of existing law and with reference to it. See Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301 (Tex. 1990). When a new section is added to a statute, that new section must be construed in light of the original statute. See Schlichting v. Texas State Bd. of Medical Examiners, 310 S.W.2d 557, 563 (Tex. 1958). Likewise, when the legislature re-enacts a statute without change, as it did with section 8 of the liquidation statute prior to 1995, the legislature is presumed to concur with the administrative interpretation. See Associated Indem. v. Oil Well Drilling Co., 258 S.W.2d 523, 529 (Tex. Civ. App.--Dallas 1953), aff'd, 264 S.W.2d 697 (Tex. 1954). Analyzing the amendments to the Guaranty Act in light of the circumstances that existed when they were enacted and the legislature's decision not to change the priority provisions of the liquidation statute until 1995, we conclude that prior to 1995 the legislature concurred with the existing scheme in which defense costs generally were entitled to Class 2 priority.

The Guaranty Act sheds further light on the interpretation of the priority scheme. Section 11(c) of the Act provides that settlements and payments by TPCIGA on covered claims shall have "priority equal to that which the claimant would have been entitled to in the absence of this Act against the assets of the impaired insurer." The parties do not dispute that claimants under policies of insurance have Class 2 claims for either indemnity for loss or legal defense costs. TPCIGA argues, however, that the statutory scheme represents the legislature's intent to treat claims of a guaranty association differently--and more favorably--than those of a policyholder. We disagree. As the Guaranty Act provides, TPCIGA can only have the same priority that the policyholder would be entitled to if TPCIGA did not exist. When the legislature sought to give preference to the guaranty associations because of their unique role in insurance company insolvency, it did so in express language. We are unpersuaded that the language of the statute supports appellant's argument that the legislature sought to advantage the associations with respect to defense costs. Rather, we determine that the legislature did not intend TPCIGA defense cost claims to be superior to those of policyholders. Thus, this analysis accomplishes the goal of equal priority enunciated in section 11(c).

Our conclusion is also consistent with the position taken by the Commissioner of Insurance. We give serious consideration to an agency's interpretation of an ambiguous statute that it is charged with enforcing, especially when the agency has special expertise in the area, so long as that interpretation is reasonable. See Tarrant Appraisal Dist., 845 S.W.2d at 823; Texas Utils. Elec. Co., 962 S.W.2d at 726. The Commissioner urges that the legislature designed a scheme in which policyholders, as consumers, would receive as much of their expectation of insurance coverage as possible, even in the adverse situation of a receivership. The purpose of the liquidation statute is to "conserve the assets and protect the rights of policyholders and claimants" to accomplish the liquidation or rehabilitation of an insolvent insurer. See Tex. Ins. Code Ann. art. 21.28, § 2(e). We agree with the Commissioner that this goal is best achieved by the classification of defense costs by similarly situated creditors as Class 2 rather than Class 1 claims. ⁽⁴⁾

The parties agree that TPCIGA's payments on indemnities for loss on covered claims of policyholders are Class 2 claims. They further agree that claims by policyholders for amounts not covered by TPCIGA are Class 2 claims. And, further, the parties do not dispute that amounts paid by policyholders to defend on claims not covered by TPCIGA are Class 2 claims. Appellees' argument, then, that defense costs paid by TPCIGA are also Class 2 claims, carries persuasive force given the coherence and consistency that results from a Class 2 classification. Accordingly, we agree with appellees that appellant's defense costs are to be accorded Class 2 priority.

CONCLUSION

In light of our conclusions above, we hold that the district court did not err in granting appellees' motion for summary judgment, because, prior to the 1995 amendment, the phrase "all of the expenses of an insurance guaranty association . . . in handling claims" as set forth in Insurance Code article 21.28, section 8(a)(2)(A)(ii) does not include costs incurred in defending insureds under liability and workers' compensation policies of the estates and that costs incurred by TPCIGA in defending the policies are entitled to Class 2 priority under section 8(a)(2)(B)(ii). Accordingly, we affirm the judgment of the district court.

Jan P. Patterson, Justice

Before Justices Jones, Kidd and Patterson

Affirmed

Filed: February 10, 2000

Do Not Publish

1. Tex. Ins. Code Ann. art. 21.28-C (West Supp. 2000) ("the Guaranty Act"). The purposes of the Act are to (i) provide a mechanism for the payment of covered claims to avoid excessive delay in payment; (ii) avoid financial loss to claimants or policyholders because of the impairment of an insurer; (iii) assist in the detection and prevention of insurer insolvencies; and (iv) provide an association to assess the costs among insurers. See id. § 2.

2. Tex. Ins. Code Ann. art. 21.28 (West Supp. 2000).

3. The liquidation statute has been amended by the legislature since the estates at issue were placed in receivership. The version of the Insurance Code in place on the date rights are fixed is the statute that determines the issues here. All rights are fixed as of the date of receivership. See Tex. Ins. Code Ann. art. 21.28, § 2(c); Durish v. Channelview Bank, 809 S.W.2d 273, 275 (Tex. App.--Austin 1992, writ denied). ECC and ENIC were placed into receivership in 1994; therefore, the liquidation statute as amended by Act of June 17, 1993, 73d Leg., R.S., ch. 685, §§ 8.01-.07, 1993 Tex. Gen. Laws 2559, 2626-30 is the relevant version. As the provisions we rely on have not been substantially altered by subsequent amendments, for convenience we will cite the current version of the liquidation statute unless otherwise indicated.

4. We find deference to an agency's interpretation of a statute particularly appropriate where, as here, the Commissioner is charged with the administration of the liquidation statute and the Guaranty Act and is charged with oversight of TPCIGA itself. See Tex. Ins. Code Ann. art. 21.28, § 2(a) ("It is the intent of the legislature that oversight of the special deputy receivers and guaranty associations shall be conducted by the commissioner.").

at the legislature designed a scheme in which policyholders, as consumers, would receive as much of their expectation of insurance coverage as possible, even in the adverse situation of a receivership. The purpose of the liquidation statute is to "conserve the assets and protect the rights of policyholders and claimants" to accomplish the liquidation or rehabilitation of an insolvent insurer. See Tex. Ins. Code Ann. art. 21.28, § 2(e). We agree with the Commissioner that this goal is best achieved by the classification of defense costs by similarly situated creditors as Class 2 rather than Class 1 claims. ⁽⁴⁾

The parties agree that TPCIGA's payments on indemnities for loss on covered claims of policyholders are Class 2 claims. They further agree that claims by policyholders for amounts not covered by TPCIGA are Class 2 claims. And, further, the parties do not dispute that amounts paid by policyholders to defend on claims not covered by TPCIGA are Class 2 claims. Appellees' argument, then, that defense costs paid by TPCIGA are also Class 2 claims, carries persuasive force given the coherence and consistency that results from a Class 2 classification. Accordingly, we agree with appellees that appellant's defense costs are to be accorded Class 2 priority.

CONCLUSION

In light of our conclusions above, we hold that the district court did not err in granting appellees' motion for summary judgment, because, prior to the 1995 amendment, the phrase "all of the expenses of an insurance guaranty association . . . in handling claims" as set forth in Insurance Code article 21.28, section 8(a)(2)(A)(ii) does not include costs incurred in defending insureds under liability and workers' compensation policies of the estates and that costs incurred by TPCIGA in defending the policies are entitled to Class 2 priority under section 8(a)(2)(B)(ii). Accordingly, we affirm the judgment of the district court.

Jan P. Patterson, Justice

Before Justices Jones, Kidd and Patterson

Affirmed

Filed: February 10, 2000

Do Not Publish

1. Tex. Ins. Code Ann. art. 21.28-C (West Supp. 2000) ("the Guaranty Act"). The purposes of the Act are to (i) provide a mechanism for the payment of covered claims to avoid excessive delay in payment; (ii) avoid financial loss to claimants or policyholders because of the impairment of an insurer; (iii) assist in the detection and prevention of insurer insolvencies; and (iv) provide an association to assess the costs among insurers. See id. § 2.

2. Tex. Ins. Code Ann. art. 21.28 (West Supp. 2000).

3. The liquidation statute has been amended by the legislature since the estates at issue were placed in receivership. The version of the Insurance Code in place on the date rights are fixed is the statute that determines the issues here. All rights are fixed as of the date of receivership. See Tex. Ins. Code Ann. art. 21.28, § 2(c); Durish v. Channelview Bank, 809 S.W.2d 273, 275 (Tex. App.--Austin 1992, writ denied). ECC and ENIC were placed into receivership in 1994; therefore, the liquidation statute as amended by Act of June 17, 1993, 73d Leg., R.S., ch. 685, §§ 8.01-.07, 1993 Tex. Gen. Laws 2559, 2626-30 is the relevant version. As the provisions we rely on have not been substantially altered by subsequent amendments, for convenience we will cite the current version of the liquidation statute unless otherwise indicated.

4. We find deference to an agency's interpretation of a statute particularly appropriate where, as here, the Commissioner is charged with the administration of the liquidation statute and the Guaranty Act and is charged with oversight of TPCIGA itself. See Tex. Ins. Code Ann. art. 21.28, § 2(a) ("It is the intent of the legislature that oversight of the special deputy receivers and guaranty associations shall be conducted by the commissioner.").