United States v. CNA Financial Corp.

dissenting.

I respectfully dissent.

*208 The case is close, but I am not satisfied that the Alaska Supreme Court would extend the implied insured doctrine to this case. The district court got it right, in my view.

Stewart-Smith Haidinger, Inc. v. Avi-Truck, Inc., 1 upon which the majority relies, is distinguishable because it involved hull insurance, which is casualty insurance, while the case at bar involves liability insurance. In casualty insurance, premiums are ordinarily based on the property rather than its owner, and in the absence of a bad claims history that scares the carrier off, the identity of the owner rarely matters. In liability insurance, on the other hand, premiums and issuance are both highly sensitive to the identity of the insured. Premiums can vary even for such small differences as a teenager going away to college, and carriers sometimes limit issuance to particular classes of insureds. It seems to me too big of a jump to assume that the words of Avi-Truck, spoken in a casualty insurance context, apply without limitation to the liability context.

When the Alaska Supreme Court considered the implied insured doctrine in the context of liability insurance,…

MEMORANDUM *

A.

The United States appeals the district court’s granting of summary judgment to Continental Casualty Company (“Continental”) on the question of Continental’s liability to the United States on an insurance policy taken out by Bristol Bay Area Health Corporation (“Bristol Bay”), pursuant to the Indian Self-Determination and Education Assistance Act of 1975 (“ISDEAA”), 25 U.S.C. § 450 et seq. We partially reverse the district court on the ground that the United States is properly characterized as an implied beneficiary of Bristol Bay’s insurance policy, and is therefore entitled to pursue its claim against Continental.

The United States argues that it must be considered an “implied insured beneficiary” of Bristol’s liability policy with Continental. Under Alaska law, the “implied insurance doctrine” permits an unnamed party to claim rights as an implied beneficiary of an insurance contract “where the risk to the insurer is unchanged, and where the third party is within the class intended to be benefited by the parties .... ” Stewart-Smith Haidinger, Inc. v. Avi-Truck, Inc., 682 P.2d 1108, 1113 (Alaska 1984). The doctrine, as explained by the Alaska Supreme Court, is…