Section 11: Exemption from fees and taxes
[ Text of section effective until April 9, 2025. For text effective April 9, 2025, see below.]
Section 11. The Fund shall be exempt from payment of all fees and all taxes levied by the commonwealth or any of its subdivisions except taxes levied on real or personal property.
Chapter 175D: Section 11. Exhaustion of all coverage provided by any other policy; reduction of recovery on policy from amount payable under this chapter; claims recoverable under more than 1 association similar to Fund or its equivalent
[ Text of section as recodified by 2024, 389, Sec. 3 effective April 9, 2025. For text effective until April 9, 2025, see above.]
Section 11. (a) A person having a claim against a member insurer shall be required first to exhaust all coverage provided by any other policy, including the right to a defense under the other policy, if the claim under the other policy arises from the same facts, injury or loss that gave rise to the covered claim against the Fund. The requirement to exhaust shall apply without regard to whether the other insurance policy is a policy written by a member insurer; provided, however, that no person shall be required to exhaust any right under the policy of an insolvent member insurer or any right under a life insurance policy. If the Fund pays a covered claim without the exhaustion of all other coverage that could have been exhausted under this section, the Fund shall have an independent right of recovery against each insurer whose coverage was not exhausted in the amount the Fund would not have had to pay if that insurer's coverage had been exhausted first.
(b)(1) Any amount payable on a covered claim under this chapter shall be reduced by the full applicable limits stated in the other insurance policy, or by the amount of the recovery under the other insurance policy as provided in this section. The Fund shall receive a full credit for the stated limits, unless the claimant demonstrates that the claimant used reasonable efforts to exhaust all coverage and limits applicable under the other insurance policy as required by this section. If the claimant demonstrates that the claimant used reasonable efforts to exhaust all coverage and limits applicable under the other insurance policy, or if there are no applicable stated limits under the policy, the Fund shall receive a full credit for the total recovery. The credit shall be deducted from the lesser of: (i) the Fund's covered claim limit in section 5; (ii) the amount of the judgment or settlement of the claim; or (iii) the policy limits of the policy of the insolvent member insurer; provided, however, that in no case, shall the obligation of the Fund exceed the covered claim limit established in section 5.
(2) Except to the extent that the claimant has a contractual right to claim defense under an insurance policy issued by another insurer, nothing in this section shall relieve the Fund of the duty to defend under the policy issued by the insolvent member insurer; provided, however, that this duty shall be limited by any other limitation on the duty to defend provided in this chapter.
(3) A claim under a policy providing liability coverage to a person who may be jointly and severally liable as a joint tortfeasor with the person covered under the policy of the insolvent member insurer that gives rise to the covered claim shall be considered to be a claim arising from the same facts, injury or loss that gave rise to the covered claim against the Fund.
(c) For purposes of this section, a claim under an insurance policy other than a life insurance policy shall include, but shall not be limited to: (i) a claim against a health maintenance organization, a hospital plan corporation, a professional health service corporation or a disability insurance policy; and (ii) any amount payable by or on behalf of a self-insurer.
(d) The person insured by the insolvent member insurer's policy shall not be pursued by or found liable to a third-party claimant for any amount paid to the third party by which the Fund's obligation is reduced pursuant to this section.
(e) A person having a claim that may be recovered under more than 1 association similar to the Fund or its equivalent shall seek recovery first from the association of the place of residence of the insured; provided, however, that if it is a first-party claim for damage to property with a permanent location, the person shall seek recovery first from the association of the location of the property. If it is a workers' compensation claim, the person shall seek recovery first from the association of the residence of the claimant. Any recovery under this chapter shall be reduced by the amount of recovery from another insurance guaranty association or its equivalent.