Claim of Moriarity

Claim of Moriarity
1995 WY 119
899 P.2d 879
Case Number: 94-145
Decided: 07/26/1995
Supreme Court of Wyoming

FOOTNOTES

1 In the part pertinent to this case, the order stated:

 

    NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the motion of receiver to reject executory contract with William Moriarity be and it is hereby denied.

 

    IT IS FURTHER ORDERED that the motion of William Moriarity to require receiver to complete the terms of buy out of employment contract (specific performance) be and it is hereby granted and the receiver shall deliver to William Moriarity all documents necessary to transfer title to the 1989 Cadillac automobile (with telephone); certain computer equipment; and office space as is described in the motion of William Moriarity.

2 With respect to relief in the alternative, the Receiver stated in the Receiver's Motion to Clarify or Amend Judgment or Order or in the Alternative to Grant Relief from a Judgment or Order Previously Entered  (Motion to Clarify):

 

  In order to insure the proper administration of the estate and to afford maximum financial protection to policyholders and shareholders, it is necessary for this Court to clearly enunciate that Mr. Moriarity does not have an ongoing leasehold interest in Old Faithful' [sic] building through April 1, 1994, and that he has no continuing financial interest in, or monetary claim against, Old Faithful's mortgage portfolio or the servicing of the portfolio.

3 Wyoming Life and Health Insurance Guaranty Association became a party and was interested in the resolution of questionsconcerning the Servicing Agreement because, if the court were to issue an order of liquidation, Old Faithful's annuities and insurance policies would become financial obligations of the Association.

4 WYO. STAT. § 26-28-125 (1991) provides with respect to the distribution of the assets of an insolvent insurer:

 

    (a) The priorities of distribution of general assets from the company's estate is as follows:

 

    (i) The costs and expenses of the administration, insolvency, liquidation and rehabilitation, including the claims handling expenses of the Wyoming Insurance Guaranty Association and of any similar organization in any other state as prescribed in W.S. 26-31-101 through 26-31-117; (ii) Wages actually owing to employees, other than officers of insurers, for services rendered within three (3) months prior to the date of commencement of a proceeding against the insurer under this chapter, but not exceeding one thousand dollars ($1,000.00) to each employee and secured claims, including claims for taxes and debts due the federal or any state or local government which are secured by liens perfected prior to the commencement of delinquency proceedings;

 

(iii) Claims by policyholders, beneficiaries, insureds and liability claims against insureds   covered under insurance policies and insurance contracts issued by the company, as set forth in W.S. 26-28-114 through 26-28-117 and claims of the Wyoming Insurance Guaranty Association and any similar organization in another state as prescribed in W.S. 26-31-110;

 

(iv) All other claims of general creditors not falling within any other priority under this section,   including claims for taxes and debts due the federal government or any state or local government which are not secured claims;

 

    (v) Claims of guarantee association certificate holders, guarantee capital shareholders and surplus note holders;

 

    (vi) Proprietary claims of shareholders, members or other owners.

 

5 The claims process is established by WYO. STAT. § 26-28-116 (1991), which provides:

 

    (a) All claims against an insurer against which delinquency proceedings are in progress shall set forth in reasonable detail the amount of the claim, or the basis upon which the amount can be ascertained, the facts upon which the claim is based and the priorities asserted, if any. All such claims shall be verified by the affidavit of the claimant, or someone authorized to act on his behalf and having knowledge of the facts, and shall be supported by documents material thereto.

     (b) All claims filed in this state shall be filed with the receiver, whether domiciliary or ancillary, in this state, on or before the last date for filing as specified in this chapter.

(c) Within ten (10) days from the date of receipt of any claim, or within any further period as the

  court, for good cause shown, determines, the receiver shall report the claim to the court, specifying in the report his recommendation with respect to the action taken thereon. Upon receipt of the report, the court shall fix a time for hearing the claim and shall direct that the claimant or the receiver, as the court specifies, shall give notice as the court determines to those persons as appear to the court to be interested therein. The notices shall specify the time and place of the hearing and shall concisely state the amount and nature of the claim, the priorities asserted, if any, and the recommendation of the receiver with reference thereto. 

(d) All interested persons may appear at the hearing, and the court shall enter an order allowing, allowing in part or disallowing the claim. The order is appealable.

6  A statement, remark, or observation. Gratis dictum; a gratuitous or voluntary representation;  one which a party is not bound to make. Simplex dictum; a mere assertion; an assertion without proof.

 

    The word is generally used as an abbreviated form of obiter dictum, "a remark by the way;" that is, an observation or remark made by a judge in pronouncing an opinion upon a cause, concerning some rule, principle, or application of law, or the solution of a question suggested by the case at bar, but not necessarily involved in the case or essential to its determination; any statement of the law enunciated by the court merely by way of illustration, argument, analogy, or suggestion.

  Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand are obiter dicta, and lack the force of an adjudication.

 

  BLACK'S LAW DICTIONARY 454 (6th ed. 1990).