The Indiana Court of Appeals reversed a trial court’s denial of a title insurance company’s verified petition for judicial review and declaratory relief, finding the court erred by requiring a separate showing of prejudice because the Indiana insurance commissioner failed to comply with a mandatory statutory deadline regarding an order setting an investigatory hearing.
In First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, on Behalf of the Indiana Dept. of Insurance,
49A04-1206-PL-326, Stephen W. Robertson, as Indiana insurance commissioner, had a third-party perform a market conduct examination of First American Title Insurance Company. The commissioner and First American were unable to reach a resolution on the issues regarding the report and the commissioner requested two extensions of the statutory 30-day deadline. The insurance company denied the commissioner’s third request for an extension, leading Robertson to issue an order appointing an administrative law judge and set an investigatory hearing on the report.
First American sought judicial review and declaratory relief in Marion Superior Court, saying the commissioner’s failure to act on the report within the statutory timeframe rendered the order void. The trial court denied the commissioner’s motion to dismiss, finding that First American properly filed an agency record, but held under the Administrative Orders and Procedures Act that the court must find that an agency action both fits into one of five categories and that the agency action prejudiced the petitioner in order to set aside the action. Those categories include an action that is in excess of statutory jurisdiction, authority or limitations, or short of statutory right.
The court found First American didn’t meet its burden of proof regarding prejudice.
The Court of Appeals held that Robertson waived his argument that First American failed to exhaust administrative remedies because he raised this issue for the first time on appeal. The judges affirmed the denial of his motion to dismiss on the grounds First American failed to submit an agency record.
“Because the issue was a question of law regarding compliance with a statutory deadline, and there were no disputed facts, the submitted materials were sufficient to allow judicial review of the issue,” Chief Judge Margret Robb wrote. “Moreover, most of the materials typically included in an agency record do not exist in this case because no evidentiary hearing was conducted.”
The judges also held that the commissioner does not have flexibility under statute as to when to respond to the third-party report and that the “shall” in I.C. 27-1-3.1-11 is mandatory. When the mandatory statutory deadline passed, the commissioner no longer had the authority to issue an order with regard to the report, rendering his order void, Robb wrote.
“… by failing to comply with a mandatory statutory deadline, the Commissioner acted without observance of procedure required by law and in excess of its statutory authority,” she continued. “No Indiana caselaw requires proving anything beyond establishing that the agency action at issue falls into one of the five enumerated categories set forth in Indiana Code section 4-21.5-5-14(d) in order to obtain relief. Thus, we find that First American satisfied its burden of proof and was entitled to relief.”