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Judges tell trial court to declare commissioner’s order void

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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.”
 

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  1. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  2. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  3. wow is this a bunch of bs! i know the facts!

  4. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  5. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

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