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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.