The Indiana Supreme Court agreed to rewrite a footnote that was at least confusing if not in conflict with its opinion in a case reviewing an action of the Department of Insurance.
The court in November ruled against First American Title Insurance Co., finding that its failure to include the agency record in a petition for review will result in dismissal. Thursday, justices in a two-page order reaffirmed the holding but clarified the footnote in First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Ind., in his Official Capacity, on Behalf of the Ind. Dept. of Insurance, 49S04-1311-PL-732
“In a footnote the Court announced, 'We also summarily affirm that portion of the Court of Appeals opinion declaring the Commissioner’s hearing order untimely and void, as well as that portion of the opinion declaring that a petitioner seeking judicial review of an agency decision need not demonstrate a separate showing of prejudice,'” wrote Justice Robert Rucker.
"In his Petition for Rehearing, the Commissioner takes issue with the first clause of the footnote contending, 'the Court’s judgment reversing the trial court for failing to dismiss the First American petition for judicial review appears inconsistent with its summary affirmance of the Court of Appeals concerning the timeliness of the Commissioner’s hearing order and First American’s failure to exhaust administrative remedies.' ... According to the Commissioner, 'there is substantial tension, if not outright conflict, among these statements.' ... We agree and therefore grant rehearing to delete the first clause of footnote three. In all other respects the original opinion is affirmed."