FIRST AMERICAN TITLE INSURANCE COMPANY, Appellant and Cross-Appellee (Petitioner below),
STEPHEN W. ROBERTSON, INSURANCE COMMISSIONER OF THE STATE OF INDIANA, IN HIS OFFICIAL CAPACITY, ON BEHALF OF THE INDIANA DEPARTMENT OF INSURANCE, Appellee and Cross-Appellant (Respondent below)
Appeal from the Marion Superior Court No. 7, No. 49D07-1105-PL-019374. The Honorable Michael D. Keele, Judge. On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-1206-PL-326.
ATTORNEYS FOR APPELLANT: Thomas E. Wheeler, Sarah Steele Riordan, Maggie L. Smith, Frost Brown Todd LLC, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor General, David L. Steiner, Deputy Attorney General, Heather Hagan McVeigh, Deputy Attorney General, Indianapolis, Indiana.
ATTORNEYS FOR AMICUS CURIAE INDIANAPOLIS BAR ASSOCIATION APPELLATE PRACTICE SECTION: Stephen J. Peters, Plunkett Cooney, P.C., Indianapolis, Indiana, Josh S. Tatum, Plews Shadley Racher & Braun LLP, Indianapolis, Indiana.
Rucker, Justice. Rush, C.J., and Dickson, David and Massa, JJ., concur.
In another opinion decided today we held that a petitioner seeking judicial review of an agency decision must file the agency record as defined by the Administrative Orders and Procedures Act and that the failure to do so results in dismissal of the petition. See Teaching Our Posterity Success, Inc., v. Ind. Dept. of Educ., 20 N.E.3d 149, No. 49S05-1411-PL-700, (Ind. Nov. 13, 2014). We apply that holding here.
Facts and Procedural History
First American Title Insurance Company is an insurer licensed to do business in the State of Indiana. As such it is subject to the administrative and regulatory authority of the Indiana Department of Insurance through its Commissioner. Under provisions of the Insurance Examination Act--Indiana Code sections 27-1-3.1-1 to 27-1-3.1-18--the Commissioner is authorized to " conduct an examination of every insurer licensed in Indiana . . . once every five (5) years." Ind. Code § 27-1-3.1-8(a)(2). In consequence on March 31, 2009 the Department issued First American a Market Conduct Examination warrant to review its practices relating to premium charges to customers, collections of premiums from its appointed agents, consumer disclosures, and collection and remittance of certain fees. App. at 18. The examination covered the period between January 1,
2005 and December 31, 2008. For such purposes the Commissioner retained the services of a third party examiner who, after conducting its examination, submitted a report to the Department on September 30, 2010. In turn the Commissioner forwarded the report to First American. Thereafter, on December 10, 2010, First American submitted a rebuttal to the report's findings. The Commissioner was then required to take certain action within thirty days, namely: " enter an order" (1) adopting the report with or without modification; (2) rejecting the report and instructing the examiners to obtain more information and refile the report; or (3) calling for an investigatory hearing to obtain more documentation, data, information, and testimony. I.C. § 27-1-3.1-11(a). The Commissioner did not enter an order within thirty days. Instead the Commissioner requested that First American extend the deadline to permit the parties an opportunity to resolve the issues raised in the report. First American agreed to this extension. However the parties were unable to reach a resolution during this period, so the Commissioner requested and First American agreed to further extend the deadline until February 4, 2011. More than six weeks after that deadline passed, the Commissioner requested that First American agree to another extension of time through April 15, 2011. This time First American refused to agree. On April 15, 2011, the Commissioner issued an order ostensibly pursuant to Indiana Code section 27-1-3.1-11(a)(3) calling for a hearing and appointing an administrative law judge. The hearing was set for July 12, 2011.
Before the date of the hearing, First American filed a petition in the Marion Superior Court seeking judicial review of the Commissioner's order, contending the order was void because it was issued beyond the thirty-day time limit set forth in the Insurance Examination Act. In support of its petition First American attached a copy of the order and hearing date along with a letter from the Department addressed to First American's legal counsel, and a letter from First American's legal counsel addressed to the Department. The Commissioner countered with a motion to dismiss the petition on grounds that First American failed to submit the agency record as required by the Administrative Orders and Procedures Act (" AOPA" ). After a hearing the trial court denied the Commissioner's motion to dismiss; and it denied First American's petition for judicial review on grounds that First American was required, but failed, to show that it was prejudiced by the untimely order.
Both parties appealed. First American complained the trial court erred in not declaring the Commissioner's hearing order void in that Commissioner failed to comply with the statutory deadline, and the trial court erred in requiring First American to demonstrate a separate showing of prejudice. On cross-appeal the Commissioner for the first time alleged that First American's petition for judicial review should have been dismissed because First American failed to exhaust its administrative remedies thereby depriving the trial court of jurisdiction. The Commission also ...