from the Marion Superior Court The Honorable Michael D.
Keele, Judge, Trial Court Cause No. 49D07-1105-PL-19374
Blackwell Gelinas Thomas E. Wheeler, III Maggie L. Smith
Indianapolis, Indiana, Julia Blackwell Gelinas Thomas E.
Wheeler, III Maggie L. Smith Indianapolis, Indiana, ATTORNEYS
L. Steiner Kyle Hunter Deputies Attorney General
Indianapolis, Indiana, Gregory F. Hahn Bryan H. Babb Bradley
M. Dick Bose McKinney & Evans, LLP Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
First American Title Insurance Company ("FATIC")
appeals the trial court's dismissal of its complaint
against Stephen Robertson, Insurance Commissioner of the
State of Indiana ("Commissioner"), in his official
capacity, on behalf of the Indiana Department of Insurance
("IDOI"). We affirm.
FATIC raises two issues, which we consolidate and restate as
whether the trial court properly dismissed FATIC's Writ
of Prohibition and Action for Mandate, Request for
Declaratory Relief, and Verified Amended Petition for
Judicial Review against IDOI.
In March 2009, the IDOI issued a market conduct examination
warrant to FATIC and retained a third party to conduct the
examination. The third party filed its Verified Market
Conduct Examination Report with the IDOI on September 30,
2010. The IDOI forwarded the report to FATIC on October 18,
2010, and FATIC filed a response on November 10, 2010. Under
Indiana Code Section 27-1-3.1-11(a), the Commissioner was
required to enter an order within thirty days after the end
of the period allowed for the receipt of written submissions
(1) adopting the examination report as filed or with
modification or corrections;
(2) rejecting the examination report with directions to the
examiners to reopen the examination for purposes of obtaining
additional data, documentation or information, and refiling
the report under this chapter; or
(3) calling for an investigatory hearing with no less than
twenty (20) days notice to the company for purposes of
obtaining additional documentation, data, information and
Ind. Code § 27-1-3.1-11(a).
The Commissioner failed to enter an order. On December 20,
2010, the Commissioner requested a retroactive extension of
time, to which FATIC agreed. The Commissioner again failed to
file a timely order and requested another retroactive
extension of time, to which FATIC again agreed. Although the
Commissioner was supposed to file his order by February 4,
2011, he failed to do so. On March 21, 2011, the Commissioner
requested that FATIC agree to another retroactive extension
of time, but FATIC declined.
Despite the failure to issue a timely order, the Commissioner
issued an order on April 15, 2011, appointing an
administrative law judge and ordering that an investigatory
hearing be held. On May 17, 2011, FATIC filed a petition for
judicial review and declaratory relief with the trial court.
In the petition, FATIC sought relief pursuant to the
Administrative Orders and Procedures Act ("AOPA"),
Indiana Code Chapter 4-21.5-1, and the Uniform Declaratory
Judgment Act, Indiana Code Chapter 34-14-1. FATIC argued that
the order was void because it was not timely filed. Rather
than file a complete agency record, FATIC filed only the
documents necessary to address the timeliness issue that was
IDOI filed a motion to dismiss, arguing in part that the
petition should be dismissed because FATIC failed to file the
complete agency record. The trial court rejected that
argument, concluding that FATIC had provided all of the
documents necessary to address the principal issue presented.
Then, in May 2012, the trial court entered finding of fact
and conclusions thereon denying FATIC's petition for
judicial review and declaratory judgment. The trial court
concluded that "FATIC has failed to demonstrate that it
was prejudiced by [IDOI's] failure to act on the ...