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First American Title Insurance Co. v. Robertson

Court of Appeals of Indiana

December 2, 2016

First American Title Insurance Company, Appellant-Petitioner,
v.
Stephen W. Robertson, Insurance Commissioner of the state of Indiana, in his official capacity, on behalf of the Indiana Department of Insurance, Appellee-Respondent.

         Appeal from the Marion Superior Court The Honorable Michael D. Keele, Judge, Trial Court Cause No. 49D07-1105-PL-19374

          Julia Blackwell Gelinas Thomas E. Wheeler, III Maggie L. Smith Indianapolis, Indiana, Julia Blackwell Gelinas Thomas E. Wheeler, III Maggie L. Smith Indianapolis, Indiana, ATTORNEYS FOR APPELLANT

          David 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

          Barnes, Judge.

         Case Summary

         [¶1] 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.

         Issue

         [¶2] 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.

         Facts

         [¶3] In March 2009, the IDOI issued a market conduct examination warrant to FATIC and retained a third party to conduct the examination.[1] 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 or rebuttals:

(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 testimony.

Ind. Code § 27-1-3.1-11(a).

         [¶4] 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.

         [¶5] 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 raised.

         [¶6] 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 ...


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