Sieron & Associates, Inc. v. Department of Insurance

JUSTICE GOLDENHERSH and JUSTICE CHAPMAN,

specially concurring:

We reluctantly concur with the decision in this appeal and write the following to explain that reluctance.

Our review of the decision at issue is an administrative review, and accordingly, the scope of our review is limited under the Administrative Review Law (735 ILCS 5/3 — 101 et seq. (West 2004)). In essence, the scope of appellate review under the Administrative Review Law is limited to assessing questions of the manifest weight of the evidence and the adherence to the applicable law, case or statutory.

Given this limited scope of review, we are faced with a situation inherent in the applicable statute that is contradictory and the source of this suit and adverse consequences generally. The legislative intent of the statute is to create the availability of property insurance for individuals who would otherwise be incapable of obtaining insurance in the regular property insurance market. The legislative purpose is “to make basic property insurance increasingly available to the citizens of this State, and to deter the insurance industry from geographically redlining urban areas of this State.” (Emphasis added.) 215 ILCS 5/522 (West 2004).

This court refers to a long history of deeming certain areas as uninsurable, commonly known as redlining. Imbedded in the statute, however, is the provision that the insurer, the FAIR Plan Association, deal only with those properties that meet the standards of the very market from which they were excluded, specifically, “applicants in urban areas whose property is insurable in accordance with reasonable underwriting standards” (215 ILCS 5/525(1) (West 2004)).

The effect of this language is to mandate standards in the regulation and operation of the FAIR Plan that, as a practical matter, prevent the FAIR Plan from achieving the legislative purpose for which it was created. The instant case is an example of this impairment of the legislature’s intent by statutory provisions at odds with each other. Justice McGlynn’s opinion properly notes that the statute, the FAIR Plan’s articles of incorporation, and its plan of operation require adherence to generally accepted underwriting standards. However, the result, contrary to the legislature’s intent noted above, is that the commercially hard to insure remain uninsured and an urban area is de facto redlined.

Courts are not legislatures and judges are not legislators. Given these statutory provisions and the evidence in this appeal, we cannot say that this court’s decision is against the manifest weight of the evidence or contrary to law. The inherent contradiction in this statute, which is self-defeating regarding its legislative intent, is appropriately a matter for the General Assembly and not for this court. We urge the legislature to examine this statute, its applications, and its effects in light of express legislative intent and deal with the inherent contradiction that exists. We are sure that a de facto redlining of an urban area is not the intent with which the statute was passed and the FAIR Plan created.

For the reasons stated above, we specially concur.