Commonwealth Land Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana

Mar 04 2014, 10:01 am
FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TODD L. PADNOS WADE D. FULFORD
DANIELLE T. KENNEDY Indiana Department of Insurance
Sheppard Mullin Richter & Hampton, LLP Indianapolis, Indiana
San Francisco, California
GREGORY F. HAHN
JAN M. CARROLL BRYAN H. BABB
SEAN P. BURKE KEVIN M. QUINN
Barnes & Thornburg LLP JOEL T. NAGLE
Indianapolis, Indiana Bose McKinney & Evans LLP
Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE
INDIANA LAND TITLE ASSOCIATION, INC: ATTORNEYS FOR AMICUS CURIAE
NATIONAL ASSOCIATION OF
THOMAS E. WHEELER, II INSURANCE COMMISSIONERS:
Frost Brown Todd LLC
Indianapolis, Indiana KARL L. MULVANEY
MARGARET M. CHRISTENSEN
ATTORNEYS FOR AMICUS CURIAE Bingham Greenebaum Doll LLP
THE INDIANA LEGAL FOUNDATION: Indianapolis, Indiana
STEVEN M. BADGER ATTORNEY FOR AMICUS CURIAE
LEAH N. WILSON UNITED POLICYHOLDERS:
Benesch Friedlander Coplan & Aronoff LLP
Indianapolis, Indiana STEPHEN J. PETERS
Harrison & Moberly, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
COMMONWEALTH LAND TITLE )
INSURANCE COMPANY, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A04-1302-PL-84
)
STEPHEN W. ROBERTSON, INSURANCE )
COMMISSIONER OF THE STATE OF )
INDIANA, in his official capacity only and not )
in his individual capacity, on behalf of the )
INDIANA DEPARTMENT OF INSURANCE, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Michael D. Keele, Judge
Cause No. 49D07-1112-PL-48514
March 4, 2014
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary
The Indiana Department of Insurance (“IDOI”) conducted a targeted market
examination of Commonwealth Land Title Insurance Company (“Commonwealth”) to
determine if it was in compliance with the Indiana Insurance Code. Following the
examination, the IDOI issued an order (“the Administrative Order”), concluding that
Commonwealth violated Indiana Code Sections 27-4-1-4(a)(7)(C)(i) (“the Rate Statute”), 27-
1-3-4 (“the Unsafe Business Practices Statute”), and 27-1-18-2 (“the Gross Premium Tax
Statute”), and ordered Commonwealth to take certain actions to cure its violations pursuant
2
to Indiana Code Section 27-1-3.1-11 (“the Cure Statute”). Commonwealth petitioned for
judicial review, and the trial court upheld the Administrative Order with one exception.
Commonwealth appeals the trial court’s order, arguing that the IDOI’s determinations
that it violated the aforementioned statutes are unsupported by substantial evidence and that
the cures the IDOI ordered are not authorized by the Cure Statute. We conclude that
Commonwealth fails to carry its burden to show that the IDOI’s determinations are
unsupported by substantial evidence and that the cures are not authorized by the Cure Statute.
Accordingly, we affirm the trial court’s order.
Facts and Procedural History
Commonwealth is licensed to write title insurance in Indiana and has an
administrative office in Jacksonville, Florida. During all times relevant to this appeal,
Commonwealth marketed title insurance in Indiana solely through independent non-affiliated
agents that sold Commonwealth’s title insurance pursuant to written agency agreements.
On September 11, 2009, the IDOI issued an examination warrant to Commonwealth,
informing it that it would be the subject of a Targeted Market Conduct Examination (“the
Examination”) covering its title insurance transactions occurring in Indiana from January 1,
2005, to January 1, 2010. The stated purpose of the Examination was to determine whether
Commonwealth (1) “permitted excessive charges and/or unfair discrimination in the amount
of premiums charged to Indiana policyholders by their agents,” (2) complied with the Real
Estate Settlement Procedures Act (“RESPA”) involving consumer disclosure requirements on
HUD-1 Settlement Statements (“HUD-1 Statement”), and (3) “accurately reported the
3
premium tax due on title insurance charges to Indiana policyholders for title insurance.”
Appellant’s App. at 331.
By way of background, the HUD-1 Statement is a disclosure form completed by the
agent pursuant to the issuance of a real estate mortgage on which all charges imposed upon
the borrower and seller by the lender are itemized.1 RESPA requires that the title insurance
premium be disclosed on a HUD-1 Statement at mortgage closing. At all times relevant to
this appeal, title insurance agents reported the title insurance premium on line 1108 of the
HUD-1 Statement. Prior to January 1, 2010, the regulations governing the HUD-1 Statement
permitted the amount reported on line 1108 to include costs for settlement services such as
costs of researching the title or conducting the closing in addition to the premium for title
insurance. Commonwealth refers to this undifferentiated amount as a “bundled charge.”
Appellant’s Br. at 9. Indiana is in practice a “risk rate” state, which means that the title
insurance premium does not include the costs for settlement services. Appellant’s App. at
564. The risk rate traditionally includes a commission to the agent that sells the insurance
policy. Id. at 121. That is, the agent receives the premium from the policyholder, keeps a
portion of it as a commission, and remits a portion to the insurer. Id.
The IDOI appointed Bose Government Strategies, LLC (“BGS”), to conduct the
Examination. BGS conducted the Examination pursuant to the standards and procedures
approved by the IDOI and the National Association of Insurance Commissioners (“NAIC”)
1
HUD refers to the United States Housing and Urban Development Agency. The HUD-1 Settlement
Statement is required under section 4 of RESPA and 24 C.F.R part 3500 (Regulation X) of the Department of
Housing and Urban Development regulations.
4
as required by Indiana law.2 The NAIC is the United States standard-setting and regulatory
support organization, created and governed by the chief insurance regulators from all fifty
states, the District of Columbia, and five United States territories. Through the NAIC, state
insurance regulators establish standards and best practices, conduct peer review, and
coordinate regulatory oversight.
The Examination included a review of Commonwealth’s operations and management,
marketing and sales practices, underwriting and reporting practices, and producer licensing
and agency relations. BGS interviewed key personnel and reviewed Commonwealth’s
manuals, bulletins, agency agreements, agent audit program, audit files, HUD-1 Statements,
remittance reports, and sample transaction files. BGS contracted with Aon Global Risk
Consulting (“Aon”) to provide actuarial and statistical analysis.
During the Examination, Commonwealth produced a memo (“the CPT Memo”) that
described its “unique” program for pricing title insurance premiums, which it dubbed the
“Cents Per Thousand” (“CPT”) program. Id. at 473-74. The CPT Memo provided in
relevant part as follows:
[Commonwealth] has implemented a [CPT] program where an agent agrees to
adhere to a special rate chart that sets forth only “remittance rates” which are
to be paid to the underwriter. An agent pays “remittance rate” dollars to the
underwriter based on this chart rather than relying on a more traditional
method of: 1) calculating “premium” for title insurance based on a “premium”
rate chart; 2) calculating and deducting a certain percentage as the agent’s
commission; and 3) remitting the balance to the underwriter. …. Under [the
CPT] program, the underwriter never knows the premium that the agent
charged the customer – the underwriter and agent only agree on a “remittance
rate.” ….
2
Ind. Code § 27-1-3.1-9(a).
5
[Commonwealth] has successfully devised a [CPT] program that … permits
complete discretion and flexibility for an agent to set title insurance rates for
transactions that it insures … and reduces state premium taxes paid by the
underwriter. … [A]gency contracts in Indiana have been drafted to incorporate
the term “remittance rate” as the only amount due to the underwriter. For
purposes of reporting premium however, the agency channel has made a
decision to report Indiana premium as a rate of $1.00 dollar per thousand.
There does not appear to be any connection between [the] “remittance” rate
which is the amount that the agent pays to the underwriter, and the fictional
premium rate of $1.00 dollar per thousand. The $1.00 per thousand
“premium” rate is not referenced in any agency contract, nor is it a reflection
of any fee actually collected or charged for title insurance in Indiana. It does
appear that this fictional $1.00 per thousand is used as a “gross premium” to
report premium to Indiana for the purpose of calculating premium taxes. ….
….
…. [I]f an agent reported only remittance amounts, it might be challenging for
the underwriter to gather the actual premium rates charged on each transaction.
Agents may prefer this program to a more traditional commission program
because the agent has complete flexibility to quote prices to the consumers.
…. [T]he benefit to the consumer under this totally open pricing model may
be difficult to identify. … In today’s heavily scrutinized regulatory
environment, it might be challenging to defend this pricing strategy as
consumer friendly.
Id. The CPT program was implemented by Commonwealth’s Indiana State Agency Manager
and Vice President Bryan Steckler. In December 2008, Fidelity National Financial, Inc.,
acquired Commonwealth and discontinued the CPT program.
BGS interviewed Steckler, who stated that each agent was responsible for determining
the premium charged to consumers. Steckler also stated that “the premium charged to the
consumer during the CPT program was not specifically tied to risk.” Id. at 451. BGS also
interviewed Vice President Eastern Division Manager Robert Wineman, who also advised
that each agent determined the premium charged to the consumer and that Commonwealth
6
did not monitor the premiums charged to ensure that such premiums were fair and proper to
the consumer. Id. at 460.
After learning of the implementation of the CPT program, BGS examined premium
rates for transactions in which Commonwealth simultaneously issued a title insurance policy
to a lender and to an owner. BGS and Aon examined ninety-seven transactions for the years
2005 through 2008 and 110 transactions for 2009. Aon compared “premiums charged on line
1108 of HUD-1” with the remittance amount reported by the independent agent. Id. at 452.
Aon “used information obtained through [BGS’s] review to determine variances between
HUD-1 Premium and the Remit Total Premium and the implied result on underpaid and
overpaid premium taxes for the Exam Period.” Id. at 452. Aon’s analysis showed that the
HUD-1 premium was much higher than the remittance premium during 2005 through 2008.
It also showed that Commonwealth underreported premiums for premium tax purposes for all
years. Based on a comparison between the HUD-1 premium and the remittance premium,
BGS and Aon calculated that Commonwealth underpaid an estimated $62,146 in premium
taxes during the Examination period.
Aon also compared the HUD-1 premium against the premium reporting method under
the CPT program, which also indicated that Commonwealth underreported premiums. This
comparison showed that Commonwealth underpaid an estimated $54,115 in premium taxes
during the Examination period.
During the Examination, Commonwealth produced another memo dated June 28,
2008, from Steckler to Commonwealth’s agents (“the Steckler Memo”) regarding completion
7
of HUD-1 Statements. The Steckler Memo noted that some agents itemized charges for title
searches and other costs on the appropriate lines, whereas others bundled all the charges with
the title premium on line 1108. The Steckler Memo instructed agents that entered a bundled
charge on line 1108 to designate in the parenthetical section directly beneath it the various
line items that were included in the bundled charge line 1108. Id. at 482, 604. The reason
for requiring that the costs included in the bundled charge be identified was to insure that
“we are all completing the HUD in a manner consistent with the way that it was intended to
be filled out.” Id.Almost two years after commencing the Examination, BGS completed a draft market
conduct examination report (“the Draft Report”). The IDOI delivered the Draft Report to
Commonwealth on August 18, 2011, and informed it that it could respond to the Draft Report
by submitting any records, documents, or papers, and by clarifying any business practices that
BGS may have misinterpreted. Id. at 335-416. Commonwealth submitted a response to the
Draft Report, arguing that the findings were erroneous and objecting to the
recommendations, but it did not submit any records, documents, or papers. Id. at 417-26.
On September 22, 2011, BGS submitted a 138-page verified market conduct
examination report (“the Final Report”) to the IDOI, which contained ten sets of findings,
conclusions, and recommendations. BGS attached twelve exhibits, including the CPT
Memo, the Steckler Memo, a total premium report, remittance reports, a HUD-1 Statement,
an agency contract, agency audit program premium rate reviews, Aon’s calculations based on
the HUD-1 Statements and remittance reports, Aon’s calculations based on the HUD-1
8
Statements and the premium calculated as one dollar per one thousand dollars of coverage,
and Aon’s calculations comparing the markup for coverage for lower coverage amounts with
larger coverage amounts. Id. at 427-511. Each finding in the Final Report provided the
applicable statutes, explained the information gathered and the methodology used to analyze
it with references to the relevant exhibits, and provided a conclusion as to whether
Commonwealth violated any laws. Each conclusion was followed by a set of
recommendations for curing the violations.
Commonwealth submitted a response to the Final Report, in which it responded to
each of the ten findings and conclusions. It also attached its response to the Draft Report and
its correspondence with the IDOI and BGS regarding requests for documents. Id. at 512-55.
On November 23, 2011, the IDOI issued the Administrative Order, in which it
incorporated the Final Report and Commonwealth’s response. The Administrative Order
provides in relevant part as follows:
The Cents Per Thousand Program
….
39) Under the CPT program, the underwriter never knows the premium that
the agent charged the customer because both [Commonwealth] and agent have
agreed on a remittance rate rather than a premium rate.
….
41) By instituting the CPT program, [Commonwealth] intentionally created
an environment where agents were not required to report to [it] the premiums
actually charged to consumers, but rather, the agent only remitted a contractual
amount to [it] based upon coverage amounts.
9
42) The CPT program was intended as a way to allow agents to charge
varying premiums to consumers based on factors such as the consumer’s
sophistication, property location, and negotiations, rather than the risk borne by
[Commonwealth] in writing the title insurance.
43) Further, the CPT program was intended to reduce the amount of
premium tax [Commonwealth] paid to the State of Indiana.
….
45) The CPT program does not require any direct correlation between the
risk undertaken by [Commonwealth] and [the] cost of the policy the consumer
pays on a specific piece of property.
46) Under the CPT program, [Commonwealth] assumed the premium
charged to consumers was one dollar per one thousand dollars ($1.00/$1,000)
of coverage.
47) There does not appear to be any connection between the “remittance”
rate and the fictional premium rate of one dollar per one thousand dollars
($1.00/$1,000) of coverage.
Company Audits of Agents
….
52) [Commonwealth] performed regular audits of its contracted agents from
January 1, 2005 through December 31, 2009.
53) When audits of agents revealed that premium rates charged to
consumers differed from the one dollar per one thousand dollars,
[Commonwealth] did not investigate further or amend its premium tax
reporting.
….
Premium Tax Compliance
….
55) Bryan Steckler, Indiana State Agency Manager and creator of the CPT
program advised during an interview that [Commonwealth] determined the net
10
premium but the gross premium charged to the consumer was determined by
the agent. He further stated in a sworn statement that the premium charged the
consumer during the CPT program was not specifically tied to risk.
….
58) Agents must properly report premiums for a company to be in
compliance with relevant statutes, laws and regulations. Through its audits of
agents, [Commonwealth] had access to both remittance reports and HUD-1
settlement statements used in real estate transactions to determine if its agents
were accurately reporting premiums charged.
59) [Commonwealth] was aware of the need to set out matters included in
the amount listed on HUD-1 forms and provided educational material to the
agents on proper completion of these forms [the Steckler Memo] but failed to
ensure compliance with the procedure.
….
61) [Commonwealth] inconsistently tested premiums charged by agents
during its audits of agency operations.
62) [Commonwealth] defines premium in its contracts as the gross amounts
of all fees and charges for title insurance in respect to policies. Indiana law
applies the Gross Premium Privilege tax on the gross amount of all premiums
received by [Commonwealth] on policies of insurance covering risk.
63) [Commonwealth] created a scenario in which [it] did not collect
accurate information from its agents regarding premiums charged to
consumers and therefore could not accurately report premium[s] to the IDOI or
properly submit premium tax as required by Indiana law.
….
72) [Commonwealth] underpaid premium taxes in an amount between
$54,115 and $62,146 for the examination period.
73) Based on [Aon’s] assumption [that] the CPT program was designed to
properly consider [Commonwealth’s] costs for such coverage amounts and
[Aon’s] analysis of the difference between the premium reported on the HUD-
1 and the premium calculated using the CPT program, [Aon] determined [that]
[Commonwealth’s] mark-up on premiums charged to consumers for $0 -
11
$50,000 of coverage was 2.19 times higher than the mark-up in premiums
charged to consumers for the $30,000 - $1,000,000 coverage range.
74) Based on the [Final Report] and workpapers, the Commissioner has
reason to believe that the underpayment of premium taxes occurred in years
other than the examination period stated in the examination warrant.
….
79) Findings of fact and conclusions made pursuant to any examination
shall be prima facie evidence in any legal or regulatory action. Ind. Code § 27-
1-3.1-9(e).
….
CONCLUSIONS OF LAW
81) [Commonwealth] violated [the Rate Statute and the Unsafe Business
Practices Statute] by:
a. Devising, allowing, and promoting an environment wherein it
had no control over premiums charged to consumers for its title
insurance by implementing the CPT program.
b. Permitting the charging of greater premiums per thousand
dollars of coverage to consumers on smaller coverage amounts
than those who purchased policies covering higher amounts[.]
c. Using the CPT program to allow agents to generate a fictitious
premium not based on actuarial analysis at [Commonwealth]
level.
d. Engaging in a practice of entering into agreements where its
agents were permitted to set the final pricing of premiums to the
consumer, resulting in great variance of premiums throughout
the State.
82) [Commonwealth] violated [the Gross Premium Tax Statute] by failing
to accurately determine and pay premium taxes on the gross amount of all
premiums received by it on policies of insurance covering risks within this
state[.]
12
….
ORDER
….
2) In order to cure [Commonwealth’s] violations of Indiana law, it
must take the following actions.
3) [Commonwealth] shall insure compliance with Indiana rules,
laws[,] and statutes through regular audits and incorporate premium charge
analysis as part of its agency audit program.
4) [Commonwealth] shall file premium rates and policy forms with
the IDOI for approval under procedures required of general property and
casualty insurance companies. …. [Commonwealth] shall not use any rates
until the rates have been approved by the IDOI.
5) [Commonwealth] shall provide educational materials to its
agents regarding their duties and responsibilities relating to the use and
charging of premium rates in [its] rate book or manual.
6) [Commonwealth] shall audit the accuracy of HUD-1 and
remittance reports for coverage amounts to ensure proper consumer disclosure.
7) [Commonwealth] shall provide to [the IDOI] details of the
actuarial analysis of premium rates or remittance rates charged to Indiana
consumers during the period of this examination, January 1, 2005 through
December 31, 2009[.]
8) [Commonwealth] shall recalculate its premium tax liability to the
State of Indiana for January 1, 2005 through December 31, 2009, based on
amounts actually charged by its agents rather than amounts reported to it by its
agents, and submit that payment, with appropriate interest and penalties, to the
IDOI[.]
9) [Commonwealth] shall calculate the premium tax due the State
of Indiana back to January 1, 2000 through December 31, 2004, based on
amounts actually charged by its agents rather than amounts reported to it by its
agents, and submit that payment, with appropriate interest and penalties, to the
IDOI[.]
….
13
11) [Commonwealth] shall provide confirmation to the IDOI by
December 23, 2011, that it has discontinued the use of the CPT program.
[Commonwealth] is prohibited from using the CPT program in the future.
12) [Commonwealth] shall incorporate premium charge analysis as
part of its agency audit program.
Id. at 556-73 (citations and footnotes omitted).
Commonwealth filed a petition for judicial review of the Administrative Order and a
memorandum in support thereof. Commonwealth also requested an order staying the
enforcement of the Administrative Order pending final judgment of its petition, which the
trial court granted. The IDOI filed a response and a brief in opposition to Commonwealth’s
petition. Commonwealth filed a reply memorandum in support of its petition.
Following oral argument on Commonwealth’s petition and the parties’ submissions of
findings of fact and conclusions of law, on January 29, 2013, the trial court issued its
findings of fact, conclusions of law, and order (“the Order”), upholding the Administrative
Order except for the portion ordering Commonwealth to recalculate the premium tax due for
the pre-examination period. Specifically, the Order concluded that the IDOI properly
interpreted Indiana’s insurance laws; that substantial evidence established that
Commonwealth violated the Rate Statute, the Unsafe Business Practices Statute, and the
Gross Premium Tax Statute; and that the IDOI ordered appropriate curative measures
(except, as mentioned, the pre-examination tax recalculation requirement). The trial court
also extended its previous order staying enforcement of the Administrative Order until the
parties presented it with a copy of a final non-appealable order. Commonwealth appeals the
trial court’s order. Additional facts will be provided as necessary.
14
Discussion and Decision
Standard of Review
Pursuant to the Administrative Orders and Procedures Act “(AOPA)”, the General
Assembly has granted courts the power to review the actions of state government agencies,
but the power of judicial review is limited. Robertson v. Ticor Title Ins. Co. of Florida, 982
N.E.2d 9, 18 (Ind. Ct. App. 2012), trans. denied (2013). A court may only set aside agency
action that is
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law; (2) contrary to constitutional right, power, privilege, or immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right; (4) without observance of procedure required by law; or (5)
unsupported by substantial evidence.
Ind. Code § 4-21.5-5-14(d). “A decision is arbitrary and capricious when it is made without
any consideration of the facts and lacks any basis that may lead a reasonable person to make
the same decision made by the administrative agency.” Ind. Dep’t of Envtl. Mgmt. v.
Schnippel Constr., Inc., 778 N.E.2d 407, 412 (Ind. Ct. App. 2002), trans. denied (2003).
“The burden of demonstrating the invalidity of agency action is on the party to the judicial
review proceeding asserting invalidity.” Ind. Code § 4-21.5-5-14(a); see also Ind. Dep’t of
Envtl. Mgmt. v. Conard, 614 N.E.2d 916, (Ind. 1993) (“The party challenging the
administrative order bears the burden of showing that there are no substantial facts to support
the agency’s finding.”). “Judicial review of disputed issues of fact must be confined to the
agency record for the agency action[.] The court may not try the cause de novo or substitute
its judgment for that of the agency.” Ind. Code § 4-21.5-5-11.
15
A reviewing court grants deference to the administrative agency’s findings of
fact, but no such deference is accorded to the agency’s conclusions of law.
However, an interpretation of statutes and regulations by the administrative
agency charged with enforcing those statutes and regulations is entitled to
great weight, and the reviewing court should accept the agency’s reasonable
interpretation of such statutes and regulations, unless the agency’s
interpretation would be inconsistent with the law itself. Indeed, when a court
determines that an administrative agency’s interpretation is reasonable, it
should terminate its analysis and not address the reasonableness of the other
party’s interpretation. Terminating the analysis recognizes the general policies
of acknowledging the expertise of agencies empowered to interpret and
enforce statutes and increasing public reliance on agency interpretations.
Ind. Dep’t of Envtl. Mgmt. v. Steel Dynamics, Inc., 894 N.E.2d 271, 274 (Ind. Ct. App. 2008)
(citations, quotation marks, and footnote omitted), trans. denied (2009).
As for our review of the trial court’s order, “to the extent the trial court’s factual
findings were based on a paper record, this Court conducts its own de novo review of the
record. If the trial court holds an evidentiary hearing, this Court defers to the trial court to
the extent its factual findings derive from the hearing.” Equicor Dev., Inc. v. Westfield-
Washington Twp. Plan Comm’n, 758 N.E.2d 34, 37 (Ind. 2001) (citation omitted). Here, the
trial court held a hearing at which the parties presented oral argument in support of their
positions, but it was not an evidentiary hearing. Consequently, we owe no deference to the
16
trial court’s findings of fact.3 We apply de novo review to questions of law, and owe no
deference to the trial court on such inquiries. Kiel Bros. Oil Co. v. Ind. Dep’t of Envtl.
Mgmt., 819 N.E.2d 892, 902 (Ind. Ct. App. 2004), trans. denied (2005).
Section 1- Interpretation of Relevant Statutes
Commonwealth contends that the trial court erred in accepting the IDOI’s
interpretations of the Rate, Unsafe Business Practices, Gross Premium Tax, and Cure
Statutes. We observe that
[a]n interpretation of a statute by an administrative agency charged with the
duty of enforcing the statute is entitled to great weight, unless this
interpretation would be inconsistent with the statute itself. .... Deference to an
agency’s interpretation of a statute becomes a consideration when a statute is
ambiguous and susceptible of more than one reasonable interpretation. When
a court is faced with two reasonable interpretations of a statute, one of which is
supplied by an administrative agency charged with enforcing the statute, the
court should defer to the agency. If a court determines that an agency’s
interpretation is reasonable, it should terminate its analysis and not address the
reasonableness of the other party’s proposed interpretation. Terminating the
analysis recognizes the general policies of acknowledging the expertise of
agencies empowered to interpret and enforce statutes and increasing public
reliance on agency interpretations. However, an agency’s incorrect
3
The parties debate our standard of review. Their debate appears to conflate the proper standard of
appellate review of a trial court’s findings of fact with that of a judicial court’s review of an administrative
agency’s findings of fact. To be clear, although we review the trial court’s findings of fact de novo in this case
because the trial court’s Order is based on a paper record, our review of the IDOI’s findings of fact is subject to
Indiana Code Section 4-21.5-5-14(d), which provides that we may not set aside an administrative order unless
it is unsupported by substantial evidence, and Indiana Code Section 4-21.5-5-11, which provides that we will
not try the cause de novo or substitute our judgment for that of the agency. The cases cited by Commonwealth
that it argues support de novo review of an administrative agency’s findings of fact are inapposite because they
all refer to appellate review of trial court decisions based on a paper record. See Wayne Cnty. Prop. Tax
Assessment Bd. of Appeals v. United Ancient Order of Druids-Grove No. 29, 847 N.E.2d 924, 926 (Ind. 2006);
Equicor, 758 N.E.2d at 37; First Am. Title Ins. Co. v. Robertson, 990 N.E.2d 9, 11-12 (Ind. Ct. App. 2013),
trans. granted. To the extent that Commonwealth argues that it was denied an evidentiary hearing, it does not
assert that it ever requested a hearing. Although the IDOI had the discretion to call for an investigatory
hearing, it was not required to do so. See Ind. Code § 27-1-3.1-11(a) (permitting the commissioner to adopt the
examination report, reject it with directions to reopen the examination to obtain additional information, or call
for an investigatory hearing). Commonwealth does not deny that it was offered an opportunity to provide
rebuttal and/or explanatory evidence in response to both the Draft Report and the Final Report.
17
interpretation of a statute is entitled to no weight. If an agency misconstrues a
statute, there is no reasonable basis for the agency’s ultimate action and the
trial court is required to reverse the agency’s action as being arbitrary and
capricious.
Pierce v. State Dep’t of Corr., 885 N.E.2d 77, 89 (Ind. Ct. App. 2008) (citations and
quotation marks omitted).
The primary goal in statutory construction is to determine, give effect to, and
implement the legislature’s intent. To effectuate legislative intent, we read the
sections of an act together in order that no part is rendered meaningless if it
can be harmonized with the remainder of the statute. [T]he statute or
regulation must be construed as a whole looking to its object and policy.
Words and phrases are taken in their plain, ordinary, and usual meaning unless
a different purpose is manifested by the statute. Further, we presume that the
legislature intended logical application of the language used in the statute, so
as to avoid unjust or absurd results.
Dev. Serv. Alts., Inc. v. Ind. Family & Social Servs. Admin., 915 N.E.2d 169, 181 (Ind. Ct.
App. 2009) (citations and quotation marks omitted), trans. denied (2010). To the extent
that Commonwealth specifically challenges the IDOI’s interpretation of the statutes and
presents its own interpretation, we will address these in the following sections. 4
4
Commonwealth contends that the trial court erred in failing to engage in any analysis of the Rate,
Unsafe Business Practices, and Gross Premium Tax Statutes. Appellant’s Br. at 16. We disagree. The trial
court set forth the appropriate standard of review and found that to the extent that the parties offered differing
interpretations of the statutes, the IDOI’s interpretation of the statutes was reasonable and therefore terminated
its analysis. Appellant’s App. at 25, 26, and 28 (conclusions 9, 10, 14, 20, and 25). Commonwealth claims
that the trial court erred by deferring to the IDOI’s interpretation of the statutes because “[w]hile it is settled
law that an agency’s interpretation of its statutes is entitled to deference, such deference is appropriate only
when the interpretation is found to be consistent with the statute itself.” Appellant’s Br. at 17 (citing Dev.
Serv. Alts., 915 N.E.2d at 181). We fail to see how the trial court could have concluded that the IDOI’s
interpretation of the statutes was reasonable without first applying the rules of statutory construction and
concluding that the IDOI’s interpretation was consistent with the statute.
18
Section 2 - The Rate Statute
Commonwealth argues that the trial court erred in upholding the IDOI’s conclusion
that Commonwealth violated the Rate Statute. The Rate Statute prohibits title insurers from
(7) Making or permitting any of the following:
….
(C) Excessive or inadequate charges for premiums, policy fees,
assessments, or rates, or making or permitting any unfair discrimination
between persons of the same class involving essentially the same
hazards, in the amount of premiums, policy fees, assessments, or rates
charged or made for:
(i) policies or contracts of reinsurance or joint reinsurance, or
abstract and title insurance.
Ind. Code § 27-4-1-4(a)(7)(C)(i).
The trial court concluded that
the administrative record establishes that Commonwealth violated the Rate
Statute when its agents sold Commonwealth’s title insurance policies to
Indiana consumers under the CPT program and charged premiums not based
on actual risk rates but instead based upon the agent’s unfettered discretion in
ascertaining factors such as the consumer’s sophistication, property location,
and negotiations, rather than the risk borne by Commonwealth.
Appellant’s App. at 26.
Commonwealth contends that there is no evidence in the record that it charged an
excessive rate and that the Administrative Order lacks any finding that it charged an
excessive rate. Commonwealth’s argument ignores the Final Report, which included
numerous exhibits, detailed explanations of BGS’s and Aon’s methods of analyzing the data,
19
and the conclusions drawn therefrom.5 The exhibits included the CPT Memo and an agency
agreement, and the findings included information provided during interviews with
Commonwealth representatives. Steckler told BGS that the premiums charged to the
consumer during the CPT program were not specifically tied to risk. Steckler and Wineman
told BGS that the agents determined the premium charged to the consumer, and Wineman
stated that Commonwealth did not monitor the premiums to ensure that they were fair and
proper. The Final Report reached the following relevant conclusions: (a) Commonwealth
“has created a scenario in which [it] does not collect accurate information from its agents
regarding premiums charged to consumers for title insurance coverage, and in which [it] does
not oversee gross premiums charged by agents to consumers;” (b) there were discrepancies
between the policy coverage amounts reported on HUD-1 Statements and the coverage
amounts agents reported on agent remittance reports, so that Commonwealth could not
determine whether an agent properly reported the premium charged to the consumer; (c)
Commonwealth had “allowed and promoted an environment wherein it has no control over
premiums charged to consumers for its title insurance coverage and premiums charged to
similar consumers for similar coverage can vary greatly;” (d) Commonwealth “has engaged
in a practice of entering into agreements with agents wherein agents are permitted to set the
5
Commonwealth does not suggest that the Final Report or the Draft Report were not in compliance
with Indiana Code Section 27-1-3.1-10, which requires that all examination reports be comprised of only:
(1) facts:
(A) appearing upon the books, records, or other documents of the company; and
(B) ascertained from the agents or other persons examined, or as ascertained from the
testimony of its officers or agents or other persons examined concerning the affairs of the
company; and
(2) conclusions and recommendations that the examiners find reasonable warranted from those facts.
20
final pricing of premiums to the consumer, resulting in great variance of premiums
throughout the State;” (e) Commonwealth had a wide range of commission agreements,
premium rate sheets, and remittance sheets and does not monitor the gross premiums charged
to consumers to ensure that the charges comply with relevant laws and regulations; (f)
“[s]uch practices of allowing agents to have different remittance and commission rates
contribute[] to an environment which rewards excessive, unfair and/or discriminatory pricing
with the consumer;” and (g) Commonwealth “permits the charging of greater mark-ups in the
HUD-1 ultimate premiums on lower coverage amounts than on higher coverage amounts.”
Id. at 451, 458, 460-62, 465. The Final Report contains ample evidence.
Commonwealth also argues that there is no evidence that it charged an unfairly
discriminatory rate because the IDOI ignored the “of the same class” element in the Rate
Statute, which, Commonwealth argues, refers to premiums with the same underlying cost
structure. Commonwealth fails to acknowledge that this argument was previously presented
and rejected in Ticor, 982 N.E.2d 9. There, the IDOI conducted a target market examination
of Ticor and ultimately found that it violated the Rate Statute by charging excessive and
unfairly discriminatory premium rates. Ticor appealed, and the trial court vacated the IDOI’s
administrative order, concluding in relevant part that “the Statutory Rate Standard is
primarily a cost-based standard, requiring an analysis of an insurer’s costs as the central
determination regarding whether the premium or rate charged for the insurer’s product is
excessive or unfairly discriminatory.” Id. at 17. The trial court further concluded that the
IDOI’s determination that Ticor charged premiums that were excessive and unfairly
21
discriminatory was improper as a matter of law because the examiner had not done an
analysis of the agents’ underlying costs in issuing such title insurance products. Id. at 17-18.
The IDOI appealed the trial court’s order, arguing that the Rate Statute required title
insurers to charge “comparable insurance premiums to insureds purchasing the same amount
of title insurance.” Id. at 19. The Ticor court concluded that the IDOI’s interpretation of the
Rate Statute was reasonable and that “Ticor violated the Rate Statute by allowing its agents
to charge different premium rates to Indiana consumers that are of the same class and involve
the same risk.” Id. at 23 (citation and quotation marks omitted). The Ticor court reversed
the trial court’s order and reinstated the administrative order.
Commonwealth acknowledges in its reply brief that Ticor construed the Rate Statute,
but asserts that Ticor is irrelevant because in this case the IDOI made no findings that
Commonwealth’s premiums were excessive or unfairly discriminatory.6 In our view, Ticor
directly addressed and rejected Commonwealth’s argument that the underlying cost structure
must be calculated to determine whether premiums were unfairly discriminatory.
Contrary to Commonwealth’s assertion that the Administrative Order lacks findings
that it charged excessive and unfairly discriminatory rates, findings 42, 45, 55, 63, 73, and
conclusion 81(c) and -(d) are relevant to whether Commonwealth permitted excessive and
unfairly discriminatory rates and thereby violated the Rate Statute. We conclude that
Commonwealth has failed to carry its burden to show that the IDOI’s determination that
6
In stark contrast to its argument in this appeal, Commonwealth argued to the trial court that Ticor
was dispositive. At that time, Ticor was favorable to Commonwealth’s position because the trial court had
ruled in favor of Ticor but our appellate opinion had not yet been handed down.
22
Commonwealth violated the Rate Statute is not supported by substantial evidence.
Commonwealth also objects to the measures imposed to cure this violation, which we will
address in Section 5 with its other objections related to the Cure Statute.
Section 3 -The Unsafe Business Practices Statute
Commonwealth challenges the trial court’s decision upholding the IDOI’s conclusion
that Commonwealth violated the Unsafe Business Practices Statute, which provides,
Every insurance company to which this article is applicable:
(1) shall conduct and transact its business in a safe and prudent manner;
(2) shall maintain such company in a safe and solvent condition; and
(3) shall establish and maintain safe and sound methods for the conduct
of such insurance company and its business and prudential affairs.
Ind. Code § 27-1-3-4.
The trial court made the following relevant conclusions:
17. [T]he administrative record establishes that Commonwealth violated
the Unsafe Business Practices Statute by entering into agreements where its
agents were permitted to set the final pricing of premiums to the consumers,
resulting in great variance of premiums throughout the State utilizing a Cents
per Thousand program that generated fictitious premium[s] not based on
actuarial analysis at Commonwealth’s level.
18. Moreover, Commonwealth failed to properly determine insurability
and did not use sound underwriting practices when issuing certain policies, and
also failed to audit its agents, or require them to maintain accurate records, so
that in many instances the examiners had no way of determining what
premiums Commonwealth agents had actually charged Indiana consumers.
19. The IDOI’s determination that Commonwealth violated the Unsafe
Business Practices Statute is consistent with the NAIC standard that “wide
scale application of incorrect rates” are “indicative of inadequate management
oversight.” NAIC, Market Regulation Handbook 346 (2011).
Appellant’s App. at 27 (citations, quotation marks, and brackets omitted).
23
Commonwealth refers to the Unsafe Business Practices Statute as the Insolvency
Statute, and argues that there is no evidence that it “was operating its business in [a] fashion
that jeopardized its solvency.” Appellant’s Br. at 32.7 The underlying unstated assumption
of this argument is that the Unsafe Business Practices Statute applies only to solvency
concerns, but Commonwealth fails to articulate why the statute should be so limited.
Commonwealth’s argument ignores item 3, which requires safe and prudent business
practices and item 4, which requires safe and sound methods for conducting business and
prudential affairs. The NAIC states that “Market regulation is regulatory oversight that
primarily focuses on regulated entities’ compliance with laws and regulations other than
those related to financial solvency. Market regulation complements financial solvency
regulation.” Market Conduct Regulation, http://www.naic.org/cipr_topics/topic_market_
conduct_regulation.htm (last visited Feb. 6, 2014). Accordingly, we do not accept the
assumption that the IDOI was required to make findings that Commonwealth’s business
practices threatened its solvency in order to determine that it violated the statute.
Commonwealth also argues that the trial court improperly relied upon conclusory
statements in the Administrative Order and that there is no evidence in the record to support
7
The IDOI asserts that Commonwealth did not present this argument to the trial court, and therefore it
is waived. In its reply brief, Commonwealth argues that it “asserted below that the Insolvency Statute ‘pertains
to fiscal management and solvency.’” Appellant’s Br. at 18 (citing Appellant’s App. at 134). Whether this
single statement constitutes an argument is questionable, but given our preference for determining issues on the
merits, we will address Commonwealth’s solvency argument.
24
the finding that it violated the Unsafe Business Practices Statute. To the contrary, the
administrative record includes the CPT Memo and other evidence relating to the CPT
program. In addition, the Final Report concluded that “Commonwealth inconsistently tested
premiums charged by agents during its audit of agency operations” and that Commonwealth
“has created a scenario in which [it] does not collect accurate information from its agents
regarding premiums charged to consumers for title insurance coverage, and in which [it] does
not oversee gross premiums charged by agents to consumers.” Appellant’s App. at 448, 451.
Commonwealth argues that it is not required by law to audit its agents. Setting aside the
issue of whether Commonwealth is legally required to audit its agents, the fact is that it did
audit its agents, and it is the manner in which it performed those audits which the IDOI found
to violate the Unsafe Business Practices Statute. The IDOI points out that Commonwealth
does not and cannot deny that its poor record keeping and auditing are not safe and prudent.
We conclude that Commonwealth has failed to carry its burden to show that the IDOI’s
determination that Commonwealth violated the Unsafe Business Practices Statute is not
supported by substantial evidence. We will address Commonwealth’s objections to the
measures imposed to cure this violation in Section 5.
Section 4 - The Gross Premium Tax Statute
Commonwealth claims that the trial court erred in upholding the IDOI’s determination
that it violated the Gross Premium Tax Statute, which provides in relevant part,
Every insurance company not organized under the laws of this state … and
doing business within this state shall, on or before March 1 of each year, report
to the department, under the oath of the president and secretary, the gross
25
amount of all premiums received by it on policies of insurance covering risks
within this state.
Ind. Code § 27-1-18-2. Premium is defined as
money or any other thing of value paid or given in consideration to an insurer,
insurance producer, or solicitor on account of or in connection with a contract
of insurance and shall include as a part but not in limitation of the above,
policy fees, admission fees, membership fees and regular or special
assessments and payments made on account of annuities.
Ind. Code § 27-1-2-3(w).
Commonwealth asserts that there is no evidence in the administrative record that it
received premiums other than the amounts actually remitted to it by its agents as reflected in
the agent remittance reports. Commonwealth’s argument confuses the remittance amount
with “the gross amount of all premiums.” Ind. Code § 27-1-18-2. Commonwealth’s agency
agreements provide that “[a]gent shall be responsible for the collection of the gross amounts
of all fees and charges for title insurance in respect to [of] Policies issued by AGENT
(Hereinafter termed “Premiums”),” and “[u]pon collection of Premiums by Agent,
[Commonwealth] shall be deemed the owner of the entire amount thereof.” Appellant’s App.
at 575 (emphasis added). Thus, pursuant to its own agency agreements, “the gross amount of
all premiums” received by Commonwealth was the gross premiums collected by their agents,
not the remittance amount. As such, the amount in the agency remittance reports is irrelevant
in determining whether Commonwealth paid the correct amount of gross premium tax. We
conclude that Commonwealth has failed to carry its burden to show that the IDOI’s
determination that Commonwealth violated the Gross Premium Tax Statute is not supported
26
by substantial evidence.8 We will address Commonwealth’s objections to the measures
imposed to cure this violation in the following section.
Section 5 - The Cure Statute
Commonwealth contends that the trial court erred in failing to interpret the Cure
Statute or enter any conclusions of law as to the IDOI’s interpretation of such statute. The
Cure Statute provides, “If the examination report reveals that the company is operating in
violation of any law, regulation, or prior order of the commissioner, the commissioner may
order the company to take any action the commissioner considers necessary and appropriate
to cure that violation.”9 Ind. Code § 27-1-3.1-11 (emphases added). The crux of the parties’
debate is whether “any action” authorizes the particular cures ordered by the IDOI.
Section 5.1 - Cures Imposed for Violation of the Rate Statute
First, Commonwealth contends that the trial court erred in concluding that the IDOI
was authorized to require that Commonwealth file its premium rates with the IDOI for
approval. Commonwealth contends that “any action” cannot as a matter of law include the
requirement that it seek rate approval from the IDOI because title insurers are specifically
exempted from such an obligation. According to Commonwealth, Chapter 22 of Article I of
8
Commonwealth also argues that where the agent provided a bundled charge on line 1108 of the
HUD-1 Statement, the IDOI had to make certain assumptions as to which portion of the amount was sales
commission versus settlement charges. Appellant’s Br. at 38. The IDOI asserts that Commonwealth raises this
argument for the first time on appeal, and therefore it is waived. We agree. See GKC Indiana Theatres, Inc. v.
Elk Retail Investors, LLC, 764 N.E.2d 647, 652 (Ind. Ct. App. 2002) (“A party generally waives appellate
review of an issue or argument unless the party raised that issue or argument before the trial court.”).
9
The language follows NAIC’s Model Law on Examinations verbatim. NAIC, Model Laws,
Regulations and Guidelines 390-4 (2012).
27
the Insurance Code (“the Rate Regulation Chapter”) requires property and casualty insurers
to “file with the commissioner every manual of classifications, rules, and rates, every rating
schedule, every rating plan, and every modification of any of the foregoing which it proposes
to use.” Ind. Code § 27-1-22-4(a). However, Commonwealth contends, title insurers are
specifically exempted from the requirement to files their rates with the IDOI for approval
because Indiana Code Section 27-1-22-2(a)(6) specifically provides that the Rate Regulation
Chapter does not apply to title insurers.
Commonwealth’s argument fails to acknowledge that effective July 1, 2013, the
General Assembly amended Section 27-1-22-2(a) to add title insurers to the list of insurers
subject to the Rate Regulation Chapter and deleted subsection (6).10 Pub. Law 80-2013, § 1.
Thus, as of today, title insurers are statutorily required to file rates for approval (the IDOI
refers to this as “file and use”). Commonwealth asserts that this file and use regime does not
equate with the Administrative Order’s imposition of a prior approval regime (referred to as
“file and approve”). However, the General Assembly added Section 27-1-22-28(d), which
provides that for policies issued after June 30, 2014, title insurers will be required to file rates
for approval prior to implementing them. Pub. Law 80-2013, § 2. The IDOI agrees that if
this appeal concludes before June 30, 2014, it will waive the right to require Commonwealth
to obtain prior approval of its rates. Appellee’s Br. at 51 n.10. Accordingly,
10
Indiana Code Section 27-1-22-2(a) now reads, “This chapter applies to … all forms of title
insurance.”
28
Commonwealth’s argument against the requirement that it file its rates for prior approval is
moot.
Commonwealth also argues that the trial court erred in concluding that the IDOI had
the authority to require Commonwealth to perform a retrospective actuarial analysis of its
rates. Commonwealth argues that the Cure Statute does not authorize the IDOI to require it
to perform a retrospective actuarial analysis of its rates because “[n]othing within this
language authorizes the IDOI to require compliance with obligations beyond those contained
within the Insurance Code.” Appellant’s Br. at 26. The IDOI argues that the plain language
of the Cure Statute demonstrates that the General Assembly did not intend to limit the IDOI’s
authority in the manner Commonwealth asserts. We agree with the IDOI.
As previously stated, the Cure Statute provides that “the commissioner may order the
company to take any action the commissioner considers necessary and appropriate to cure
that violation.” Ind. Code § 27-1-3.1-11 (emphases added). The plain, ordinary, and usual
meaning of the word “any” does not even remotely suggest that the actions the IDOI may
order are limited solely to those that are specifically required by statute.11 However, the IDOI
does not contend that its curative power is unlimited. The Cure Statute requires that any
action ordered by the IDOI must be “necessary and appropriate” to cure the violation. We
11
Commonwealth asserts that the Insurance Code provides the IDOI with specific measures it can
order a title insurer to take upon finding a violation, citing Indiana Code Section 27-4-1-6, which provides that
following a hearing under Indiana Code Section 4-21.5-3, the IDOI shall order the insurer to cease and desist
the conduct found to violate the Code and may (1) order the insurer to pay fines and penalties and (2) suspend
or revoke an insurer’s license. Not surprisingly, these severe measures may not be imposed absent a hearing.
Presumably, the Cure Statute provides authority for the IDOI to order less severe actions where a hearing is not
required. If the legislature had intended to limit the IDOI to the measures listed in Section 27-4-1-6 and to
measures already legally required, it would have not have used “any action” in the Cure Statute.
29
conclude that the IDOI’s interpretation of the Cure Statute is reasonable and terminate our
analysis.
Commonwealth next contends that because the CPT program has been discontinued, a
retrospective actuarial analysis of its rates is unnecessary. The IDOI asserts that a
retrospective actuarial analysis is necessary and appropriate to cure Commonwealth’s
violation of the Title Rate Statute because (1) the Examination was based on a mere sampling
of transactions and (2) Commonwealth’s poor auditing hindered an accurate assessment of
the actual rates charged to consumers, and therefore additional violations of the Insurance
Code could have occurred when the CPT program was in effect. We agree with the IDOI.
We conclude that Commonwealth failed to carry its burden to show that the IDOI does not
have authority under the Cure Statute to order it to perform a retrospective actuarial analysis
of its rates.
Section 5.2 - Cures Imposed for Violation of the Unsafe Business Practices Statute
Commonwealth next challenges the IDOI’s requirement that it audit its agents as a
curative measure for its violation of the Unsafe Business Practices Statute. The trial court
concluded as follows:
28. The Commissioner was within his authority to order that
Commonwealth shall ensure compliance with Indiana rules, laws and statutes
through regular audits, including auditing the accuracy of HUD-1 and
remittance reports for coverage amounts to ensure proper consumer disclosure
of amounts charged, and also incorporating a premium charge analysis as part
of its agency audit program. In effect this is nothing more than a directive for
Commonwealth to ensure that its agents properly fill out one of
Commonwealth’s already existing forms, which also requires the “test of
remittances in states like Indiana be based upon the schedule of rates in the
agent’s contract.
30
Appellant’s App. at 29 (emphasis added) (citations omitted).
Commonwealth contends that title insurers are not required to audit independent title
professionals, citing Fidelity National Title Insurance Co. v. Mussman, 930 N.E.2d 1160(Ind. Ct. App. 2010), trans. denied (2011). Commonwealth recognizes that in Mussman, this
Court “held that, while an independent title professional was a title insurer’s agent for
purposes of issuing title insurance policies, it was not the title insurer’s agent for other
purposes, such as providing escrow and closing services.” Appellant’s Br. at 36. Given that
an independent title professional is a title insurer’s agent for purposes of issuing title
insurance and that Commonwealth was ordered only to audit the accuracy of HUD-1
Statements and remittance reports for the amount of title insurance coverage to confirm that
consumers were charged the correct premium according to its schedule of rates,
Commonwealth fails to persuade us that this cure is not necessary and appropriate.
Commonwealth also argues that the IDOI is not authorized to order it to incorporate
premium charge analysis as part of its agency audit program. The trial court concluded, and
Commonwealth does not contest, that the premium charge analysis means nothing more than
that Commonwealth insure that its agents fill out one of its already existing forms.
Commonwealth fails to persuade us that the IDOI does not have authority to order it to audit
its agents utilizing premium charge analysis.
Section 5.3 - Cures Imposed for Violation of the Gross Premium Tax Statute
Lastly, Commonwealth challenges the order to recalculate its premium tax liability for
the Examination period based on amounts actually charged by its agents. Commonwealth
31
asserts that it has already paid the larger estimated amount of premium tax due, and therefore
an audit of every title insurance transaction during the Examination period is excessive and
unnecessary. Commonwealth’s argument ignores the reason that the trial court upheld this
cure. The trial court concluded,
32. Finally, the [IDOI] was within [its] authority to order Commonwealth to
recalculate its premium taxes, paying the appropriate amount (with appropriate
interest and penalties, if applicable for the Examination period. Although
Commonwealth has remitted the disputed amount of allegedly underpaid
premium calculated by the [IDOI], along with interest and penalties, this
payment was based on a sampling of Commonwealth’s files during a market
conduct examination, as opposed to a recalculation of premium taxes
potentially due and owing as a result of every actual transaction.
Appellant’s App. at 30 (citations and quotation marks omitted). The CPT program, by its
own terms, “reduces state premium taxes paid by the underwriter,” and BGS looked only at a
sample of transactions. Id. at 473. Therefore, Commonwealth has failed to carry its burden
to show that it is not necessary or appropriate for it to determine the actual amount of
premium taxes that was due. We conclude that the IDOI was within its authority to order
Commonwealth to recalculate its premium tax liability for the Examination period.
Conclusion
We conclude that substantial evidence supports the IDOI’s determination that
Commonwealth violated the Rate Statute, the Unsafe Business Practices Statute, and the
Gross Premium Tax Statute. We further conclude that the cures imposed by the IDOI for
Commonwealth’s violations of these statutes are authorized by the Cure Statute. Therefore,
we affirm the trial court’s order.
32
Affirmed.
BARNES, J., and PYLE, J., concur.
33