American Fidelity Life Insurance Co. v. State ex rel. Holland

2013 OK CIV APP 51, 307 P.3d 389, 2013 WL 3340495, 2013 Okla. Civ. App. LEXIS 40
CourtCourt of Civil Appeals of Oklahoma
DecidedMay 7, 2013
DocketNo. 109,613
StatusPublished

This text of 2013 OK CIV APP 51 (American Fidelity Life Insurance Co. v. State ex rel. Holland) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Fidelity Life Insurance Co. v. State ex rel. Holland, 2013 OK CIV APP 51, 307 P.3d 389, 2013 WL 3340495, 2013 Okla. Civ. App. LEXIS 40 (Okla. Ct. App. 2013).

Opinion

ROBERT D. BELL, Judge.

11 Plaintiff/Appellant, American Fidelity Life Insurance Company, appeals from the trial court's order denying Appellant's administrative appeal of an order of Defendant/Appellee, former Oklahoma Insurance Commissioner Kim Holland (Commissioner).1 [391]*391The Commissioner's order found Appellant violated the Military Sales Practices Regulation, also known as the Military Sales Rule, found at Oklahoma Administrative Code (OAC) 365:25-27-1 et seq. and directed Appellant to correct the violations within thirty days. The order reserved imposition of any civil penalties to a separate proceeding. For the reasons set forth below, we reverse and remand for further proceedings.

T2 The Military Sales Rule was first adopted by the Commissioner in 2007 through the exercise of emergency rule-making procedures. The Rule's stated purpose is "to protect active duty service members of the United States Armed Forces from dishonest and predatory insurance sales practices by declaring certain identified practices to be false, misleading, deceptive or unfair." OAC 365:25-27-1(a). Oklahoma was apparently the first state to adopt such rules at the behest of Congress. The current version of the rule, containing the same language as the emergency version, became permanent effective July 14, 2008.

18 Acting pursuant to its statutory mandate, the Oklahoma Insurance Department examined Appellant in 2008 to determine whether the company's marketing practices complied with the Oklahoma Insurance Code, 36 0.8.2001 § 101 et seq. See 86 0.8.2001 § 1205. The examiner found, in each such case reviewed, Appellant violated the Military Sales Rule in every policy sold to a military service member. Appellant filed an extensive rebuttal to the examiner's findings. Specifically, Appellant detailed it issued retroactive policy amendments to its service member policyholders following the Commissioner's adoption of the Military Sales Rule. The rebuttal also stated, inter alia, Appellant voluntarily changed its internal procedures for crediting interest and charging withdrawal fees, and made refunds to policyholders as appropriate. After reviewing the examination report and the material provided by Appellant, the Commissioner issued a Final Administrative Order adopting the findings of the examiner. The order determined Appellant violated various provisions of the Military Sales Act and 36 O.S. §§ 83610 and 4030.1(A)2 Appellant's request for reconsideration was subsequently denied.

T4 Appellant thereafter sought review of the Commissioner's order in the district court. After a hearing on the merits with briefing and oral argument, the district court denied Appellant's administrative appeal. From said judgment, Appellant now seeks review by this Court.

15 As a preliminary matter, we grant in part and deny in part Commissioner's request to strike the two appendices attached to Appellant's brief in chief. Oklahoma Supreme Court Rule 1.11(i) provides an appendix to a brief shall not be filed except under prescribed cireumstances. The first appendix to Appellant's brief, a draft report of the examiner, does not fall into any exception listed in Rule 1.11). Contrary to Appellant's assertion, the draft report plainly does not constitute "a copy of the decision from which the appeal is taken" as required by Rule 1.11(i)(1). Appellant's appeal is from the Commissioner's Final Administrative Order and not from the examiner's draft report. The first appendix is stricken.

16 The second appendix to Appellant's brief in chief consists of excerpts from the National Association of Insurance Commissioners Examiner's Handbook. As Appellant correctly notes, 86 0.8.2001 § 309.3(A) mandates that examiners observe the guidelines and procedures set forth in the Examiner's Handbook when conducting insurance company examinations. Thus, it appears the see-ond appendix satisfies the requirements of Rule 1.11(0}(8) as a copy of "rules not promulgated in Oklahoma."

17 Appellant initially challenges, for the first time on appeal, procedural aspects of OID's adoption of the Military Sales Rule. Specifically, Appellant asserts the Commissioner failed to follow 75 00.98.2001 § 253(A) of the Administrative Procedures Act in promulgating the emergency rule because no Rule Impact Statement appears in [392]*392the record. This issue was not raised below. "An appellate court will not make first-instance determinations of disputed law or fact issues." Bivins v. State ex rel. Okla. Mem. Hosp., 1996 OK 5, ¶ 19, 917 P.2d 456, 464 (emphasis omitted). Issues not raised below will not be considered for the first time on appeal. Jones v. Alpine Inv., Inc., 1987 OK 113, ¶ 11, 764 P.2d 513, 515.

$8 Appellant next contends Commissioner lacked authority to adopt the Military Sales Rule. The Rule states it was "issued under the authority of the Oklahoma Unfair Trade Practices Act, 86 0.8. § 1201, et seq." OAC 365:25-27-8. Appellant maintains the Unfair Trade Practices Act gave the Commissioner no such authority.

T9 The purpose of the Unfair Trade Practices Act is to regulate trade practices in the insurance industry:

by defining, or providing for the determination of, all such practices in this state which constitute unfair methods of competition or unfair or deceptive acts or practices and by prohibiting the trade practices so defined or determined.

36 0.9$.2001 § 1201. Section 1208 prohibits persons from engaging "in any trade practice which is defined in this article as, or determined pursuant to this article to be" any unfair or deceptive practice in the insurance business. Section 1204 specifically defines various unfair and deceptive acts or practices. Appellant argues § 1204 constitutes the exhaustive list of unfair and deceptive acts or practices in the insurance industry and the Commissioner was without authority to expand that list by adopting the Military Sales Rule. We disagree.

" 10 Section 1209 specifically addresses the Commissioner's power to initiate proceedings against an insurance company for an alleged unfair or deceptive act or practice "which is not defined in Section 1204."3 Title 86 0.8. 2001 § 807.1 empowers the Commissioner to "adopt reasonable rules and regulations for the implementation and administration of the provisions of the Insurance Code." The Oklahoma Insurance Code is defined as "Title 36 of the Oklahoma Statutes." 36 0.8.2001 § 101. Restated, § 307.1 authorizes the Commissioner to adopt rules for the implementation and administration of Title 86, and § 1209 specifically contemplates the existence of unfair or deceptive acts or practices not listed in § 1204. On this basis, we find no statutory impediment to the Commissioner's adoption of the Military Sales Rule as a compliment to $ 1204.

111 Notwithstanding the above, we find that Commissioner utilized the incorrect procedure in prosecuting Appellant in this case. Title 36 0.98.2001 §§ 1206-1208 apply to proceedings brought by the Commissioner against insurers alleged to have engaged in any unfair or deceptive act or practice "defined in Section 1204 of this title, ..."4 Such proceedings include a statement of the charges and notice made by the Commissioner, § 1206(A), a show cause hearing where the accused insurer may be heard, § 1206(B), a cease and desist order issued by the Commissioner, § 1207(A), and judicial review of any such order, § 1208.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bivins v. State Ex Rel. Oklahoma Memorial Hospital
1996 OK 5 (Supreme Court of Oklahoma, 1996)
Jones v. Alpine Investments, Inc.
1987 OK 113 (Supreme Court of Oklahoma, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
2013 OK CIV APP 51, 307 P.3d 389, 2013 WL 3340495, 2013 Okla. Civ. App. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-fidelity-life-insurance-co-v-state-ex-rel-holland-oklacivapp-2013.