Blue Cross & Blue Shield v. Commissioner of Insurance

400 N.W.2d 638, 155 Mich. App. 723
CourtMichigan Court of Appeals
DecidedSeptember 10, 1986
DocketDocket No. 79222
StatusPublished
Cited by14 cases

This text of 400 N.W.2d 638 (Blue Cross & Blue Shield v. Commissioner of Insurance) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blue Cross & Blue Shield v. Commissioner of Insurance, 400 N.W.2d 638, 155 Mich. App. 723 (Mich. Ct. App. 1986).

Opinion

Per Curiam.

Plaintiffs appeal as of right from a circuit court order denying their motion for leave to appeal from an order of the Commissioner of Insurance and from an order granting defendant’s motion for summary judgment pursuant to GCR 1963, 117.2(1).

F. W. Grotenhuis Underwriters, Inc. is a Michigan corporation licensed to sell insurance in Michigan. In 1983, Grotenhuis entered into a contract [726]*726with Blue Ribbon, Inc., a subsidiary of Blue Cross and Blue Shield of Michigan, to market bcbsm health care benefits in exchange for service fees. In July, 1983, defendant became aware of plaintiffs’ "packaging” arrangement and requested information on the proposal. The information submitted by bcbsm revealed that the campaign to sell the packaged benefits would commence on September 1, 1983. In a letter dated September 9, 1983, defendant stated in part:

Pursuant to the powers vested in me as Commissioner of Insurance by 1939 P.A. 108 being MCLA 550.301 et seq.; MSA 24.591 et seq. and 1939 P.A. 109 being MCLA 550.501 et seq.; MSA 24.621 et seq., I have determined that bcbsm may not legally enter into any agreements or contracts which contain one or more of the above listed objectionable elements.
Therefore, Blue Cross and Blue Shield of Michigan shall cease and desist from entering into any future agreements and/or contracts containing one or more of the above listed objectionable elements.

In a letter dated September 20, 1983, bcbsm stated that it would not cease and desist from entering into packaging agreements until defendant provided "specific legal reference as to why such contracts are not legal under PA 108 and 109 of 1939.” A second letter requesting legal authority was sent to defendant by bcbsm on November 3, 1983.

In the meantime, defendant learned that bcbsm, its subsidiaries and its agents were conducting marketing seminars throughout the state to solicit licensed insurance agents to market the packaged benefits plans. An affidavit submitted on defendant’s behalf states that bcbsm represented at the seminars that defendant’s letter of September 9, [727]*7271983, did not constitute a valid order and did not have to be obeyed and that agents who marketed the package were not in jeopardy of losing their licenses. In response to this information, defendant sent a letter to bcbsm on January 13, 1984, stating:

To the contrary, pursuant to the powers vested in me by 1939 P.A. 108, being MCLA 550.301 et seq.; MSA 24.591 et seq. and 1939 P.A. 109, being MCLA 550.501 et seq.; MSA 24.621 et seq., you were specifically ordered to cease and desist from all activity described in the September 9, 1983 order.
Had you wished to contest that order, your proper vehicle would have been an appeal pursuant to Revised Judicative Act Section 631. It is my intention to take appropriate sanctions against violations of that order pursuant to my authority under P.A. 108 and 109 of 1939 and the Insurance Code of 1956.

On the same day, defendant sent a memorandum to all licensed life and health insurance companies informing them that agents who participated in the bcbsm packaging program could be placing their licenses in jeopardy.

On January 23, 1984, bcbsm filed suit in federal district court, alleging a violation of 42 USC 1983 and seeking to enjoin defendant from interfering with bcbsm’s marketing practices. That lawsuit was dismissed on February 23, 1984, on the ground that bcbsm had failed to state a claim upon which relief may be granted. The federal court held that the due process requirements had been met since there were meaningful post-deprivation remedies available, i.e., an administrative appeal pursuant to MCL 600.631; MSA 27A.631.

On February 27, 1984, plaintiffs commenced the [728]*728instant lawsuit in Kent Circuit Court, alleging a violation of due process under US Const, Am XIV, 42 USC 1983, and Const 1963, art 1, § 17. On February 28, 1984, plaintiffs filed a motion in Wayne Circuit Court for leave to appeal the cease and desist order contained in defendant’s letter of September 9, 1983. The Wayne Circuit Court judge denied leave to appeal on the ground that leave to appeal should be sought in the Kent Circuit Court, since the underlying issues had already been raised in that county.

On March 29, 1984, plaintiffs moved in Kent Circuit Court for leave to appeal defendant’s September 9, 1983, letter to bcbsm and the January 13, 1984, memo to Grotenhuis. Leave to appeal was denied on May 18, 1984, on the ground that bcbsm was guilty of culpable negligence in filing an untimely appeal.

Thereafter, defendant filed a motion for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8). In an opinion dated September 7, 1984, the trial court held that plaintiffs had not been deprived of property without due process of law because there were adequate post-deprivation remedies available to protect plaintiffs’ property interests. An order granting defendant’s motion for summary judgment was entered on November 29, 1984.

On appeal, plaintiffs claim that the court erred in denying their motion to appeal defendant’s cease and desist order and memorandum to licensed agents and in granting defendant’s motion for summary judgment.

Litigants seeking judicial review of decisions by administrative agencies have three potential avenues of relief: review prescribed in the statutes applicable to the particular agency, appeal pursuant to MCL 600.631; MSA 27A.631 which allows [729]*729appeals from such decisions to circuit court, or the method of review provided by the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. Nestell v Bd of Ed of Bridgeport-Spaulding Community Schools, 138 Mich App 401; 360 NW2d 200 (1984).

Both the Insurance Code of 1956, MCL 500.100 et seq.; MSA 24.1100 et seq., and the Nonprofit Health Care Corporation Reform Act, MCL 550.1101 et seq.; MSA 24.660(101) et seq., provide for review of any final order or decision of the Commissioner of Insurance. Both acts provide that the Administrative Procedures Act governs review of a final order or decision of the commissioner made, issued or executed after a hearing. MCL 500.244; MSA 24.1244; MCL 550.1615; MSA 24.660(615). In this case, a hearing was not held prior to the issuance of the order, and, thus, review of the order is not governed by the provisions of either act.

The review of agency orders and decisions under the Administrative Procedures Act is also predicated upon an evidentiary hearing at the administrative level. Since no hearing was held in this case, the Administrative Procedures Act is also inapplicable.

Thus, review of defendant’s order in this case is governed by MCL 600.631; MSA 27A.631, which provides:

An appeal shall lie from any order, decision, or opinion of any state board, commission, or agency, authorized under the laws of this state to promulgate rules from which an appeal or other judicial review has not otherwise been provided for by law, to the circuit court of the county of which the appellant is a resident or to the circuit court of Ingham county, which court shall have and exercise jurisdiction with respect thereto as in nonjury [730]*730cases.

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Cite This Page — Counsel Stack

Bluebook (online)
400 N.W.2d 638, 155 Mich. App. 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blue-cross-blue-shield-v-commissioner-of-insurance-michctapp-1986.