Boyd v. Goodman-Gable-Gould

• Court: Court of Special Appeals of Maryland
• Decided: May 27, 2021
• Docket: 2139/19
• Status: Published

Opinion

David Boyd, et ux. v. The Goodman-Gable-Gould Company, No. 2139, September Term 2019. Opinion by Eyler, James R., J.

Administrative Law-Collateral Estoppel

Facts: In 2016, a fire destroyed the home of David Boyd and Penny Coco-Boyd (collectively “the Boyds”), appellants. They gave notice of their loss to State Farm Fire and Casualty Company (“State Farm”), their homeowners’ insurer. They later engaged a public adjuster, The Goodman-Gable-Gould Co., d/b/a Goodman-Gable-Gould Co./Adjusters International (“GGG”), appellee, to adjust their claim with State Farm in exchange for a fee of six percent of any proceeds collected on their behalf.

Unsatisfied with GGG’s services, the Boyds filed a complaint with the Maryland Insurance Administration (“MIA”), alleging that GGG, through its agents, engaged in fraudulent and dishonest practices, displayed incompetence, and wrongfully withheld monies from them. The Boyds sought over $100,000 in restitution and the return of insurance proceeds they alleged were being withheld by GGG. They also asked the MIA to impose administrative penalties on GGG.

While that complaint remained pending, the Boyds filed in the Circuit Court for Montgomery County against GGG a complaint for declaratory judgment, the instant action, seeking a declaration that they had a legal right to terminate their contract with GGG. After the MIA completed its investigation of the administrative complaint and issued a preliminary decision in GGG’s favor, the Boyds did not request an administrative hearing to contest that determination. They filed an amended complaint in the circuit court action adding claims for breach of contract, restitution, negligence, and fraud, and seeking compensatory and punitive damages.

GGG moved for summary judgment on the ground that the Boyds were collaterally estopped by the MIA decision from pursuing any relief and moved to strike the amended complaint. Following a hearing, the circuit court granted GGG’s motions for summary judgment and to strike, concluding respectively that the Boyds were collaterally estopped by the MIA decision and that GGG suffered actual prejudice occasioned by the timing of the amendments to the complaint. The Boyds’ motions for reconsideration and to alter or amend were denied.

The issues on appeal were whether the court erred in granting summary judgment and erred in striking the amended complaint.

Held: The MIA action initiated by the Boyds was a complaint, not an “examination” within the meaning of the Insurance Article and implementing regulations, but the MIA decision was not a quasi-judicial proceeding, and thus, the Boyds were not collaterally estopped by the decision. Moreover, the Boyds were not required to exhaust administrative remedies before pursuing relief in the circuit court because the relevant factors weighed in favor of concurrent jurisdiction.

Thus, the circuit court erred in granting summary judgment. Because the circuit court struck the amended complaint on the ground of collateral estoppel, the court also erred in that ruling. Circuit Court for Montgomery County Case No. 444997V

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2139

September Term, 2019

______________________________________

DAVID BOYD, ET UX.

v.

THE GOODMAN-GABLE-GOULD COMPANY D/B/A GOODMAN-GABLE- GOULD/ADJUSTERS INTERNATIONAL ______________________________________

Fader, C.J. Beachley, Eyler, James R. (Senior Judge, Specially Assigned),

JJ. ______________________________________

Opinion by Eyler, James R., J. ______________________________________

Filed: May 27, 2021

Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2021-05-27 10:54-04:00

Suzanne C. Johnson, Clerk In 2016, a fire destroyed the home of David Boyd and Penny Coco-Boyd

(collectively “the Boyds”), appellants. They gave notice of their loss to State Farm Fire

and Casualty Company (“State Farm”), their homeowners’ insurer. They later engaged a

public adjuster, The Goodman-Gable-Gould Co., d/b/a Goodman-Gable-Gould

Co./Adjusters International (“GGG”), appellee, to adjust their claim with State Farm in

exchange for a fee of six percent of any proceeds collected on their behalf.

Unsatisfied with GGG’s services, the Boyds ultimately filed a complaint with the

Maryland Insurance Administration (“MIA”), alleging that GGG, through its agents,

engaged in fraudulent and dishonest practices, displayed incompetence, and wrongfully

withheld monies from them. The Boyds sought over $100,000 in restitution and the

return of insurance proceeds they alleged were being withheld by GGG. They also asked

the MIA to impose administrative penalties on GGG.

While that complaint remained pending, the Boyds filed in the Circuit Court for

Montgomery County against GGG and State Farm,1 a complaint for declaratory

judgment, the instant action, seeking a declaration that they had a legal right to terminate

their contract with GGG. After the MIA completed its investigation of the administrative

complaint and issued a preliminary decision in GGG’s favor, the Boyds did not request

an administrative hearing to contest that determination. They filed an amended complaint

in the circuit court action adding claims for breach of contract, restitution, negligence,

and fraud, and seeking compensatory and punitive damages.

1 The Boyds voluntarily dismissed their claim against State Farm on March 29, 2019. GGG moved for summary judgment on the ground that the Boyds were

collaterally estopped by the MIA decision from pursuing any relief and moved to strike

the amended complaint. Following a hearing, the circuit court granted GGG’s motions for

summary judgment and to strike, concluding respectively that the Boyds were collaterally

estopped by the MIA decision and that GGG suffered actual prejudice occasioned by the

timing of the amendments to the complaint. The Boyds’ motions for reconsideration and

to alter or amend were denied.

On appeal, the Boyds present six questions,2 which we have condensed and

rephrased as two:

I. Did the trial court err by granting summary judgment in favor of GGG on the ground of collateral estoppel?

II. Did the trial court err or abuse its discretion by granting GGG’s motion to strike the amended complaint?

2 The questions as posed by the Boyds are:

1. Did the trial court misapply provisions of the Insurance Article concerning a request for an administrative hearing pertaining to a proposed examination report of a Maryland Insurance Administration investigation of a public adjuster to the Boyds? 2. Did the trial court commit reversible error in granting GGG’s motion for summary judgment based on collateral estoppel? 3. Did the trial court deprive the Boyds of procedural due process by denying them an adjudication? 4. Did the trial court commit reversible error by striking the Amended Complaint? 5. Did the trial court commit reversible error by denying the Motion to Alter or Amend Judgment? 6. Did the trial court commit reversible error by denying the Motion for Reconsideration of the Order granting GGG’s Motion to Strike?

-2- For the following reasons, we reverse the grant of summary judgment in favor of

GGG and remand for further proceedings not inconsistent with this opinion.

FACTS AND PROCEEDINGS3

A. Background

The Boyds’ property, located at 14001 Gorky Drive in Potomac, was insured by

State Farm under a homeowners policy. As pertinent, under “Coverage A – Dwelling,”

the policy provided replacement coverage for the dwelling up to $945,758 and under

“Coverage A – Dwelling Extension” additional coverage up to $94,576 for “other

structures on the residence premises, separated from the dwelling by clear space” and not

attached to the dwelling, except by a “fence, utility line, or similar connection[.]”

On June 13, 2016, the dwelling on the Property was destroyed by a fire. An

adjacent or adjoining deck constructed of Brazilian Ipé Walnut hardwood valued at

$112,344 was damaged by the fire, but the Boyds believed much of the wood could be

salvaged. A gazebo, driveway, and landscaping on the Property also sustained damage in

the fire. The Boyds’ State Farm insurance agent, Amy James, advised them that the

property was a “total loss” and would exceed their policy limits.

On July 13, 2016, the Boyds contracted with GGG for it to adjust their claim with

State Farm. The terms of the one-page contract were that GGG would assist the Boyds in

their effort to recover for the loss to their dwelling and personal property “for a fee of six

3 Because the Boyds appeal from a summary judgment, we present the underlying facts in the light most favorable to them. We note, however, that GGG disputes many of these allegations.

-3- percent (6%) of the gross amount adjusted or otherwise recovered as a result of said

claim or claims” and assist the Boyds to recover additional living expenses (“ALE”)

without any fee. The Boyds assigned to GGG the right to proceeds paid by State Farm up

to the amount of the six percent fee. With some exceptions, GGG would bear the cost of

estimates and any expert opinions necessary to support the Boyds’ claim. Zachary

Forrest, a GGG senior vice president, met with the Boyds to discuss their claim. He

expressed the view that the deck, along with a gazebo that sustained fire damage, should

be demolished and rebuilt. He advised the Boyds that they could obtain additional

coverage to replace the deck and gazebo under the Dwelling Extension coverage,

maximizing their coverage under the policy.

In January 2017, Forrest transmitted to State Farm the Boyds’ estimates for their

losses, which were prepared by a building consultant retained by GGG. The estimates

exceeded the Boyds’ policy limits.

On March 17, 2017, before State Farm had responded to the estimates, demolition

commenced at the Property. On or about March 18, 2017, the Boyds’ contractors

demolished the deck. Ultimately, State Farm paid the Boyds their policy limits under

Coverage A – Dwelling, but only paid about one quarter of the Dwelling Extension

Coverage limits because it did not deem the deck to be an “other structure.” As James

explained in a March 29, 2017 letter to Forrest: “the decks on the home are not

considered covered under the dwelling extension coverage and are considered part of the

main structure. The dwelling extension portion of the estimate includes the walkway,

driveway and fence.” In the months that followed that letter, Forrest, in consultation with

-4- the Boyds, followed up with James to clarify State Farm’s position relative to the deck.

In June 2017, State Farm denied coverage for the deck as a dwelling extension because it

concluded that the deck was permanently attached to the dwelling and was not separated

from the dwelling by a clear space.

By January 2018, the Boyds had retained counsel, who sent a demand letter to

GGG and gave notice of the Boyds’ intent to terminate their contract.

B. The MIA complaint

On March 13, 2018, the Boyds, through counsel, filed a “Property & Casualty

Complaint[]” with the MIA. On the complaint form, they designated GGG as the public

adjuster against whom they were registering their complaint and Forrest as their agent. In

the section provided for “BRIEF DETAILS OF YOUR COMPLAINT,” the Boyds cross-

referenced an attached 11-page “COMPLAINT” with 18 exhibits. The complaint detailed

the Boyds’ history with GGG and Forrest; the unsuccessful claim for replacement of the

deck under the “Dwelling Extension” coverage; GGG’s retention of insurance proceeds

from State Farm; and other issues pertaining to GGG’s handling of their claim. The

Boyds alleged that GGG had violated section 10-410(a)(3), (4), (5) and (9) of the

Insurance (“Ins.”) Article,4 authorizing the Insurance Commissioner (“Commissioner”) to

suspend or revoke a public adjuster’s license if it violated the Insurance Article, engaged

in fraud or dishonesty, demonstrated incompetency or untrustworthiness, or failed to pay

money due on demand. The relief sought by the Boyds included $112,344 in restitution

4 All references to the Insurance Article are to the 2017 Replacement Volume, unless otherwise indicated.

-5- for the loss of their deck; “compensation for loss of Replacement Cost reimbursement for

their personal property”; ALE they expected to incur; “additional landscaping

reimbursement”; and storage fees they had incurred. They also asked the MIA to impose

fines on GGG for each violation of the Insurance Article and to issue an order directing

GGG to release the funds withheld from them.

On April 4, 2018, Andrew Beatty, an MIA “Insurance Investigator,” wrote to

GGG to inform it that it was the subject of a complaint filed by Ms. Boyd and attaching a

copy of the complaint. Beatty directed GGG to provide him with a “complete copy of

[its] claim file/log, including copies of all correspondence”; copies of photographs and

estimates; a “list of all payments received from the insurer, and all disbursements made

on the claim”; and to specifically respond to the Boyds’ complaints concerning the deck

damage claim, the personal property and landscaping claims, the ALE and storage

claims, and the claim that GGG had not released $72,048 in proceeds to them. Beatty

advised that he would review GGG’s response pursuant to Ins. §§ 27-303 and 27-304 and

COMAR 31.15.07.03.5

On May 1, 2018, GGG responded to the Boyds’ complaint.

5 Title 27 of the Insurance Article governs “Unfair Trade Practices and Other Prohibited Practices” and Subtitle 3 of that Title pertains to “Unfair Claim Settlement Practices” by insurers. See Ins. §§ 27-303 & 27-304 (prohibiting an “insurer, nonprofit health service plan, or health maintenance organization” from engaging in certain practices). COMAR 31.15.07.03 likewise pertains to unfair claim settlement practices by insurers. See COMAR 31.15.07.03A (“a prohibited unfair claim settlement practice occurs if an insurer commits” certain acts).

-6- Sometime after June 7, 2018, the Boyds supplemented their complaint with the

MIA by submitting a 28-page “Deck Claim Analysis.”

On October 6, 2018, the Boyds, through counsel, wrote to Beatty to determine

when he expected to complete his investigation and issue a decision “pursuant to

COMAR 31.16.10.04.”6 The Boyds emphasized that simultaneously with the MIA

Action, they were pursuing declaratory relief in the circuit court to terminate their

contract with GGG and avoid any obligation to pay future commissions. By letter dated

October 6, 2018, counsel for the Boyds sent a letter to the MIA investigator stating that

“any ensuing hearing before the Office of Administrative Hearings will produce a ruling

which could be considered binding on the Parties, it would make sense to conclude the

administrative process before litigating in Circuit Court.”

A little over three weeks later, in an eight-page single-spaced letter, Beatty advised

the Boyds’ counsel that the MIA had “completed the review of the issues raised in [their]

complaint, . . . [GGG’s] response . . ., the documents contained in [GGG’s] file, and the

documents contained in State Farm[’s] . . . claim file” and had “determined that GGG’s

actions [were] not in violation of Maryland insurance law.” The letter addressed each of

the Boyds’ complaints relative to the deck claim, the landscaping claim, the contents

6 This regulation falls under the “Miscellaneous” Subtitle of the MIA regulations applicable to “carriers that issue or deliver insurance policies or health maintenance organization contracts in Maryland.” COMAR 31.16.10.01. The specific regulation cited by the Boyds pertains to a determination following a complaint investigation. It requires the Commissioner, or his or her designee, to “document the findings of the complaint investigation in a determination letter” and provide those findings to “to the complainant and the carrier that was the subject of the complaint[.]” COMAR 31.16.10.04.

-7- claim, and the ALE claim. Beatty explained that the MIA’s review of “the propriety of

GGG’s handling of the claim” was circumscribed by Ins. § 10-410, which specifies the

grounds for discipline of a public adjuster. Beatty focused upon four subsections that

authorize the MIA to discipline a public adjuster who violates the Insurance Article;

engages in fraudulent or dishonest practices; demonstrates incompetency or

untrustworthiness; or misappropriates, converts, or unlawfully withholds money that

belongs to an insured. Ins. § 10-410(a)(1), (3), (4) & (5). Beatty reasoned that though the

Boyds were “not . . . satisfied with GGG’s handling of their claim, GGG’s actions ha[d]

not demonstrated a lack of trustworthiness or competence or otherwise been shown to be

in violation of the Insurance Article.” Beatty closed by advising the Boyds’ attorney:

This determination is subject to your clients’ right to a hearing pursuant to the Annotated Code of Maryland, Insurance Article, Section 2-210[7] and the Code of Maryland Regulations (“COMAR”) 31.02.01.[8] To request a hearing you must do so in writing and the request must be received by the Insurance Administration within thirty (30) days of the date of this letter. Such a request shall specify the grounds to be relied upon as a basis for the relief to be demanded at a hearing. Attached please find a copy of the COMAR Regulation that addresses your right to a hearing. If a hearing is not timely requested, this determination will be final.

7 Ins. § 2-210 governs hearings before the Insurance Commissioner or his or her designee, and provides, as pertinent, that the Commissioner “shall hold a hearing . . . on written demand by a person aggrieved by any act of, threatened act of, or failure to act by the Commissioner or by any report, regulation, or order of the Commissioner[.]” Ins. § 2- 210(a)(2). Hearings are to be conducted in accordance with the contested case provisions of the Administrative Procedure Act. Ins. § 2-210(c). 8 COMAR 31.02.01 governs contested case hearings held before the Commissioner or his or her designee, and contested case hearings delegated to the Office of Administrative Hearings.

-8- A copy of COMAR 31.02.01.03,9 an MIA “Hearing Request Form,” and a “Consumer

Questionnaire” were attached to the letter. The hearing request form was prefilled with

the Boyds’ attorney’s name; their case number; and their attorney’s address. It had blanks

for the Boyds to complete explaining how they were aggrieved, the facts of their case,

and what relief they were requesting from the MIA.

The Boyds did not request a hearing.

C. The Circuit Court Proceedings

Meanwhile, on March 29, 2018, just two weeks after the Boyds filed their MIA

complaint, they filed a “Complaint for Declaratory Judgment” in the circuit court against

GGG and State Farm. They sought a declaration that GGG was “contractually obliged to

endorse settlement drafts issued by State Farm” for personal property losses and

landscaping damage, in exchange for the Boyds’ payment of the 6 percent commission on

those amounts; that the Boyds had a “lawful basis” to terminate the contract with GGG;

that the termination did not require GGG’s written consent; that State Farm must

acknowledge the termination of the contract; and that all future insurance payments must

be made directly to the Boyds.

Because the Boyds sought only declaratory relief, the matter was designated

“Track 0” in the circuit court’s differentiated case management plan. Consequently, no

scheduling order was issued, and it was set for trial on December 12, 2018.

9 COMAR 31.02.01.03 pertains to all requests for hearings “except a request for a hearing on a proposed examination report.”

-9- About a week after the letter decision in the MIA Action, GGG filed an amended

answer in which it asserted collateral estoppel, “claim and issue preclusion,” and failure

to exhaust administrative remedies as affirmative defenses. GGG maintained that the

matter must be “stayed or dismissed” as a result of the MIA Case. It attached Beatty’s

letter and the MIA Complaint, with exhibits, to its amended answer.

GGG subsequently moved to stay or dismiss the circuit court case based upon

Beatty’s letter. It argued that the final adjudication in the administrative proceeding

would be binding upon the parties and, thus, the circuit court case should be stayed until

the MIA Action was finally decided. It further maintained that the administrative remedy

was “primary” and, consequently, that the Boyds were obligated to exhaust that remedy

before resorting to the circuit court.

The Boyds also moved to stay the circuit court action. They asserted that they

would be requesting a hearing in the MIA Action before the Office of Administrative

Hearings (“OAH”) pursuant to Ins. § 2-210 and COMAR 31.02.01 and that because the

hearing would be scheduled after the trial in the circuit court action, a stay was

appropriate to permit the administrative proceeding to conclude prior to the trial in the

circuit court. The Boyds asked the court not to stay discovery, however.

Both motions to stay were denied.

-10- On November 26, 2018, the circuit court postponed the trial date until April 17,

2019.10

Over three months before trial, on January 7, 2019, the Boyds filed an amended

complaint. They added 108 general factual allegations and four new counts. In Count I,

they asserted that GGG breached its contract by failing to exercise reasonable diligence

and due care in adjusting the Boyds’ claim with State Farm and sought $417,504.37 in

damages.11 Count II requested the same declaratory relief as in the original complaint.

Count III asserted a claim for restitution of the commission payments made to GGG,

totaling $60,150.21, on the ground that there was no consideration supporting the

contract given that State Farm already had agreed to pay the Boyds’ policy limits under

Coverage A. Count IV asserted a claim for negligence, premised upon statutory duties set

forth in Ins. § 10-410(a), seeking the same damages as for breach of contract. Count V

asserted a claim for fraud, alleging that Forrest, as agent for GGG, made willfully false

representations to the Boyds relative to the potential coverage for the damaged deck and

10 The trial date was continued on a motion filed by GGG on November 1, 2018, due to a scheduling conflict for its counsel. 11 That amount comprised six categories of damages: 1) $112,344 for the value of the deck; 2) $3,771.09 for the six percent fee paid on an allegedly “inflated demolition estimate”; 3) $48,651.58 representing the difference between the amount charged by GGG’s sister company for demolition and the actual cost of demolition; 4) $6,106.10 representing the difference between the amount charged for debris removal and the amount covered under the Boyds’ Policy; 5) $57,480 for four months of lease payments for alternative housing and moving expenses; and 6) $189,151.60 for loss of “Option ID Inflation Coverage” occasioned by GGG’s delays.

-11- the cost of demolition. The Boyds sought $106,237.78 in compensatory damages and

$300,000 in punitive damages under that count.

On January 23, 2019, GGG moved to strike the amendments to the complaint and

for summary judgment. In its motion to strike, GGG asserted that it was prejudiced by the

late amendments because there was insufficient time before trial to complete discovery

on the new claims and because the Boyds now sought more than half a million dollars in

damages, whereas the original complaint sought only declaratory relief. Further, because

the Boyds had elected not to appeal from the letter determination issued by Beatty, GGG

maintained that that decision was final and binding upon them, precluding the relitigation

of the same claims asserted in the MIA Action.

In its motion for summary judgment,12 GGG asserted that all the facts alleged in

the amended complaint were substantively identical to those alleged in the MIA

complaint and that the MIA finally determined that GGG had not violated the Insurance

Article by its handling of the Boyds’ claim. Citing Garrity v. Maryland State Board of

Plumbing, 447 Md. 359 (2016), GGG argued that the Boyds were collaterally estopped

from pursuing any of their claims in the circuit court.

The Boyds opposed the motions.

The court held a hearing on the motions on April 8, 2019 and ruled from the

bench, granting both motions. The court reasoned that though the Boyds had not been

12 GGG subsequently filed a second motion for summary judgment addressed to the merits of each claim in the amended complaint. As we shall discuss, however, the circuit court granted summary judgment solely on the ground of collateral estoppel.

-12- afforded a full administrative hearing before the MIA, because it was their choice not to

request a hearing, they had been afforded “every opportunity to pursue their claims”

administratively and were estopped from doing so in the circuit court. On the motion to

strike, the court ruled that because “no new facts [were] developed in the amended

complaint” and the Boyds waited until just 3 months before trial to add four counts and

damages claims, GGG was prejudiced by the Boyds’ late amendments. The court entered

an order to that effect on April 10, 2019.

Within ten days, the Boyds moved for reconsideration of the grant of the motion to

strike and to alter or amend the judgment.

The court held a hearing on the post-judgment motions and denied them. It

amplified its earlier reasoning, emphasizing that Beatty made factual findings in his letter

and that the Boyds were bound by those findings in light of their decision not to request

an administrative hearing. It further reiterated its ruling that GGG was prejudiced by the

Boyds’ undue delay in amending their complaint. This timely appeal followed.

We shall include additional facts as necessary to our resolution of the issues.

DISCUSSION

I.

Motion for Summary Judgment

Pursuant to Maryland Rule 2-501, a trial court may grant summary judgment when

there is no genuine dispute of material fact and a party is entitled to judgment as a matter

of law. “Whether a circuit court’s grant of summary judgment is proper in a particular

case is a question of law, subject to a non-deferential review on appeal.” Tyler v. City of

-13- College Park, 415 Md. 475, 498 (2010) (citations omitted). Thus, in assessing the

propriety of the grant of summary judgment, we consider whether “the trial court’s legal

conclusions were legally correct.” Messing v. Bank of Am., N.A., 373 Md. 672, 684

(2003) (citations omitted).

The Boyds contend that the circuit court legally erred in ruling that their claims in

the circuit court action were barred by collateral estoppel or related principles of failure

to exhaust administrative remedies. Their primary position is that Beatty did not

investigate an administrative complaint for the MIA, but rather conducted an

“examination” of a public adjuster pursuant to Ins. § 2-206(1). They maintain that, in his

capacity as an examiner, Beatty did not act in a quasi-judicial manner; that his letter was

not a decision, but a “proposed examination report”; and that despite the representation in

the letter that the Boyds had a right to a hearing to contest Beatty’s determination that

GGG did not violate the Insurance Article, they were not in fact entitled to a hearing.

Rather, the Boyds assert that only GGG was entitled to a hearing had it been aggrieved

by Beatty’s proposed examination report.

GGG responds that the argument that Beatty’s letter was a proposed examination

report from which the Boyds were not entitled to appeal is without merit and, in any

event, is waived because it was not advanced in the circuit court. It maintains that the

circuit court correctly ruled that the Boyds were collaterally estopped from pursuing their

claims in the circuit court because they elected to pursue claims premised on the same

core facts before the MIA, which rendered a decision adverse to them that became final

when they did not administratively appeal within 30 days. Further, GGG argues that the

-14- administrative remedy was primary and, thus, that the Boyds were obligated to exhaust

that remedy before pursuing a civil action.

a.

We begin by assessing the nature of the MIA Action and the Boyds’

administrative rights and remedies. The Commissioner is empowered to enforce the

Insurance Article by, among other things, imposing “any penalty or remedy authorized by

[the] article, against a person that is under investigation for or charged with a violation of

[the] article[.]” Ins. § 2-201(e). The Commissioner is authorized to conduct any

investigation “necessary to fulfill the purposes of [the] article” even if not “expressly

authorized.” Ins. § 2-108. In conducting an investigation, examination, or hearing, the

Commissioner, deputy Commissioner, or an examiner authorized by the Commissioner

may administer oaths, examine persons, and issue subpoenas compelling witnesses to

appear and testify or produce documents. Ins. § 2-203.

Public adjusters are regulated under Title 10, Subtitle 4 of the Insurance Article.13

A public adjuster must be licensed to offer services in Maryland. Ins. § 10-403(a).

Section 10-410 governs the suspension or revocation of the license of a public adjuster.

As pertinent, the Commissioner may suspend or revoke a public adjuster’s license “after

notice and opportunity for a hearing under [Ins.] §§ 2-210 through 2-214 . . . if . . . the

licensee” violates the Insurance Article, “engage[s] in fraudulent or dishonest practices,”

13 In 2017, after the Boyds entered into their contract with GGG, the legislature significantly amended and expanded Title 10, Subtitle 4. See 2017 Md. Laws, ch. 106 § 1 (effective Jan. 1, 2018).

-15- “demonstrate[s] incompetency or untrustworthiness,” “misappropriate[s], convert[s], or

unlawfully with[holds] money,” or “fail[s] or refuse[s] to pay on demand money that

belongs to an . . . insured[.]” Ins. § 10-410(a). In addition to suspension or revocation of a

license, the Commissioner is empowered to impose a penalty of between $100 and $500

for each violation of the Insurance Article and to order the public adjuster to pay

“restitution to any citizen who has suffered financial injury because of the violation of

[the] article.” Ins. § 10-410(c) & (d).

Section 2-206 governs “examinations” of insurance brokers, agents, and public

adjusters. It authorizes the Commissioner to “examine the accounts, records, documents,

and transactions that relate to the insurance affairs or proposed insurance affairs” of those

persons or entities whenever “advisable to determine compliance” with the Insurance

Article. Ins. § 2-206. An examination is conducted at the place of business of the person

or entity being examined or the “place where records of the person are kept.” Ins. § 2-

207(a)(2). The person being examined must make available to the examiner “the

accounts, records, documents, files, information, assets, and matters that are in the

possession or control of the person and relate to the subject of the examination” and assist

with the examination to “the extent reasonably possible.” Ins. § 2-207(b). At the

conclusion of an examination, the examiner prepares a proposed examination report,

which contains “facts” ascertained from “the books, records, or documents of the person

being examined; or . . . determined from statements of individuals about the person’s

affairs.” Ins. § 2-209(b). The proposed examination report must be served on the person

examined and if, within 30 days thereafter, that person requests a hearing, the

-16- Commissioner shall grant the request. Ins. § 2-209(c). The proposed examination report

may not be adopted until the hearing has been held. Id. After an examination report is

adopted by the Commissioner, it may be admitted in evidence in any action brought by

the Commissioner against an individual. Ins. § 2-209(d).

Ins. § 2-210 pertains to hearings. The Commissioner “may hold hearings” that he

or she “considers necessary for any purpose under [the] article” and “shall hold a

hearing” required by the article or “on written demand by a person aggrieved by any act

of, threatened act of, or failure to act by the Commissioner or by any report, regulation, or

order of the Commissioner, except an order to hold a hearing or an order resulting from a

hearing.” Ins. § 2-210(a). Hearings are governed by the contested case provisions of the

Administrative Procedure Act. Ins. § 2-210(c). In holding a hearing under Title 2,

Subtitle 2, the Commissioner “sits in a quasi-judicial capacity.” Ins. § 2-214(a).

Following a hearing, the Commissioner shall issue an order setting forth a concise

statement of the facts found, the conclusions drawn from those facts, and setting forth the

effective date, purpose, the grounds for the Commissioner’s action, and the provisions of

the article upon which he or she relied. Ins. §§ 2-214(c) & 2-204(b). As pertinent, a party

aggrieved by “an order resulting from a hearing or a refusal to hold a hearing” may

petition for judicial review in the circuit court. Ins. § 2-215.

The Commissioner has adopted regulations to carry out the article which appear at

Title 31 of the Code of Maryland Regulations (COMAR). See Ins. § 2-109(a)

(authorizing the Commissioner to adopt regulations). The definitions in Subtitle 2,

pertaining to “Powers and Duties – Hearings,” are pertinent to our analysis. An

-17- “Administrative complaint” includes “a document that . . . [i]s received by the

Commissioner from any person” that “[a]lleges a violation of . . . [a] law or regulation

enforced by the Commissioner[.]” COMAR § 31.02.01.02.B(2). A contested case is

defined to include a proceeding “[a]rising out of a determination made by the

Commissioner,” “[r]egarding a license . . .,” “on a proposed examination report,” or

“arising out of any other act of, threatened act of, or failure to act by the Commissioner

that aggrieves a person.” COMAR § 31.02.01.02.B(3). A “Determination” means “a

decision by the Commissioner that requires [him or her] to provide the opportunity for a

hearing to a person aggrieved by the decision . . . [pursuant to Ins.] § 2-210[.]” COMAR

§ 31.02.01.02.B(4)(a). It includes “[a] decision as to whether a person against whom an

administrative complaint has been received violated a law, regulation, or order[.]”

COMAR § 31.02.01.02.B(4)(b)(i). An “Examination Report” is defined to include “a

report of the examination of . . . [a] public adjuster[.]” COMAR § 31.02.01.02.B(5)(a)(ii).

A “[p]roposed examination report” is the report mailed “to the person examined . . . [a]t

the conclusion of an examination” that “informs the person being examined of the

person’s right to request a hearing pursuant to Regulation .04C[.]” COMAR

31.02.01.02.B(9).

COMAR § 31.02.01.03 “applies to all requests for a hearing except a request for a

hearing on a proposed examination report.” As mentioned, a copy of this regulation was

appended to Beatty’s letter to the Boyds. A request made under this regulation must be

received by the Commissioner “within 30 days of the date of the letter notifying the party

of the Commissioner’s action, intention to act, or failure to act.” COMAR

-18- 31.02.01.03.C(1). The request must specify the “action or non-action of the

Commissioner causing the person requesting the hearing to be aggrieved[.]” COMAR

31.02.01.03.D(1).

COMAR § 31.02.01.04 governs requests for hearings on proposed examination

reports. A proposed examination report must be mailed to the “person that was

examined” 30 days before the proposed report is filed and must advise the person

examined if the Commissioner “intends to impose a fine or other penalty or require

restitution or other remedy as a result of the findings of the proposed examination

report[.]” COMAR § 31.02.01.04.B. The person examined may, within 30 days of receipt

of the proposed examination report, request a hearing. COMAR § 31.02.01.04.C.

In either case, once a hearing is scheduled, the parties are entitled to limited

discovery by filing requests for production and by subpoenaing witnesses. COMAR §§

31.02.01.05-1 & .06.

b.

We discern from the statutes and regulations set out above that the MIA Action

was initiated by the Boyds’ filing of an administrative complaint; that it was not an

examination; that Beatty’s letter was an MIA “Determination”; and that the Boyds, as

parties aggrieved by that determination, were entitled to a contested case hearing, had

they elected to request one. We explain.

An examination is like an audit. It may be initiated by the Commissioner to

determine general compliance with the Insurance Article or specific provisions of it. It is

conducted at the place of business of the person to be examined and the findings resulting

-19- from the examination are served upon the person examined, who is entitled to an

exceptions hearing, upon request, before the proposed examination report may be

adopted.

In contrast to that procedure, here the Boyds filed a complaint using a complaint

form available on the MIA’s website. They identified a specific claim that GGG allegedly

mishandled. In response to their complaint, Beatty, who identified himself as an

“Insurance Investigator,” not an examiner, advised GGG that a complaint had been made

against them and that he was charged with investigating that complaint, and directed

them to provide him with the Boyds’ claim file and any related documents and

correspondence. He did not come to GGG’s place of business to examine its records and

accounts and he did not seek records outside of the scope of the Boyds’ complaint.14

Further, at the end of Beatty’s investigation, he served his letter summarizing his findings

and conclusions upon the Boyds, not upon GGG.

Beatty’s letter to the Boyds’ counsel was “[a] decision as to whether a person

against whom an administrative complaint has been received violated a law, regulation,

or order[.]” COMAR 31.02.01.02.B(4). It follows that to the extent the Boyds were

aggrieved by that decision, they were entitled to a hearing upon their request. COMAR

31.02.01.02.B(4); Ins. § 2-210(a)(2). This was consistent with Beatty’s letter, which

advised them that they could request a hearing within 30 days of their receipt of his letter

14 We do not mean to suggest that an examination never could result from an administrative complaint, but only that that was not what occurred here.

-20- and attached a copy of COMAR 31.02.01.03, which is the regulation governing hearing

requests generally, not hearing requests in response to a proposed examination report.

c.

We now turn to the impact, if any, that the Boyds’ decision to pursue an

administrative complaint, but not to request a hearing after the MIA’s preliminary

decision, had upon their right to pursue their judicial action in the circuit court. GGG

maintains that the Boyds were collaterally estopped by the MIA decision from relitigating

the same issues in the circuit court or, in the alternative, that by their decision not to

request a contested case hearing, they failed to exhaust their administrative remedies. We

conclude that the MIA decision was not the product of a quasi-judicial proceeding and,

consequently, the Boyds were not collaterally estopped by it. Further, we conclude that

the administrative remedy was neither exclusive nor primary but was fully concurrent

with the judicial remedy. Thus, the Boyds were not obligated to exhaust administrative

remedies to pursue their judicial action. Thus, we shall reverse the circuit court’s grant of

GGG’s motion for summary judgment.

In Batson v. Shiflett, 325 Md. 684, 705 (1992), the Court of Appeals held that the

decision of an administrative agency may have preclusive effect if the agency decision

was the product of a quasi-judicial proceeding. The Court adopted the three-part test set

out by the United States Court of Appeals for the Ninth Circuit in Exxon Corp. v.

Fischer, 807 F.2d 842, 845-46 (9th Cir. 1987), for preclusive effect of agency decisions.

That test provides that an agency decision can have preclusive effect if: (1) the agency acted in a judicial capacity; (2) the issue presented to the fact

-21- finder in the second proceeding was fully litigated before the agency; and (3) resolution of the issue was necessary to the agency’s decision.

Garrity, 447 Md. at 380 (citing Batson, 325 Md. at 701). If the test is satisfied, “agency

findings made in the course of proceedings that are judicial in nature should be given the

same preclusive effect as findings made by a court.” Batson, 325 Md. at 702.

Applying that test, GGG asserts that the MIA “convened a ‘contested hearing’, in

which the Boyds were called upon to prove their assertions and GG[G] was called upon

to contest those assertions.” Ins. § 2-214(a) makes plain, however, that the Commissioner

acts in a quasi-judicial manner when holding a hearing pursuant to Ins. § 2-210. As

discussed, though the Boyds were entitled to a hearing under Ins. § 2-210 following the

MIA’s determination that GGG had not violated the Insurance Article by its handling of

their claim, a hearing as that term is used in the Insurance Article had not yet occurred.

See COMAR 31.02.01.02.B(4) (defining “Determination” to mean “a decision by the

Commissioner that requires the Commissioner to provide the opportunity for a hearing to

a person aggrieved by the decision under Insurance Article §2-210”) (emphasis added).

Likewise, the administrative complaint submitted by the Boyds, though contested by

GGG, did not become a “contested case” until the determination was made that aggrieved

either the Boyds or GGG. See COMAR 31.02.01.02.B(3) (defining “Contested Case” to

include a proceeding “[a]rising out of a determination made by the Commissioner” or

“any other act of, threatened act of, or failure to act by the Commissioner that aggrieves a

person”) (emphasis added). Because the Insurance Article specifies when the

Commissioner acts in a quasi-judicial manner and that the investigation of an

-22- administrative complaint precedes the exercise of those powers, we conclude that the

investigation of the Boyds’ complaint resulting in the preliminary agency decision was

not a quasi-judicial proceeding.

Our conclusion is bolstered by the fact the Boyds did not participate in an

adversarial hearing prior to the decision. GGG’s analogy to Garrity in this regard is

misplaced. In that case, the Court of Appeals held that the Consumer Protection

Division’s (“CPD”) final decision that a plumber violated the Consumer Protection Act,

imposing fines, and ordering him to pay restitution, had preclusive effect in a second

administrative proceeding brought against the same plumber by his licensing board to

revoke his license and impose additional penalties. There, the CPD’s decision had

followed a two-day administrative hearing before an Administrative Law Judge at the

Office of Administrative Hearings. In this case, in contrast, there was no oral hearing;

none of the parties testified, called witnesses, or cross-examined adverse parties; and

Beatty did not make credibility determinations in assessing the parties’ competing

positions.

GGG nevertheless maintains, citing Alitalia Linee Aeree Italiane v. Tornillo, 320

Md. 192 (1990),15 that Beatty conducted a “paper hearing.” Even if the investigation may

15 In Alitalia, 320 Md. at 192, the Court of Appeals considered whether a motion for rehearing filed by an employer before the Workers Compensation Commission must have been preceded by an oral, adversarial hearing to be effective. The employee, Tornillo, had filed a claim form alleging that he suffered an accidental injury arising out of his employment. Alitalia did not request a hearing within the requisite time and the Commission made an award based upon the evidence in the record, i.e., the claim form. Thereafter, Alitalia moved to strike the award and/or for a rehearing. The Commission (continued…)

-23- have amounted to a “paper hearing” as that term has been defined in our case law and

satisfied the Boyds’ and GGG’s due process rights at that preliminary stage of the agency

review, it does not follow that it was a quasi-judicial proceeding for purposes of collateral

estoppel. For the reasons already discussed, we conclude that it was not. Given this

conclusion, the three-part Exxon test is not satisfied here, and collateral estoppel does not

apply. Consequently, we need not assess whether the the issues presented by the Boyds in

the circuit court action were “fully litigated before the [MIA]” or whether “resolution of

th[ose] issues was necessary to the [MIA’s] decision.” Garrity, 447 Md. at 380.

d.

We turn to the alternative basis offered by GGG for affirmance of the grant of

summary judgment: that the Boyds were obligated to exhaust administrative remedies

before pursuing relief in the circuit court. “Whenever the Legislature provides an

administrative and judicial review remedy for a particular matter or matters, the

(…continued) denied the motion. On judicial review, Tornillo argued that the petition was untimely because it was filed more than thirty days after the award of compensation and that the petition for rehearing had not tolled the time to appeal because no hearing ever had been held. The circuit court agreed and entered judgment in favor of Tornillo. This Court affirmed that judgment. In the Court of Appeals, it characterized the issue before it as “whether the word ‘hearing’ must be strictly limited to a proceeding at which counsel or parties in fact are heard – or at least have the opportunity to be heard: i.e., to present evidence and to make oral presentations to the tribunal.” Id. at 197. It reasoned that the history of the Worker’s Compensation statute at issue supported the view that a motion for rehearing operated like a motion for reconsideration. The Court further opined: “No violence is done to the meaning of ‘hearing’ by reading it as extending to something other than an oral presentation before the tribunal. We have recognized the concept of a ‘paper hearing.’” Id. at 199 (citing Phillips v. Venker, 316 Md. 212, 218, 221-222 (1989) (additional citations omitted)).

-24- relationship between that administrative remedy and a possible alternative judicial

remedy will ordinarily fall into one of three categories.” Zappone v. Liberty Life Ins. Co.,

349 Md. 45, 60 (1998).

First, the administrative remedy may be exclusive, thus precluding any resort to an alternative remedy. Under this scenario, there simply is no alternative cause of action for matters covered by the statutory administrative remedy. Second, the administrative remedy may be primary but not exclusive. In this situation, a claimant must invoke and exhaust the administrative remedy, and seek judicial review of an adverse administrative decision, before a court can properly adjudicate the merits of the alternative judicial remedy. Third, the administrative remedy and the alternative judicial remedy may be fully concurrent, with neither remedy being primary, and the plaintiff at his or her option may pursue the judicial remedy without the necessity of invoking and exhausting the administrative remedy.

Id. at 60-61 (citations omitted) (emphasis in original).

“Whether a plaintiff must exhaust administrative remedies prior to bringing suit is

a legal issue which [we] review[] de novo.” United Ins. Co. of Am. v. Md. Ins. Admin.,

450 Md. 1, 14 (2016). We determine whether an administrative remedy is exclusive,

primary, or concurrent by assessing the legislative intent. Zappone, 349 Md. at 61. If the

legislature expressly states that an administrative remedy is intended to be exclusive,

primary, or concurrent, then a reviewing court need not examine other factors to discern

the legislature’s intent. Id. On the other hand, “[i]n the absence of specific statutory

language indicating the type of administrative remedy, there is a rebuttable presumption

that an administrative remedy was intended to be primary. Thus, ‘a claimant cannot

maintain the alternative judicial action without first invoking and exhausting the

administrative remedy.’” United Ins., 450 Md. at 15 (citing Zappone, 349 Md. at 63).

-25- GGG does not contend that the MIA’s jurisdiction was exclusive but argues that

the MIA’s jurisdiction was primary and, thus, the Boyds, were obligated to pursue that

forum to “a hearing or a final decision” before pursuing judicial relief. The Boyds

respond that the circuit court’s jurisdiction was fully concurrent with the MIA’s

jurisdiction with respect to their claims. In any event, to the extent they were required to

exhaust administrative remedies, they did so by pursuing an MIA complaint but then

“electing not to pursue a hearing before the OAH[,]” thereby “terminat[ing] the

administrative process” and rendering Beatty’s letter determination final with respect to

their administrative remedies.

Title 10, Subtitle 4 of the Insurance Article does not express a legislative intent to

grant the MIA exclusive jurisdiction over a complaint against a public adjuster for breach

of contract, negligence, fraud, and related claims. We thus turn to whether the

presumption that the MIA had primary jurisdiction over those claims was rebutted here.

In Zappone, the Court of Appeals held that the presumption of primary jurisdiction

was rebutted in a judicial action brought by an insured against an insurer and an

insurance agent for alleged acts of fraud, negligent misrepresentation, and negligence.

349 Md. at 50. Those claims arose from allegations that Liberty Life and its agents had

misrepresented the benefits and the tax consequences of a life insurance policy that

Zappone purchased. On appeal from the dismissal of Zappone’s judicial action for failure

to exhaust administrative remedies, the Court of Appeals rejected the argument that

Zappone was obligated first to exhaust his remedies under the Unfair Trade Practices title

of the Insurance Article.

-26- In so holding, the Court explained that four factors were germane to the

determination of whether the presumption of a primary remedy has been rebutted: 1) “the

comprehensiveness of the administrative remedy”; 2) “the administrative agency’s view

of its own jurisdiction”; 3) the claim’s “dependen[ce] upon the statutory scheme which

also contains the administrative remedy”; and 4) the claim’s dependence “upon the

expertise of the administrative agency.” Id. at 64-65. It concluded that all four factors

weighed against the MIA having primary jurisdiction. The Court reasoned that Zappone

set forth “recognized common law causes of action” that were “wholly independent of

the Insurance Code’s Unfair Trade Practices subtitle.” Id. at 67. The Insurance

Commissioner, who had filed an amicus brief supporting Zappone’s position, did not

view its jurisdiction to be primary. Id. at 67-68. Further, the Unfair Trade Practices title

expressly stated that an order issued by the Commissioner under the title did not relieve

an insurer of other liability, reflecting an intent to permit alternative judicial relief.

The Court reached a similar result in Mardirossian v. Paul Revere Life Insurance

Co., 376 Md. 640 (2003). Mardirossian, like the Boyds here, initially filed an

administrative complaint against Paul Revere, alleging that it had wrongfully failed to

issue a disability insurance policy to him, based upon an oral contract to issue that policy.

The MIA investigator charged with investigating his complaint consulted with the MIA’s

chief enforcement officer, who determined that the complaint should not be pursued

because it would be inappropriate to hold an insurance company responsible for not

issuing a disability policy based upon an agent’s representation to a broker. The

investigator advised Mardirossian of this “preliminary finding” and Mardirossian “did not

-27- pursue the administrative complaint to a higher level within the MIA.” Id. at 645. In a

footnote, the Court emphasized that Mardirossian was entitled to an adversarial hearing

to contest the MIA investigator’s preliminary finding not to pursue his complaint. Id. at

645, n.2.

Mardirossian then filed a complaint in the circuit court seeking specific

performance of the oral contract. That case was removed to the United States District

Court for the District of Maryland, which ruled that the administrative remedies were

exclusive and primary and Mardirossian was obligated to exhaust them before pursuing

the specific performance claim. On appeal, the Fourth Circuit Court of Appeals vacated

that judgment and remanded to the district court with instructions to certify the issue of

whether the Insurance Article created a primary administrative remedy, supplanting

Maryland’s common law contract remedy, to the Court of Appeals.

In deciding that certified question, the Court of Appeals, relying on Zappone,

reasoned that an action for specific performance to enforce an oral contract for insurance

was well-established in Maryland law and that the Unfair and Deceptive Trade Practices

subtitle of the Insurance Code did not evidence an intent to supplant that remedy. It

concluded that the legislature “did not intend that the Insurance Commissioner’s

authority, to restrain unfair practices [would] modif[y] Maryland[’s] common law

contract enforceability principles.” Id. at 649. The Court determined that the remedies

available under the Insurance Code were neither exclusive nor primary and that the

“common law contract remedy [was] fully concurrent, and may be pursued in court

-28- without exhausting the administrative remedy[.]” Id. Of significance, Mardirossian, like

the Boyds, elected not to appeal from the MIA’s adverse finding against him.

Conversely, in cases involving claims that arise out of violations of the Insurance

Article, the Court of Appeals has held that the administrative remedy is primary and must

be exhausted before adjudication of a judicial action. In Carter v. Huntington Title &

Escrow, LLC, 420 Md. 605, 609 (2011), Maurice Carter filed in the circuit court a

putative class action suit on behalf of himself and similarly situated persons, claiming

that a title insurer overcharged them on title insurance during loan refinance transactions

in violation of the Unfair Trade Practices Title of the Insurance Article. He also asserted

claims for “money had and received” and for “negligent misrepresentation.” Id. at 610-

11. In support of his claims, Carter relied upon provisions of the Insurance Article

requiring title insurers to file their rates with the MIA and not deviate from those rates

once approved. Id. at 611. The title insurer moved to dismiss the complaint, arguing that

the MIA had primary jurisdiction over Carter’s claims. The circuit court granted the

motion to dismiss and Carter’s appeal from that ruling reached the Court of Appeals.

Distinguishing Zappone and Mardirossian, the Court observed that in those cases,

the “behavior of the defendants violated the Insurance Article” but the “consumers

possessed a ‘recognized independent tort remedy’ and a ‘common law contract remedy,’

respectively, and therefore could seek relief outside the administrative regulatory

scheme.” Id. at 626. In contrast, Carter’s claims alleged “purely statutory violations.” Id.

Analysis of the four factors enunciated in Zappone weighed in favor of the

primacy of the administrative remedy. The Insurance Article reflected a legislative intent

-29- to create a “comprehensive, if not complex, regulatory and remedial scheme[.]” Id. at

627. The Court framed the question as whether that scheme was “sufficiently

comprehensive” to reflect an intent for a claim like Carter’s to proceed first

administratively. Id. Given that Carter’s claims alleged and “depend[ed] on a statutory

benchmark violation,” though recast as common law claims, the Court concluded that it

did. Id. at 628. Under the second factor, the Court pointed out that in another case

involving a violation of a statutory obligation under the Insurance Article, the Insurance

Commissioner had filed an amicus brief taking the position that the MIA had primary

jurisdiction. Under the third factor, the Court reasoned that Carter’s claims would not

exist “without an essential underpinning found in the Insurance Article.” Id. at 630. The

fourth factor did not weigh strongly either way. Overall, the Court held that primary

jurisdiction vested with the MIA and that Carter was obligated to first exhaust his

administrative remedies.

Likewise, in United Insurance, the Court held that an insurer was obligated to

exhaust its right to an administrative hearing under Ins. § 2-210 before it could seek

declaratory relief in the circuit court against the MIA to challenge the Commissioner’s

stated intent to give retroactive effect to a newly enacted statute governing life insurance

policies. Citing Carter, the Court emphasized the overall breadth of the Insurance

Article’s remedial scheme and, specifically, that United Insurance’s claim for declaratory

relief turned upon the Commissioner’s interpretation and application of a statute it was

tasked with enforcing. 450 Md. at 17-18. It emphasized that the MIA, which had

successfully moved to dismiss the declaratory judgment action in the circuit court, clearly

-30- viewed its jurisdiction over the claim as primary. Id. at 22. Under the third Zappone

factor, the Court held that the insurer’s claims were dependent upon the statutory scheme

because the enactment of the statute and the Commissioner’s threat to enforce the statute

retroactively formed the basis for claim for declaratory relief. Finally, it was appropriate

to accord deference to the MIA, in the first instance, to pass upon the issue of retroactive

application of the statute. Id. at 27.

We return to the instant case. As in Zappone and Mardirossian, assessment of the

relevant factors weighs in favor of concurrent jurisdiction over the Boyds’ claims.

Though the Unfair Trade Practices title of the Insurance Article creates a comprehensive

remedial scheme, the regulation of a public adjuster under Title 10, Subtitle 4 in effect at

the time of the acts giving rise to the Boyds’ complaint was much more limited in

scope.16 It regulated the licensure of a public adjuster and granted the Commissioner

discretion to award restitution for financial harm. The MIA has not participated in this

case and, thus, we cannot gauge its view of its jurisdiction under these facts. Of great

16 As noted earlier, after the contract and the events in this case giving rise to the Boyds’ claims against GGG, the legislature amended and expanded Title 10, Subtitle 4. See 2017 Md. Laws, ch. 106 § 1 (effective Jan. 1, 2018). Section 10-411 now prescribes the form of a contract for public adjuster services. Section 10-412 requires public adjusters to deposit funds held on behalf of an insured in a non-interest-bearing escrow or trust account. Section 10-413 obligates a public adjuster to maintain certain records. Section 10-414 sets out the standards of conduct and obligations of a public adjuster. Section 10-415 sets forth a public adjuster’s ethical obligations. Section 10-416 requires a public adjuster to report to the Commissioner any final administrative action taken against it in another jurisdiction. We express no opinion as to whether those statutes, which do not apply here, might evince an intent to create a primary or exclusive administrative remedy in future cases.

-31- significance, the counts in the Boyds’ amended complaint against GGG allege traditional

common law claims for breach of contract, fraud, and negligence that are almost entirely

independent of any violation of the Insurance Article.17 The Boyds’ count in which

restitution is claimed for the commission charged by GGG rests upon an alleged lack of

consideration, not upon a statutory violation. The Boyds’ declaratory judgment count

seeking a declaration that they have a right to terminate the contract also does not depend

upon interpretation of any provision of the Insurance Article, but upon construction of the

Boyds’ contract with GGG. For these reasons, we conclude that, as Zappone and

Mardirossian, Title 10, Subtitle 4 of the Insurance Article does not reflect an intent to

supplant the common law remedies for breach of contract, fraud, negligence, the

equitable remedy of restitution, or the statutory relief available under the declaratory

judgment act, by regulating the licensure of public adjusters.

Further, as in Mardirossian, the Boyds’ decision not to pursue a contested case

hearing to challenge the preliminary determination against them did not preclude them

from pursuing alternative judicial relief. See also Thompson v. State Farm Mutual

Automobile Insurance Co., 196 Md. App. 235, 248 (2010) (reasoning that a party who

pursues an administrative complaint before the MIA and receives an adverse preliminary

decision after a paper hearing, but elects not to request a contested case hearing before

the OAH, may not then seek judicial review of that decision, but may pursue an

17 The Boyds make one reference to the Insurance Article in the amended complaint. In their negligence count, they allege that GGG’s duty of care arose under Ins. § 10-410(a)(4), (5) and (9).

-32- independent action before the circuit court, assuming that independent statutory, common

law, or equitable remedies exist). Rather, by electing not to pursue that hearing, the

Boyds terminated their concurrent administrative proceeding in favor of their judicial

proceeding. This was their prerogative.

We recognize that there is an asymmetry to GGG in this result. Had the MIA’s

preliminary decision been favorable to the Boyds, GGG could have faced suspension or

revocation of its license, fines, and/or an order to pay restitution. Thus, GGG would have

been obligated to request a contested case hearing to avoid those adverse outcomes.

Given that the MIA regulates insurers and insurance professionals, not insureds, and the

fact that the MIA could not have given full relief to the Boyds, even if warranted, our

construction of the administrative scheme is not unreasonable or unfair.

II.

Motion to Strike Amended Complaint

Given our resolution of the first issue, we conclude that the court erred in granting

the motion to strike the amended complaint for the reason given. The court’s reasoning in

ruling on the motion to strike was intertwined with the ruling on summary judgment. It

emphasized in granting that motion that GGG was prejudiced by the Boyds’ decision to

pursue two avenues for relief simultaneously and that striking the amendments was not

unfair to the Boyds because they had been given an opportunity to litigate their claims

before the MIA but elected not to pursue a hearing. As already explained, however, the

Boyds were permitted to pursue both their administrative and judicial remedies and to

terminate their administrative complaint in favor of the pending judicial action. Any

-33- prejudice to GGG occasioned by the timing of the amendments to the complaint relative

to the then scheduled trial date are moot given that on remand, a new trial date will be

scheduled.

JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED. COSTS TO BE PAID BY APPELLEE.

-34-