Brown v. Automotive Cas. Ins. Co.

644 So. 2d 723, 1994 WL 544328
CourtLouisiana Court of Appeal
DecidedOctober 7, 1994
DocketCA 93 2169
StatusPublished
Cited by34 cases

This text of 644 So. 2d 723 (Brown v. Automotive Cas. Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Automotive Cas. Ins. Co., 644 So. 2d 723, 1994 WL 544328 (La. Ct. App. 1994).

Opinion

644 So.2d 723 (1994)

James H. "Jim" BROWN, as Commissioner of Insurance for the State of Louisiana
v.
AUTOMOTIVE CASUALTY INSURANCE COMPANY.

No. CA 93 2169.

Court of Appeal of Louisiana, First Circuit.

October 7, 1994.
Writ Denied January 6, 1995.

*725 Bernard Marcus, William E. Wright, Jr., Sheldon W. Snipe, Deutsch, Kerrigan & Stiles, New Orleans, for defendants-appellants A.J. Adolph and Automotive Financial Services, Inc.

Richard A. Curry, Rodolfo J. Aguilar, Jr., McGlinchey, Stafford & Lang, Baton Rouge, for plaintiff-appellee James H. "Jim" Brown, Com'r of Ins.

Before CRAIN, FOIL and WHIPPLE, JJ.

WHIPPLE, Judge.

This is an appeal from a judgment of the trial court ordering liquidation of the defendant insurance company, Car Insurance Company, formerly known as Automotive Casualty Insurance Company and declaring Automotive Casualty Insurance Company, Automotive Financial Services, Inc., and Adolph Enterprises, Inc., d/b/a Automotive Protection Service, a single business enterprise. From this judgment, A.J. Adolph and Automotive Financial Services, Inc. appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

A.J. Adolph is the sole or majority shareholder in all companies involved in this litigation, and controlled the business affairs of these entities. Automotive Financial Services, Inc. (AFS) is a finance company primarily engaged in the financing of insurance premiums. Automotive Casualty Insurance Company (ACIC) is a property and casualty insurance company. Adolph Enterprises, Inc. d/b/a Automotive Protection Services (APS) is the managing general agent of ACIC, and a wholly owned subsidiary.

On August 24, 1992, James H. Brown, Commissioner of Insurance for the State of Louisiana (hereinafter referred to as the Commissioner), filed a petition for conservation and injunctive relief against ACIC. In the petition, the Commissioner sought (1) an order placing ACIC in conservation; (2) the surrender of all records and assets to the Commissioner; (3) an injunction prohibiting ACIC's officers, directors and others from transacting business on behalf of the company or from disposing of its property; and (4) a stay of litigation against ACIC. Additionally, the petition alleged that APS and AFS were owned in common with ACIC and were so closely involved with ACIC that the orders and injunctions sought by the Commissioner should extend to them as well.[1] An order was issued directing the Commissioner to take possession and control of the property, records and accounts of ACIC, and to the extent belonging or relating to ACIC, of APS and AFS. The entities were ordered to surrender to the Commissioner all property, books and records of or related to ACIC. The requested injunctive relief was also granted.

On September 1, 1992, by consent order, ACIC was placed in rehabilitation. The Commissioner was directed to take possession and control of ACIC and APS, and to the extent belonging to, or related to the insurer, of AFS.[2] These entities were directed to surrender to the Commissioner all property, business, books, records, accounts, documents and assets of, or related to ACIC or APS, including the premises occupied by ACIC. The order enjoined the officers, directors, shareholders and employees of ACIC, APS and AFS from transacting business on behalf of ACIC and APS, and from disposing or encumbering property or assets belonging to or related to the business affairs of either corporate entity.

On January 20, 1993, the Commissioner filed a petition and obtained an order placing *726 ACIC in liquidation.[3] The stay order enjoining any suits or proceedings against ACIC was maintained in full force and effect, as well as other prior orders not inconsistent with the order of liquidation.

Subsequently, and in the course of the liquidation proceedings, the Commissioner filed two petitions directly involving AFS, and naming AFS as a defendant. The first petition, filed on February 3, 1993, by the Commissioner in his capacity as liquidator of ACIC, sought injunctive relief against AFS and A.J. Adolph. The petition sought an order declaring AFS part of a single business enterprise with ACIC and APS and an insurer within the meaning of the insurance code. An order was thereafter obtained enjoining AFS and its officers, directors or employees from disposing of the company's property or assets and from transacting business except with the concurrence of the Commissioner. AFS and A.J. Adolph were ordered to show cause why AFS should not be declared part of a single business enterprise with ACIC and APS. By consent order, the matter was set for hearing on April 13-14, 1993, but later was continued to April 26, 1993.

However, on March 26, 1993, prior to the scheduled hearing date, the Commissioner filed the second petition styled "Petition for Conservation and Further Injunctive Relief and for Rule to Show Cause," naming AFS as defendant. The petition alleged that AFS was a captive premium finance company, subject to the provisions of the Insurance Code, citing recently amended provisions of the Louisiana Insurance Code, namely, LSA-R.S. 22:732.1(4) and LSA-R.S. 22:732.2(4).[4] AFS was ordered to show cause, on April 19, 1993, why it should not be rehabilitated and/or liquidated as prayed for by the Commissioner.

On April 19, 1993, the parties appeared for the hearing on the Commissioner's petition of March 26, 1993. A hearing was scheduled to begin the following Monday, April 26, 1993, on the Commissioner's earlier petition of February 3, 1993, which sought a declaration that AFS was a single business enterprise with ACIC and APS. The day before the hearing, A.J. Adolph and AFS delivered to the trial judge, at his residence, a motion to dismiss the March 26, 1993 petition on the grounds that the recently amended statute relied upon by the Commissioner was unconstitutional. Initially, the trial court declined to address the motion on the grounds that the attorney general had not been made a party, and because the motion had not been presented timely. After lengthy arguments by counsel, the court ruled that he would recess the proceedings until the following Monday, April 26, 1993, at which time he would take up the hearing on the February 3rd petition which did not involve constitutional issues and to which no constitutional challenge had been made. The trial court reasoned that a ruling on the single business enterprise in favor of the Commissioner would render moot the subsequently filed petition, and the constitutional attacks made thereto. The proceedings resumed on April 26, 1993, as a hearing on the Commissioner's *727 petition to have AFS declared a single business enterprise with ACIC and APS.

Following the hearing, which was conducted over a six day period, judgment was rendered in favor of the Commissioner, ordering liquidation of the former Automotive Casualty and the liquidation of AFS as it constituted a single business enterprise with ACIC and APS. From this judgment, A.J. Adolph and AFS devolutively appeal.

On appeal, appellants present the following assignments of error:

1. The Commissioner has failed to establish by a preponderance of the evidence, and the trial court erred in holding, that AFS constitutes an SBE with ACIC-APS.
2.

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Bluebook (online)
644 So. 2d 723, 1994 WL 544328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-automotive-cas-ins-co-lactapp-1994.