Feldman v. State

615 P.2d 238, 96 Nev. 614, 1980 Nev. LEXIS 665
CourtNevada Supreme Court
DecidedJuly 29, 1980
DocketNo. 10773
StatusPublished
Cited by4 cases

This text of 615 P.2d 238 (Feldman v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Feldman v. State, 615 P.2d 238, 96 Nev. 614, 1980 Nev. LEXIS 665 (Neb. 1980).

Opinion

OPINION

By the Court,

Batjer, J.:

Upon review, the district court affirmed that part of an order of the Division of Insurance, respondent and cross-appellant, hereinafter referred to as the “division”, holding that the service fee charged by appellants was illegal, and reversed that part of the order revoking appellants’ insurance license and requiring appellants to refund “service charges” collected prior to December 22, 1977. Robert B. Feldman and All Risk Insurance Agency, Inc., hereinafter referred to as “Feldman”, now appeal the district court’s ruling that the fee is illegal. The division appeals from the reversal of its penalty orders.

[616]*616Feldman is president of All Risk, and was also licensed as an insurance broker. The agency specializes in obtaining auto insurance for high risk customers.

In late 1976, Feldman decided that the extra expense of performing his specialized services, such as driving record searches, accounting and clerical work, justified and necessitated an “initial customer service fee” of $25.00. Sometime before October 29, 1976, Feldman informed the division of his intention to charge the “customer service fee”. After a series of correspondence with the division, Feldman was notified that the fee was not to be charged until it was approved. Feldman answered the following day, by letter, that in his opinion the fee was legal, that he intended to charge it, and if the division objected, it could summon him to a hearing. Counsel for the division answered Feldman’s letter and stated that the fee was illegal. Feldman replied shortly, by letter, that he “did not agree”, and implied that he would nevertheless charge the fee.

On November 5, 1976, Feldman began to charge each new customer $25.00 upon application for insurance. The fee was charged as a condition to Feldman’s beginning the process of searching for and obtaining an insurance policy. He requested each customer to sign a statement which explicitly revealed the fee, the reason for it, and its nature. The statement also made clear that the fee was not for premiums to be paid to an insurance company, but a charge to be kept by the agency as a service fee.

The division summoned Feldman to a hearing, after which the examiner ruled the fee was illegal under NRS 686A.230, and found that Feldman had “willfully”, consciously and voluntarily violated NRS 686A.230. He ordered Feldman to return the fees collected' and revoked the license of Feldman and All Risk.

The district court, reviewing the division’s order, affirmed the ruling that the charge was illegal, but reversed the orders that Feldman return the fees and that the license be revoked, “as being an unduly harsh and unjustified penalty under the circumstances and in view of [appellants’] good faith”.

Feldman contends that the “service fee” is not prohibited by NRS 686A.230(1)(2), nor by NRS 686A.21Ó.1 The division and [617]*617the district court both found this contention to be in error when NRS 686A.230(1 )(2) is read in conjunction with NRS 687B.030(1).2

A strained and isolated reading of NRS 686A.230(1)(2) might support appellants’ position,3 but when read with NRS 687B.030, it is clear and explicit that any charge for procuring insurance above the authorized premium is prohibited.

In support of his position, Feldman relies on Coro Brokerage, Inc. v. Rickard, 148 A.2d 817 (N.J. 1959), which held that a service fee similar to the one charged by him was legal. In that case, the New Jersey Supreme Court held that, “A payment for such services does not come within the term ‘premium’ [as used in the New Jersey statute], and therefore is not prohibited by that section.” This is not so in Nevada, where the word “premium” specifically includes “service” or similar fee or other charge in consideration for an insurance contract or procurement. NRS 687B.030.

[618]*618v. State of Nevada_[96 Nev.

Feldman further contends that the Commerce Clause of the Constitution of the United States precludes the Nevada Legislature from prohibiting the questioned fee because it is not part of the relationship between the insurance company and the customer, and is therefore not “the business of insurance” which the state may regulate under the McCarran-Ferguson Act (15 U.S.C. §§ 1011-1015). This argument is unsupported in the law and without merit. The purpose of the McCarran-Ferguson Act is to allow the states to regulate interstate commerce between insurance companies of one state and customers of another state. S.E.C. v. National Securities, Inc., 393 U.S. 453 (1969), makes it clear that the intention of the McCarran-Ferguson Act is to allow the states to regulate “directly or indirectlyv such relationship.

Without citing any relevant supporting authority, Feldman contends, for the first time in this appeal, that the statutory scheme precluding his “service charge”, in particular NRS 686A.230, violates the due process clause of the Fifth Amendment of the United States Constitution and Article I, Section 8, of the Nevada Constitution, as well as the “Contract Clause”, Article I, Section 10, of the United States Constitution and Article I, Section 15, of the Nevada Constitution.

Although Feldman made an attempt to raise certain constitutional issues in the district court, those issues bear no resemblance to those which he attempts to raise on appeal. Having failed to raise those contentions below, we will not consider them here. Central Bank v. Baldwin, 94 Nev. 581, 583 P.2d 1087 (1978). Furthermore, those constitutional issues which Feldman now attempts to raise are not supported by any relevant authority, and for that additional reason they will not be considered. Gilbert v. Warren, 95 Nev. 296, 594 P.2d 696 (1979); D’Atri v. Vignalats, 92 Nev. 748, 557 P.2d 272 (1976); Holland Livestock Ranch v. B & C Enterprises, 92 Nev.

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Cite This Page — Counsel Stack

Bluebook (online)
615 P.2d 238, 96 Nev. 614, 1980 Nev. LEXIS 665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feldman-v-state-nev-1980.