State Farm Mutual Automobile Insurance Co. v. Wyoming Insurance Department

793 P.2d 1008, 1990 Wyo. LEXIS 61, 1990 WL 70858

Opinions

ROONEY, Justice, Retired.

This appeal is from the district court’s denial of a challenge by appellants to Section 6 of a regulation promulgated by the appellee, which section prohibited use by an insurer of a non-OEM ¹ after market part in the repair of an automobile or in the estimate for such repair without the written consent of the insured to the use of such part.² The regulation was issued af ter a public hearing, and appellants/insurance companies timely filed a petition for review in the district court. The resulting order of the district court upheld the regulation.

We affirm.

Appellants word the issues on appeal:

“A. Does the Wyoming Insurance Department have statutory authority to regulate consumer choices between automobile parts manufactured by original manufacturers and those manufactured by non-original equipment manufacturers.

“B. Does the regulation promulgated by the Insurance Department impair contractual obligations between the Appellant and its insureds.

“C. Does the regulation bear enough of a reasonable relationship to its purpose to withstand due process scrutiny.

“D. Is Section 6 of the regulation supported by substantial evidence in the hearing record.”

Appellee words them:

“I. Does the Wyoming Insurance Commissioner have statutory authority to regulate insurers’ claims settlement practices?

“II. Have appellants shown that Section 6 of the regulation impairs their contractual obligations in violation of Article 1, Section 35 of the Wyoming Constitution?

“HI. Is there a rational basis for the promulgation of Section 6 of the regulation?

“IV. Must there be substantial evidence in an administrative record to support the adoption of a regulation?”

The standard provision of the insurance policies in question which is pertinent to this matter requires the insurer to

“pay to repair or replace the property or part with like kind and quality. If the repair or replacement results in better than like kind and quality, you must pay for the amount of the betterment.” (Emphasis added.)

In their arguments, appellants approach the issues with the assumption that appel-lee is imposing the use of OEM parts upon the appellants and that the problem is not one of consumer protection but is one of market competition. Two large industries are involved: the automobile industry and the insurance industry, but also involved is the consumer-insured. In truth, Section 6 of the regulation does not impose any use. It gives a choice to the insured. It is concerned primarily with the protection of the insured. The insured’s choices are not “regulated” as contended in appellants’ wording of the first issue. The insured is only afforded an opportunity to accept a replacement part other than that designated in the insurance policy. His choice is similar to that made by any consumer on the basis of that contained on the labels of two competing products. Any marketing impact is incidental to protection of the insured and to fair and equitable performance under the insurance policies.

With reference to the specific issues:

FIRST ISSUE: STATUTORY AUTHORITY OF THE INSURANCE COMMISSIONER TO PROMULGATE SECTION 6 OF THE REGULATION

The authority of the Insurance Commissioner to promulgate Section 6 of the regulation can be found in more than one statute.

I

The district court found such authority in W.S. 26-13-102 “specifically as an unfair practice.” ³ The district court properly reasoned:

“The policy of insurance gives to an insured the right to a replacement part of like kind and quality. The issue is whether the replacement part is of like kind and quality with respect to the damaged part. Petitioners’ argument means that an insured has no contractual right to insist upon OEM parts if a non-OEM part is of like kind and quality to the OEM part.

“This result is not what the insurance contract provides. It does not say that an insured must accept a non-OEM part even if it is of like quality as an OEM part.' To be sure, the policy promises the insured that he may have parts of like kind and quality as the damaged part. Nobody argues here that an OEM part is not of like kind and quality as the original equipment. If they do, the evidence of record falls short of compelling such a finding. Moreover, the evidence did not show that OEM parts amounted to a betterment within the meaning of the policy. The insured has a right to an OEM part even if it costs more, even if it is of like quality as a non-OEM part because it is not a betterment, but rather of like kind as the damaged original equipment.

“The potential that an insurer may require an insured to accept a non-OEM part raises the prospect that an insured may be denied the benefit of his bargain. This threat when coupled with the evidence of record (which casts doubt upon whether OEM and non-OEM parts are truly of like kind and quality) empowers the commissioner to regulate. Section 6 is sustained as a valid exercise of the commissioner’s rulemaking authority under W.S. § 26-13-102, specifically as an ‘unfair practice.’ ”

II

Another statute under which the Insurance Commissioner has authority to promulgate Section 6 of the regulation⁴ is W.S. 26-13-124. It sets forth fourteen practices as unfair methods of competition and unfair and deceptive acts.⁵ Appellants argue that since the use of non-OEM parts in repairs or in repair estimates is not itemized therein, such is not an unfair claims settlement practice.

Although not specifically itemized therein, the practice may result in a violation of subsection (a)(vi) thereof, i.e., “[n]ot attempting in good faith to effectuate * * ⅜ fair and equitable settlements of claims in which liability has become reasonably clear.” The district court found that “there is substantial evidence of record to support a distinction between OEM and non-OEM parts.” The record supports this finding. There would obviously be no “betterment” or “worsening” of value if an OEM part was used for estimate or replacement of the damaged OEM part. If the estimate or replacement was with a non-OEM part of greater value than the damaged part, the insured would be obligated under the contract to pay for the “betterment,” but there is no requirement for payment by the insurer for the “worsening” of value if the non-OEM part was less than that of the damaged part. As reasoned by the district court, the situation is obviously one-sided. Thus, the claim settlement condition of the policy is not “fair and equitable.” The evidence at the hearing illustrates the difficulty, if not the impossibility, to reach an agreement on the relative value of the OEM and the non-OEM parts. Section 6 of the regulation is a reasonable requirement for resolving the difficulty by allowing the insured to say “yes” or “no” to the use of non-OEM parts. It promotes “good faith to effectuate prompt, fair and equitable settlement of claims” per W.S. 26-13-124(a)(vi).⁶

III

Beyond that, appellants acknowledge that the Insurance Commissioner may determine a “practice not enumerated in” W.S. 26-13-124⁷ to be an unfair or deceptive practice. Appellants refer to W.S. 26-13-102⁸ in this connection as restricting the authority of the Commissioner with reference to unfair or deceptive acts or practices to those which are either “defined in this article” or “determined pursuant to this article.” Appellants then conclude that W.S. 26-13-116⁹ is that referred to in W.S. 26-13-102¹⁰ as the only method to “determine pursuant to this article” the existence or non-existence of the deceptive acts or practices, and that the Commissioner did not employ the procedure referred to in W.S. 26-13-116 in connection with this matter.

A hearing was held on this issue. Appellants took part in the hearing with full knowledge of the content of the proposed regulation. The procedure here used was in substantial compliance with that required by W.S. 26-13-116. Therefore, appellants’ argument for requiring exact itemization of the protected practice in W.S. 26-13-124 before the Commissioner can declare it to be an unfair or deceptive act or practice is a fallacious argument and W.S. 26-13-116 gives the Commissioner authority to promulgate Section 6 of the regulation.

IV

Not only was the procedure used here sufficiently within that required by W.S. 26-13-116(a), and not only could the action be taken pursuant to the authority enumerated in W.S. 26-13-102 and in W.S. 26-13-124(a)(vi), even if not itemized in W.S. 26-13-116(a), but the authority of the Insurance Commissioner to promulgate Section 6 of the regulation is also contained in W.S. 26-2-109(a)(iv) and (v), in W.S. 26-2-110 and W.S. 16-3-101(b)(ix). W.S. 26-2-109(a) reads in pertinent part:

“(a) The Commissioner shall:

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“(iv) Execute the duties imposed upon him by this code;

“(v) Have the powers and authority expressly conferred upon him by or reasonably implied from this code[.]” (Emphasis added.)

W.S. 26-2-110(a) reads:

“Subject to the requirements of the Wyoming Administrative Procedure Act [§§ 16-3-101 through 16-3-115], the commissioner may make reasonable rules and regulations necessary to carry out any provision of this code [title 26]. No rule or regulation shall extend, modify or conflict with any law of this state or the reasonable implications thereof.”

W.S. 16-3-101(b)(ix) reads in pertinent part:

“(b) As used in this act [Wyoming Administrative Procedures Act]:

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“(ix) ‘Rule’ means each agency statement of general applicability that implements, interprets and prescribes law, policy * * *.”

The nature of insurance requires that it be extensively regulated. W.S. 26-1-101, et seq. does so, and in doing so, reflects such requirement. That “reasonably implied” from any powers specifically given the Commissioner by “this code” authorizes Section 6 of the regulation. There is a reasonable possibility that the replacement of an OEM part with a non-OEM part could result in less than that required by the policy, i.e., with a part not of “like kind and quality.” Section 6 of the regulation reasonably requires notice to the insured of this possibility and allows him to accede to or reject the possibility. It is in conformity with the purpose of statutory regulation of insurance transactions.

V

Finally, appellants recognize the authority of the Insurance Commissioner to approve the insurance policies used in Wyoming. W.S. 26-15-110(a) provides in pertinent part:

“No basic insurance policy * * * shall be delivered or issued for delivery in this state unless the form is filed with and approved by the commissioner.”

The policies with which we are here concerned contain the language requiring the insurer to pay to repair or replace the property with “like kind and quality.” (Emphasis added.) Although the parties hereto argue at length with reference to the relative quality of the OEM and non-OEM parts, the word “kind” also has pertinence. It can mean “a specific variety, type or brand,” or it can mean “a fundamental nature or quality” — “an equivalent of that offered or received.” See Black’s Law Dictionary at 782 (1979) and Webster’s Third International Dictionary at 1243 (1966). In issuing Section 6 of the regulation, the Commissioner is specifying the meaning approved by him for the ambiguous word “kind,” i.e., that it had the meaning of a specific variety or brand, and that the insured could waive the provision of the policy requiring replacement by, or payment per an estimate on, the specific brand. In other words, Section 6 was only clarifying that which the Commissioner did when he exercised his authority under W.S. 26-15-110(a) to approve the policy — a clarification clearly within the Commissioner’s power.

In summary, promulgation of Section 6 of the regulation was a reasonable exercise of the authority given to the Commissioner by the indicated statutes. It set forth a reasonable requirement furthering the purpose of the Insurance Code, i.e., to assure fair and equitable insurance transactions.

SECOND ISSUE: IMPAIRMENT OF CONTRACTUAL OBLIGATIONS BY SECTION 6 OF THE REGULATION

Article 1, Section 35 of the Wyoming Constitution provides:

“No ex post facto law, nor any law impairing the obligation of contracts, shall ever be made.” ¹¹

Again, the constitutionality of Section 6 of the regulation under Article 1, Section 35 of the Wyoming Constitution can rest on more than one rationale.

I

Section 6 of the regulation does not impair a contractual obligation. Obviously, such section is not an impairment on insurance policies issued subsequent to the effective date of the regulation, i.e., subsequent to July 1988. See cases under 16A Am.Jur.2d, Constitutional Law, § 689 (1979). That section reads:

“Although a statute tending to impair the obligation of a contract is inoperative as to contracts existing at the time of its passage, it may nevertheless be valid and operative as to future contracts. The provision of the Constitution which declares that no state shall pass any law impairing the obligation of contracts does not apply to a law enacted prior to the making of a contract the obligation of which is claimed to be impaired, but only to a statute of a state enacted after the making of the contract. The obligation of a contract cannot properly be said to be impaired by a statute in force when the contract was made, for in such cases it is presumed that it was made in contemplation of the existing law. The state, therefore, may legislate as to future contracts as it sees fit, and accordingly, if a law is prospective only, it is — so far as the guaranty of obligation of contracts is concerned — valid.”

See also Application of Hagood, 356 P.2d 135, 138 (Wyo.1960).

Most automotive insurance contracts are for a six month term. Accordingly, only a limited number of claims, if any — those made under policies in force on the effective date of the regulation — are subject to appellants’ position on this issue. With reference to the limited number of claims made under policies in force prior to the effective date of the regulation, there is no impairment since Section 6 of the regulation did not change the vested rights — the duties and obligations of the parties— which existed prior to enactment of Section 6 of the regulation. The contract required appellants to replace the part with, or estimate the value of it on, one of “like kind and value.” Section 6 of the regulation does not change this requirement. If anything, it relaxes the obligation of the appellants by allowing replacement by, or estimate on, a part of a different kind (“kind” meaning “brand”) with consent of the insured. Section 6 of the regulation clarifies the language of the contract. It does not change such language. Thus, it does not “impair” the contract obligations.

Without consideration of the words “like kind” and directing attention only to the words “like value,” the evidence at the hearing reflects the difficulty in determining the relative value between the OEM part and the non-OEM part. Appellants’ contention is that only it should determine whether or not the replacing non-OEM part is of equal, greater or less value than the replaced OEM part. Section 6 of the regulation simply places that decision with the insured along with the ability to waive any difference if one exists. Such furthers a fair and equitable settlement of a claim, and it provides for the receipt by the insured of the benefit of his bargain, as noted by the district court.

II

Section 6 of the regulation is reasonable exercise of the police power of the State for the promotion of the safety and welfare of those subject to its jurisdiction. As such, it cannot constitute an impairment of contracts.

“The police power can be generally described as a government’s ability to regulate private activities and property usage without compensation as a means of promoting and protecting the public health, safety, morals and general welfare. See Weber v. City of Cheyenne, 55 Wyo. 202, 97 P.2d 667, 670 (1940). * * ⅜

⅛ ⅝ ⅝ ⅜: H ⅜

“The legitimate objectives of the police power are loosely characterized as being public in nature and the potential range is very broad. See Hawaii Housing Authority v. Midkiff 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984); Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954).”

Cheyenne Airport Board v. Rogers, 707 P.2d 717, 726-27 (Wyo.1985). See citations in 16A C.J.S., Constitutional Law, § 322 (1984), the introductory paragraph of which reads:

"The state, through its legislature or other properly authorized agency, can prescribe reasonable regulation within the scope of its police power for the conduct of corporate business without impairing the obligation of contracts as they appear in the charters or franchises of the corporations to which they apply.”

And see citations in 16A Am.Jur.2d, supra at § 405, which reads in part:

“The contract clause of the Constitution does not restrict the power of the state to legislate in the interest of the morals, health, and safety of the public, notwithstanding that one or more of these factors may be involved in contracts of various kinds. Rights and privileges arising from contracts are subject to regulation for the protection of the public health, safety, and morals, in the same sense and to the same extent as is all property, whether owned by natural persons or corporations. Indeed, the principle is frequently stated that all contracts are made subject to the paramount authority of the state to safeguard the vital interests of its people, and all contracts made with reference to any matter that is subject to regulation under the police power must be understood as made in reference to the possible exercise of that power. It follows that not all police legislation which has the effect of impairing a contract is obnoxious to the constitutional prohibition as to impairment; a statute passed in the legitimate exercise of the police power will be upheld by the courts, although it incidentally destroys existing contract rights. Thus, the economic interests of the state may justify the exercise of its protective power notwithstanding interference with existing contracts. The underlying principle is that if the legislature has no power to alter its police laws when contracts will be affected, then the most important and valuable reforms may be precluded by the simple device of entering into contracts for the purpose of doing that which otherwise may be prohibited; the authority of the legislature, in the exercise of its police powers, cannot be limited or restricted by the provisions of private contracts between individuals, or between individuals and corporations.”

The nature of the insurance business makes regulation of it more necessary than is required for many other businesses. It is extensively regulated under the police power in Wyoming through statute ¹² and through delegation of such power to appel-lee ¹³ as reflected supra under the first issue. That Section 6 of the regulation is a reasonable exercise of the police power is also reflected supra under the first issue. As noted supra, the district court found that “there is substantial evidence of record to support a distinction between OEM and non-OEM parts.” The potential for substitution of an inferior part in repair, or in an estimate for repair of a vehicle, makes Section 6 of the regulation reasonable. It promotes and protects the safety and welfare of the insured. It promotes proper performance under the contract, i.e., receipt by the insured of the benefit of his bargain. It does not prevent the use of non-OEM parts, but allows their use only with the consent of the insured. Even if not of the same “kind” (brand), the insured can consent to use of the non-OEM part thereby expressing belief of its material soundness, of its fit, of its ability to resist rust, etc. Section 6 of the regulation is a reasonable exercise of police power for the safety and welfare of the insured-consumer.

THIRD ISSUE: REASONABLE RELATIONSHIP BETWEEN SECTION 6 OF THE REGULATION AND ITS PURPOSE

That previously said with reference to the first two issues reflects that Section 6 of the regulation does have a “rational connection between the facts found and the choice made.” It is “reasonably directed to the accomplishment of the purposes.” It thus satisfies the “necessary element of due process of law.”

Appellants cite Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Company, 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) and 2 Am.Jur.2d, Administrative Law § 303 (1962) with reference to those requirements, but appellants argue the applicability of the requirements only on the basis that Section 6 of the regulation is no more than “an interference in market decisions between OEM and non-OEM parts.” The authorities cited by appellants require the administrative rule to be “reasonable.” The reference to 2 Am. Jur.2d, supra, concerns the reasonable requirement. It is followed by § 304, which reads:

“The requirement of reasonableness of an administrative regulation means no more and no less than that the regulation must be based upon reasonable grounds — that is, it must be supported by good reasons. The reasonableness of rules and regulations, and exemptions therein, is determined by their relationship to the statutory scheme they are designed to supplement, protect, and enforce. Reasonableness is determined in view of the stated objectives of the legislation, and if a regulation is within the purpose of the statute it is reasonable.

“Whether a regulation is reasonable depends on the character or nature of the condition to be met or overcome, and the nature of the subject matter of a rule may affect its reasonableness. Thus, the regulation of certain activities involving mere privilege, such as the sale of intoxicating liquor or the conduct of horse racing, is accorded liberal judicial support, and the court is slow to find such regulations unreasonable.

“An administrator has a large range of choice in determining what regulations or standards should be adopted. It is not necessarily a valid objection to his choice that another choice could reasonably have been made, that experts dis[a]greed over the desirability of a particular standard, and that some other method of regulation would have accomplished the same purpose and would have been less onerous. It is enough that the administrator has acted within the statutory bounds of his authority, and that his choice among possible alternatives adopted to the statutory end is one which a rational person could have made.

“In order to set aside a regulation, it must be clearly unreasonable. If reasonable minds may well be divided on the question, the administrator must be upheld. It must be shown that no reasonable administrator would have made such a regulation and that it is so lacking in reason that it is essentially arbitrary.”

As set out supra under the first two issues, Section 6 of the regulation is primarily directed to protection of the insured, to allow the insured to receive the benefit of his bargain, to further define the ambiguous word “kind” in the policy as approved by the Commissioner, and to promote the safety and welfare of the public. As such, it has a reasonable relation to the purpose for which made.

FOURTH ISSUE: SUBSTANTIAL EVIDENCE TO SUPPORT SECTION 6 OF THE REGULATION

Although appellants listed this issue in their brief, they did not present any argument with reference to it. We will not consider issues not supported by proper citation of authority or by cogent argument. Trout v. Wyoming Oil and Gas Conservation Commission, 721 P.2d 1047 (Wyo.1986); Elder v. Jones, 608 P.2d 654 (Wyo.1980); Armed Forces Cooperative Insuring Association v. Department of Insurance, 622 P.2d 1318, 1331 (Wyo.1980) appeal dismissed 454 U.S. 1130, 102 S.Ct. 985, 71 L.Ed.2d 284 (1982).¹⁴

Affirmed.

Footnotes

1

. The term “non-OEM” refers to after market parts manufactured by someone other than the original manufacturer of the vehicle part.

2

. Section 6 of the regulation provides:

“Consent. No insurer shall directly or indirectly require the use of non-OEM after market parts in the repair of an automobile nor shall any insurer accept any estimate or authorize any repair of an automobile unless the consumer is advised that he or she is not required to accept non-OEM after market parts in the repair of the vehicle and consents in writing to the use of those parts before repairs are made."

3

. W.S. 26-13-102 provides:

"No person shall engage in this state in any trade practice which is defined in this article or as is determined pursuant to this article to be an unfair method of competition or an unfair or deceptive act or practice in the business of insurance.”

4

. The district court’s judgment will be affirmed on appeal if sustainable on any legal ground appearing in the record. Ely v. Kirk, 707 P.2d 706 (Wyo.1985); People v. Fremont Energy Corp., 651 P.2d 802 (Wyo.1982).

5

. W.S. 26-13-124 provides:

"(a) A person is considered to be engaging in an unfair method of competition and unfair and deceptive act or practice in the business of insurance if that person commits or performs with such frequency as to indicate a general business practice any of the following unfair claims settlement practices:

"(i) Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue;

"(ii) Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies;

"(iii) Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies;

"(iv) Refusing to pay claims without conducting a reasonable investigation based upon all available information;

"(v) Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed;

"(vi) Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear;

"(vii) Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds;

"(viii) Attempting to settle a claim for less than the amount to which a reasonable person would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application;

“(ix) Attempting to settle claims on the basis of an application which was altered without notice to, or knowledge or consent of, the insured;

"(x) Making claims payments to insured or beneficiaries not accompanied by a statement setting forth the coverage under which the payments are being made;

"(xi) Making known to insured or claimants a policy of appealing from arbitration awards in favor of insured or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration;

"(xii) Delaying the investigation or payment of claims by requiring an insured, claimant or the physician of either to submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information;

"(xiii) Failing to promptly settle claims, where liability has become reasonably clear, under one (1) portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage; or

"(xiv) Failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement.”

6

. See supra note 5.

7

. See supra note 5.

8

. See supra note 3.

9

. W.S. 26-13-116 provides in pertinent part:

"(a) If the commissioner believes that any person in conducting an insurance business in this state is engaging in any method of competition or in any act or practice, not defined in this chapter, which is unfair or deceptive and that a proceeding by him in respect thereto would be in the public interest, after a hearing in which the person charged receives a notice of the hearing and of the charges against him, the commissioner shall make a written report of his findings of fact relative to the charges and serve a copy thereof upon the person and any intervenor at the hearing.”

10

. See supra note 3.

11

. A similar provision is contained in Article 1, Section 10 of the United States Constitution:

"No State shall * * * pass any * * * Law impairing the Obligation of Contracts.”

12

. See Title 26, Insurance Code, i.e., W.S. 26-1-101 through 26-41-103.

13

. 2 Am.Jur.2d, Administrative Law, § 298 (1962) states:

"An act of an administrative agency which is legislative in character and has the force of a statute is subject to the same tests as to its validity as an act of the legislature intended to accomplish the same purpose, whether such acts are rules or regulations, or general orders. This is true of regulations or orders in the exercise of the police power, in conflict with federal law, impairing the obligation of contract, or involving penalties or criminal liability. Thus there are applicable the rules in regard to presumption of validity and partial or entire invalidity; and, just as in individual cases hardship and loss may flow from legislative acts which are nevertheless valid, so administrative regulations may also operate."

14

. In addition to noting this fact, appellee referred to the holding in Tri-State Generation and Transmission Association, Inc. v. Environmental Quality Council, 590 P.2d 1324 (Wyo. 1979) to the effect that the substantial evidence test does not apply to rule making decisions.