Coomes v. Maryland Insurance Administration

Berger, J. This appeal arises from several decisions of the Maryland Insurance Commissioner (“Commissioner”), including the Commissioner’s decision to: (1) grant summary disposition in favor of the Maryland Insurance Administration (“MIA”) against Elizabeth Coomes (“Coomes”); (2) affirm the MIA’s Amended Order revoking Coomes’s producer’s license for violations of various provisions of the Insurance Article; and (3) assess an administrative penalty of $1,250.00. The relevant facts in this case surround Coomes’s “voluntary surrender” of her Virginia producer’s license and whether this “surrender” constitutes an “adverse action” requiring Coomes to report the surrender to the MIA. On appeal, Coomes presents five issues for our review, 1 which we rephrase as follows: ²⁹¹ 1. Whether the Commissioner erred as a matter of-law by finding that Coomes’s voluntary surrender of her Virginia insurance producer’s license was an “adverse administrative action” requiring her to report it to the Maryland Insurance Administration. 2.

Whether there is substantial evidence in the record to support the Commissioner’s conclusion as a matter of law that Coomes violated Md. Code (2002, 2011 Repl. Vol.), § 10-126(a)(l), (6), (12), (13), and (f) of the Insurance Article (“I.A.”). 3. Whether Double Jeopardy applies to shield Coomes from having her Maryland producer’s license revoked after previously voluntarily surrendering her Virginia producer’s license based on the same underlying set of facts. 4. Whether the circuit court abused its discretion under Md. Code (1984, 2014 Repl.

Vol., 2016 Supp.), § 10-222(f)(2) of the State Government Article (“S.G.”) when it denied Coomes’s motion to offer additional evidence on the basis that the evidence was not material. BACKGROUND In 2004, Elizabeth Coomes became a licensed insurance producer in the Commonwealth of Virginia. That same year, the State of Maryland issued a producer’s license to Coomes as a nonresident producer. In September of 2011, the Virginia Department of Insurance (“VDI”) began investigating Coomes for alleged acts of misappropriating two checks sent to her in error by Anthem Blue Cross and Blue Shield of Virginia (“Anthem”).

Prior to September 2011, Anthem mistakenly sent two checks totaling approximately $20,000 to Coomes’s agency’s ²⁹² home office in Leesburg, Virginia. Both checks were made out to “EBCA” (Employee Benefit Corporation of America). Coomes, or a member of her staff, deposited the checks into her agency’s operating account. EBCA and Anthem notified Coomes that the checks were sent to her agency in error on or around August 18, 2011, and they requested the return of the money since the checks were deposited.

Coomes testified at the hearing before the Commissioner that the agency routinely received commission checks from Anthem and other insurers, and that by the time Anthem demanded repayment for the checks sent in error, she had already spent the money on various business expenses. She further testified that after she informed Anthem that she was not able to repay the money in one lump sum, Anthem refused to take the money out of her future commission payments. Thereafter, she and Anthem came to an agreement for Coomes to repay Anthem immediately with approximately $6,000 to $10,000 cash on hand, and the remainder with a small personal loan. A few days later, however, Anthem filed a complaint with VDI and Coomes did not repay the money immediately.

The VDI began investigating Coomes’s conduct in September of 2011 based on allegations that Coomes had misappropriated money through acts of fraud, deception, or dishonesty. The investigation by the VDI addressed Anthem’s accusations that Coomes had committed fraud, conversion and had forged endorsements on the checks. Thereafter, Coomes repaid all but $2,000 of the money owed with a series of three checks sent in February and March of 2012. Coomes, however, refused to repay the remaining $2,000, averring that Anthem owed her the money for unrelated advertising co-op costs under her contract with Anthem.

The VDI’s investigation ultimately was resolved without a hearing when Coomes agreed to a “voluntary surrender” of her Virginia producer’s license. Coomes executed the voluntary surrender agreement with the VDI on or around December 10, 2012, to be effective March 11, 2013. 2 In the agree ²⁹³ ment, Coomes acknowledged that she voluntarily surrendered her Virginia producer’s license “in lieu of a hearing before the State Corporation Commission, which [Coomes] understand^] may result in revocation or suspension of [Coomes’s] authority as an insurance agent or consultant, as well as possible monetary penalty.” (Emphasis added). Coomes voluntarily surrendered “all authority ... to conduct the business of insurance or insurance consulting in the Commonwealth of Virginia.” The agreement further provided that “[i]n consideration of the Commission’s acceptance of [the] voluntary surrender of [her] license authority in lieu of a hearing before the Commission ...” Coomes agreed not to apply to “transact the business of insurance in Virginia for a period of one year” from the date of the agreement, and only after she had resolved all of her “financial obligations resulting from [her] insurance activities.” Further, the language of the agreement refers to the agreement as an “action ... taken of [Coomes’s] own volition.” (Emphasis added). Finally, Coomes acknowledged that she understood] that notification of this matter, which may include personal information about [Coomes] including, but not limited to [Coomes’s] name, residence address, social security number ..., date of birth, license and appointment status, and investigation or disciplinary action summary data, may be reported to the National Association of Insurance Commissioners and to other state insurance regulatory authorities or other interested parties.

Thereafter, in March of 2013, Coomes requested through a letter to the MIA that her residential address be updated and that her Maryland license be changed from nonresident producer to resident producer. In the letter, Coomes stated “I have notified the Virginia Insurance Bureau of my address change and have requested a voluntary surrender of my Virginia resident license.” Coomes did not include in the letter any indication of an investigation by the VDI into her mishan ²⁹⁴ dling of money, nor did Coomes disclose that she had agreed to voluntarily surrender her license in lieu of facing a hearing to contest the allegations arising from Anthem’s complaint. Coomes testified that she did not understand the voluntary surrender to be an “adverse violation” and did not know that there was a requirement that she inform the MIA of the VDI’s actions. Procedural History Pursuant to a revised order issued June 30, 2014, 3 the Maryland Insurance Commissioner (“the Commissioner”) issued an order finding the voluntary surrender agreement constituted an “adverse administrative action” that was taken against Coomes.

The Commissioner found Coomes to be in violation of I.A. §§ 10—126(a)(1), (6), (12), (13), and (f), and therefore, subject to discipline. The Commissioner revoked Coomes’s license to act as an insurance producer in the State of Maryland and ordered her to pay an administrative penalty of $1,250.00 within 30 days. The pertinent provisions of I.A. § 10-126 are as follows: (a) The Commissioner may deny a license to an applicant under §§ 2-210 through 2-214 of this article, or suspend, revoke, or refuse to renew or reinstate a license after notice and opportunity for hearing under §§ 2-210 through 2-214 of this article if the applicant or holder of the license: (1) has willfully violated this article or another law of the State that relates to insurance; [[Image here]] (6) has committed fraudulent or dishonest practices in the insurance business; [[Image here]] ²⁹⁵ (12) has failed or refused to pay over on demand money that belongs to an insurer, insurance producer, or other person entitled to the money; [[Image here]] (13) has otherwise shown a lack of trustworthiness or competence to act as an insurance producer; [[Image here]] (f)(1) Within 30 days after the final disposition of the matter, an insurance producer shall report to the Commissioner any adverse administrative action taken against the insurance producer: (i) in another jurisdiction', or (ii) by another governmental unit in this State. (2) The report shall include a copy of the order, consent order, and any other relevant legal documents.

I.A. § 10-126(a)(l), (6), (12), (13) and (f) (emphasis added). Coomes requested a hearing on the Commissioner’s order, pursuant to I.A. § 2-210 and COMAR 31.02.01.03. Coomes appeared before a Commissioner on November 5, 2014 on the MIA’s Motion for Summary Disposition, during which Coomes testified but did not call any other witnesses. On December 9, 2014, the Commissioner issued a revised final order granting the MIA’s Motion for Summary Disposition, and finding that Coomes violated I.A. §§ 10-126(a)(l), (6), (12), (13), and (f).

The Commissioner ordered that Coomes’s license be revoked and that she pay an administrative penalty of $1,250.00 within forty-five days of the order. On January 7, 2015, Coomes filed a petition for judicial review in the Circuit Court for Baltimore City. A hearing was held before the circuit court on November 9, 2015, and on November 30, 2015, the circuit court affirmed the decision of the MIA. For the reasons explained below, we affirm the Circuit Court for Baltimore City. ²⁹⁶ DISCUSSION I. Standard of Review When we review the decision of an administrative agency, such as the MIA, “we assume the same role as the [cjircuit [c]ourt ..., and ‘limit our review to the agency’s decision.’ ” McClanahan v. Washington Cty.

Dep’t of Soc. Servs., 445 Md. 691, 699 , 129 A.3d 293 (2015) (quoting Cosby v. Dep’t of Human Res., 425 Md. 629, 637 , 42 A.3d 596 (2012)); see also People’s Counsel for Baltimore Cty. v. Surina, 400 Md. 662, 681 , 929 A.2d 899 (2007) (“When ... any appellate court reviews the final decision of an administrative agency ... the court looks through the circuit court’s ... decisions, although applying the same standards of review, and evaluates the decision of the agency.”) (citing Mastandrea v. North, 361 Md. 107, 133 , 760 A.2d 677 (2000)). In reviewing administrative adjudicatory decisions, our task is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law. [[Image here]] [A] court’s task on review is not to substitute its judgment for the expertise of those persons who constitute the administrative agency. Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency.

Thus, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. Furthermore, the expertise of the agency in its own field should be respected. Maryland Aviation Admin. v. Noland, 386 Md. 556, 571-72 , 873 A.2d 1145 (2005). Even if we grant some degree of deference to the agency’s legal interpretations, we must correct a legal conclusion that is erroneous.

McClanahan, 445 Md. at 700 , 129 A.3d 293 (citing Cosby, 425 Md. at 639 , 42 A.3d 596 ). Notwithstand ²⁹⁷ ing “some deference” to “an agency’s legal interpretation of the statute it administers,” Taylor v. Harford Cnty. Dep’t of Social Servs., 384 Md. 213, 222 , 862 A.2d 1026 (2004), issues of statutory interpretation are legal issues for which the standard of review is de novo. Falls Road Community Ass’n v. Baltimore Cnty., 437 Md. 115, 134 , 85 A.3d 185 (2014).

Pursuant to COMAE 31.02.01.07.G, which regulates the hearing procedure within the MIA, “[a] party may move for summary decision on any appropriate issue in the case.” COMAR 31.02.01.07(G). Like summary judgment, “[a] hearing officer may grant a proposed or final summary decision if the hearing officer finds that: (a) There is no genuine issue of material fact; and (b) [a] party is entitled to prevail as a matter of law.” Id.] cf. Md. R. Civ. Proc. 2-501(f). “For summary judgment purposes, ‘[a] material fact is a fact the resolution of which will somehow affect the outcome of the case.’” Rogers v. Home Equity USA, Inc., 228 Md.App. 620, 635 , 142 A.3d 616 (2016) (quoting Pence v. Norwest Bank Minn., N.A., 363 Md. 267, 279 , 768 A.2d 639 (2001)). In this case, there were no issues of material fact in dispute.

II

The Commissioner Did Not Err as a Matter of Law by Finding that Coomes’s Voluntary Surrender of her Producer’s License was an “Adverse Administrative Action” and Failure to Report the Action Violated I.A. § 10~126(a)(13) and (f). The Commissioner found that Coomes “failed to report to the Commissioner [an] adverse administrative action taken against” her when she did not report her agreement to voluntarily surrender her license in lieu of a hearing before the State Corporation Commission within 30 days. As a result, Coomes violated I.A. § 10-126(f). By failing to report the administrative action to the MIA, the Commission found that Coomes also violated I.A. § 10-126(a)(13), which provides that a license may be revoked if the license holder “has otherwise shown a lack of trustworthiness or competence to act as an insurance producer.” ²⁹⁸ In this appeal, Coomes raises several arguments.

The question we must answer, however, is whether the Commissioner’s conclusion that Coomes failed to report an “adverse administrative action” in violation of I.A. § 10—126(f) was based on an erroneous conclusion of law. In other words, we examine whether the VDI’s investigation and Coomes’s acceptance of the voluntary surrender agreement in lieu of a hearing constitutes an “adverse action” for purposes of I.A. § 10—126(f). If so, she was required to report the action and submit relevant legal documents; therefore, a failure to do so would constitute a violation of I.A. § 10—126(f). For the reasons explained herein, the investigation and subsequent voluntary surrender agreement in Virginia constitutes an “adverse administrative action” such that Coomes was required to report it, as well as submit a copy of the voluntary surrender agreement to the MIA.

Further, substantial evidence of Coomes’s actions leading to the Commissioner’s finding that Coomes violated I.A. § 10-126(f) also supported the Commissioner’s finding that Coomes had violated I.A. § 10—126(a)(13)—i.e., that Coomes “otherwise show[ed] a lack of trustworthiness or competence to act as an insurance producer.” I.A. § 10-126(a)(13). A. The Voluntary Surrender Agreement with the Virginia Department of Insurance Constituted an “Adverse Administrative Action” under I.A. § 10—126(f). In the Final Revised Order, the Commissioner concluded that there was “no genuine dispute as to the material facts relating to whether [Coomes] failed to report the Virginia Bureau action to the Commissioner as required by § 10-126(f).” As the Commissioner aptly framed the issue: [Tjhere is no factual dispute regarding whether [Coomes] reported the Virginia action to the Commissioner at any time; she did not. Thus, the question is whether the Virginia action was an adverse administrative action such that Respondent had an obligation to comply with § 10—126(f), which is a question of law. ²⁹⁹ Coomes’s arguments that her voluntary surrender of her producer’s license in Virginia was not an “adverse administrative action” revolve around two main points: (1) The plain language of the statute indicates that an evidentiary proceeding is required to constitute an “adverse administrative action”; and (2) the structure of I.A. § 10-126 and “the context of procedural due process jurisprudence” in which these terms are situated require a formal evidentiary proceeding to constitute an “adverse administrative action.” Coomes maintains that, based on the plain language, “where the revocation of an insurance producer’s license is involved, only a formal or informal proceeding that includes fact-finding and dispute resolution and results in an Order” constitutes an adverse action.

Thus, because “[a] voluntary surrender of a license does not involve either fact-finding or dispute resolution,” it must not be an “adverse administrative action” such that Coomes was required to report it. Coomes provides no authority, however, to support her contention that the terms “adverse” and “action” imply a fact-finding, evidentiary proceeding. When the General Assembly does not define precisely “a particular statutory term, we first look to the plain meaning of the term, and give that language its ‘ordinary and natural meaning [without] resort to subtle or forced interpretations’ ....” Bennett v. State Dep’t of Assessments & Taxation, 143 Md.App. 356, 368 , 795 A.2d 124 (2001) (citing Maryland-Nat’l Capital Park & Planning Comm’n v. Dep’t of Assessments & Taxation, 110 Md.App. 677, 689 , 678 A.2d 602 (1996), aff'd, 348 Md. 2 , 702 A.2d 690 (1997)) (alterations in original). Our interpretation of statutes often requires that we consider “the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense.” Bennett, supra, 143 Md.App. at 369 , 795 A.2d 124 (quoting Chesapeake Charter, Inc. v. Anne Arundel Cnty.

Bd. of Educ., 358 Md. 129, 135 , 747 A.2d 625 (2000)). The ordinary meaning of the term “adverse administrative action” ³⁰⁰ would encompass the facts of this case, namely Coomes’s agreement with the VDI to voluntarily surrender her producer’s license to end the investigation into her conduct and avoid a hearing that could result in the revocation of her license and other penalties. Even assuming the term “adverse administrative action” is ambiguous, we interpret the statute as a whole in a way that “avoids an illogical or unreasonable result, or one which is inconsistent with common sense.” Id. at 368, 795 A.2d 124 . The Commissioner rejected Coomes’s interpretation of I.A. § 10-126(f) in holding that: On a practical note, under Respondent’s theory, a producer with a Maryland license could always avoid regulatory oversight in Maryland for improper activities done in every other state by voluntarily giving up her license in that other state.

Coomes’s agreement to voluntarily surrender her producer’s license in lieu of a hearing for a minimum of one year and until she had repaid the money to Anthem clearly falls within the meaning of “adverse” as the word is used in the statute. The Commissioner highlighted a similar point: Applying the ordinary, popular understanding of the English language word “adverse,” [Coomes] giving up her producer’s license, a key requirement in her employment, for a year was adverse to her interests, and the Voluntary Surrender Agreement with the Virginia Bureau was a relevant legal document relating to that transaction under § 10-126(f). Notably, Coomes agreed to voluntarily surrender her license in lieu of a hearing, which could have resulted in the revocation of her Virginia license in addition to Coomes incurring fines. Within the agreement, Coomes acknowledged that, as a result of the surrender of her license, the VDI or others could notify “the National Association of Insurance Commissioners and other state insurance regulatory authorities or other interested parties” of the “investigation or disciplinary action summary data.” The reasonable interpretation of the ³⁰¹ terms of the agreement as a whole is that it was adverse in nature.

The agreement benefitted Coomes by allowing her to avoid hearings on her conduct, which could have resulted in the revocation of her license, rather than her agreement not to reapply for one year, as well as other fines and penalties. The Commissioner, therefore, found that Coomes “was required to report the matter to the Commissioner within 30 days of its final disposition under § 10—126(f).” We agree. Coomes’s additional reasons supporting her contention that the facts in the instant case did not constitute an “adverse administrative action” are equally unavailing. Coomes asserts that “the structure and context of Section § 10-126 supports the conclusion that the General Assembly intended to require the licensee to report only adjudicated ‘adverse administrative actions’ that include fact-finding and dispute resolution and result in an Order.” In the same vein, Coomes argues that the phrase “ ‘adverse administrative action’ arises in the context of procedural due process jurisprudence” and therefore requires an evidentiary proceeding.

Again, however, Coomes points to no legal authority for this contention, whether in the context of administrative proceedings or otherwise. Coomes does cite to a myriad of United States Supreme Court and out-of-state court eases in an attempt to support her contention that “the more significant the private interest involved, such as loss of livelihood, the more likely only a pre-deprivation, evidentiary hearing incorporating dispute resolution and [fact-finding] will be required to satisfy procedural due process .... ” Further, Coomes adds, “the failure to provide the requisite standard of procedural due process results in the invalidation of the administrative action revoking the license.” She continues, “[bjalancing the due process factors, it would appear that Petitioner’s interest in her livelihood is a paramount ... consideration ..., warranting not only a hearing prior to deprivation but also an adjudicatory hearing prior to deprivation.” As much emphasis as Coomes places on the importance of an evidentiary hearing, it is unclear whether Coomes is con ³⁰² cerned with the lack of an evidentiary hearing in the instant case below, or rather, as a result of Coomes’s agreement to voluntarily surrender her license in Virginia, which Maryland’s statute required Coomes to report to the MIA. Regarding the Virginia events, after the investigation began, Coomes was given the option to voluntarily surrender her license for a minimum of one year in lieu of a hearing on charges that the VDI could otherwise bring against her. Coomes, therefore, cannot now argue that because Coomes chose to bypass an evidentiary hearing in Virginia, “the administrative action revoking the license” is now “invalid.” Moreover, to the extent that Coomes, in this appeal, refers to the Commissioner’s revocation of Coomes’s Maryland license upon Summary Disposition in this case, Coomes had the opportunity and did participate in an evidentiary hearing before the Commissioner.

Assuming Coomes is concerned with the lack of an eviden-tiary hearing in Virginia, her contention is that, because Coomes opted to voluntarily surrender her license, the action was not an “adverse action” such that she was not required report it. Simply put, Coomes’s argument requires us to read more into the statute than is evident by its plain, ordinary meaning. See Stickley v. State Farm Fire & Cas. Co., 431 Md. 347, 359 , 65 A.3d 141 (2013) (“In construing the plain language, a court may neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute; nor may it construe the statute with forced or subtle interpretations that limit or extend its application.”) (quoting Bowen v. City of Annapolis, 402 Md. 587, 613 , 937 A.2d 242 (2007)).

Nowhere in the language of the statute does it explicitly or implicitly require that a hearing and final order occur alongside an “adverse administrative action” in order for the action to constitute one that the license-holder must report. Critically, Coomes provides no authority to support this contention. No dispute of material fact exists with regard to Coomes’s failure to report the voluntary surrender agreement to the MIA. Coomes, herself, admits that she did not report the investigation or her agreement to surrender her Virginia ³⁰³ producer’s license as a result of her handling of the two checks sent to her in error.

The Commissioner did not err in finding that the voluntary surrender of Coomes’s license in Virginia constitutes an “adverse administrative action” under I.A. 10-126(f). Substantial evidence within the record supports the Commissioner’s conclusion that Coomes failed to report “an adverse administrative action” within 30 days and failed to include with the report a copy of the voluntary surrender agreement as a “relevant legal document.” I.A. § 10—126(f). To be sure, the MIA could clarify its standards for determining whether a particular event is an “adverse action” such that it must be reported under I.A. § 10-126(f). As Coomes points out, counsel for the agency noted, [i]n Virginia, a licensee whose license is not under investigation by the Bureau may simply withdraw from the business of insurance ...

Such an action is not adverse to the licensee .... However, because her license was under investigation, Ms. Coomes