J.T.W. v. Centre Insurance

KENNEY, J. Appellant, J.T.W., 1 appeals the decision of the Circuit Court for Charles County dismissing his petition for judicial review of a decision by the Maryland Insurance Administration in favor of appellee, Centre Insurance Company. He presents one question for our review: Did the Circuit Court Judge Err in Dismissing Appellant’s Petition for Judicial Review as Untimely? For the following reasons, we shall vacate the circuit court’s judgment. FACTUAL AND PROCEDURAL HISTORY In April 2002, a tornado swept through La Plata in Charles County, damaging J.T.W.’s home and destroying various items of personal property.

Disputes about the proper amount of coverage under J.T.W.’s insurance policy with Centre resulted in a settlement agreement in June 2003. In October 2003 and March 2004, J.T.W. filed complaints with the Maryland Insurance Administration (“the Administration”), challenging Centre’s compliance with the settlement agreement and the terms of the insurance policy. The Administration determined that Centre had not violated the Insurance Code. After J.T.W. requested hearings on the Administration’s decision, the mat ⁴⁹⁵ ters were consolidated and referred to the Office of Administrative Hearings (“OAH”).

After a hearing on July 28-29, 2004, the administrative law judge upheld J.T.W.’s complaint in part. OAH informed J.T.W. of the administrative law judge’s decision in a letter dated October 14, 2004. The letter stated that it superseded an earlier letter, and that the enclosed decision was “the final decision of the Maryland Insurance Administration.” The letter informed J.T.W. of his right to judicial review in the circuit court: Any party aggrieved by this Final Decision contained in the Insurance Commissioner’s Order on Hearing may file an appeal to the Circuit Court for Baltimore City, or if the party is an individual, to the circuit court where the individual resides. The appeal must be filed within thirty (30) days of mailing or delivery by filing an original and a copy of a petition for judicial review with the circuit court.

The administrative law judge’s decision also included a statement of “review rights”: A party aggrieved by this final decision of the Maryland Insurance Administration may file a petition for judicial review with the Circuit Court for Baltimore City, or if the party is an individual, to the circuit court where the individual resides, within thirty (30) days after delivery of the decision. The letter in which the order was enclosed was mailed to J.T.W.’s La Plata address. It is undisputed that OAH mailed the letter and order on October 14, 2004, and that they were received by J.T.W. on October 20, 2004. J.T.W. filed a petition for judicial review in the Circuit Court for Charles County on November 19, 2004.

The Maryland Insurance Commissioner joined the case as a party by filing a response to J.T.W.’s petition. Centre moved to dismiss J.T.W.’s appeal on the basis that his petition for judicial review was untimely. Centre contended that because OAH had mailed the letter and decision on October 14, but J.T.W. had not filed his petition for judicial ⁴⁹⁶ review until November 19, his filing failed to comply with the thirty day limit on time to appeal. In response, J.T.W. stated that he no longer resided at the La Plata address, which he described as a “vacant lot.” According to J.T.W., he did not receive the letter and decision until October 20, when he retrieved the mail from the La Plata address.

He contended that the thirty day limit began to run on that date, not the date of mailing. The court held a hearing on April 14, 2004. J.T.W. argued that the thirty day limit began to run on the date of “delivery,” i.e., the date he received the administrative law judge’s decision. As authority, he pointed to statements in the letter and decision indicating that he had thirty days from the date of “delivery” to file a petition for judicial review.

He also contended that his interpretation of the time limit was in accord with the relevant statutory law. The court noted that statements by the administrative law judge were not authoritative on the point, and stated that the relevant statute “clearly state[s] 30 days after service. Service is mailing under the code.” The court stated that it had no jurisdiction when there was an untimely petition for judicial review. Accordingly, it granted Centre’s motion to dismiss, issuing an order to that effect the same day.

J.T.W. noted this appeal on April 28, 2004. DISCUSSION Maryland Rule 7-202(a) states that “[a] person seeking judicial review [of an agency decision] shall file a petition for judicial review in a circuit court authorized to provide the review.” Maryland Rule 7-203(a) states: Except as otherwise provided in this Rule or by statute, a petition for judicial review shall be filed within 30 days after the latest of: (1) the date of the order or action of which review is sought; (2) the date the administrative agency sent notice of the order or action to the petitioner, if notice was required by law to be sent to the petitioner; or ⁴⁹⁷ (3) the date the petitioner received notice of the agency’s order or action, if notice was required by law to be received by the petitioner. J.T.W. contends that in this case “notice was required by law to be received by the petitioner,” and thus, the date he received the Administration’s decision triggered the thirty day time limit. Md. Rule 7—203(a)(3).

Not surprisingly, Centre and the Commissioner argue that “notice was required by law to be sent to the petitioner,” and therefore the date of mailing triggered the limit on time for the filing of a petition for judicial review. Md. Rule 7—203(a)(2). We agree with J.T.W. that the limit on his time to file began to run the date he received the administrative law judge’s decision and order. The time limit on the filing of a petition for judicial review of a decision of the Maryland Insurance Commissioner is provided for in Md.Code (1995, 2003 RepLVol.), § 2-215(d) of the Insurance Article (“Ins.”), which states: To take an appeal, a person shall file a petition for judicial review with the appropriate circuit court within 30 days after: (1) the order resulting from the hearing was served on the persons entitled to receive it; (2) the order of the Commissioner denying rehearing or reargument was served on the persons entitled to receive it; or (3) the refusal of the Commissioner to grant a hearing.

Thus, in order to obtain judicial review, J.T.W. was required to file a petition for judicial review within thirty days following service of the order resulting from the hearing. Ins. § 2-215(d)(1). In Rockwood Cas. Ins.

Co. v. Uninsured Employers’ Fund, 385 Md. 99 , 867 A.2d 1026 (2005), the Court of Appeals concluded that the term “serve” implies actual receipt. Rock-wood involved application of Ins. § 19-406(a), which required that, to cancel a workers’ compensation insurance policy, the insured must “serve[ ] on the employer, by personal service or registered mail addressed to the last known address of the ⁴⁹⁸ employer, a notice of intention to cancel the policy.” Ins. § 19-406(a) (1997). The Court of Appeals determined that cancellation of a policy could be accomplished only by the insured’s actual receipt of the notice: Section 19-406 of the Insurance Article requires the insurer to serve the employer with notice and gives the insurer two ways to accomplish service: personal service or service by certified mail. To “serve” is defined as, “[t]o make legal delivery of (a notice or process) ... [t]o present (a person) with a notice or process as required by law....” Black’s Law Dictionary 1399 (8th ed.2004).

The term implies actual receipt. If the Legislature intended some lesser standard, it could have just required the insurer to send or mail the notice to the employer by regular mail. Instead, it requires the insurer to serve the notice by personal delivery or by certified mail. Id. at 109-110, 867 A.2d 1026 (footnote omitted).

The requirement that a petition for judicial review be filed within thirty days after the order “was served on the persons entitled to receive it,” implies that the party must have actually received the order. Ins. § 2-215(d)(l). Consequently, “notice [is] required by law to be received by the petitioner,” and the thirty day limit begins to run “the date the petitioner receive[s] notice of the agency’s order or action.” Md. Rule 7-203(a)(3). Centre cites to Kim v. Comptroller of the Treasury, 350 Md. 527 , 714 A.2d 176 (1998), which involved application of Maryland Rule 7-203(a).

In Kim , the Maryland Tax Court mailed its order to Kim pursuant to a statute requiring that “[t]he clerk of the Tax Court shall certify the order in an appeal and mail a copy of the certified order to: (1) each party to the appeal; and (2) the tax determining agency from which the appeal is taken.” Md.Code (1988, 1997 Repl.Vol.), § 13-529(c) of the Tax-General Article (“Tax-Gen.”). The Court stated: In the instant case, the Tax Court was required by law to send its written order to Kim and the Comptroller.... Therefore, under the statute and Rule 7-203(a)(2), the rele ⁴⁹⁹ vant date governing the timeliness of an action for judicial review was the date the written order of the Tax Court was filed and mailed to the parties.... Thus, Kim’s petition for judicial review should have been filed within 30 days after [the date of mailing].

Kim, 350 Md. at 533 , 714 A.2d 176 . The result in Kim does not dictate the outcome here because, whereas the statute in Kim required the clerk to “mail a copy of the certified order,” Tax-Gen. § 13—529(c), the controlling statute in this case states that the time limitation begins to run when the order “was served on” the parties. Ins. § 2—215(d)(1). Section 2—214(b)(2) of the Insurance Article states that, following a hearing before the Commissioner 2 and the issuance of an order resulting from the hearing, 3 “[t]he Commissioner shall serve a copy of the order on the same persons that were served notice of the hearing.” Insurance § 2-204(c) provides for service of orders or notices by the Commissioner: “An order or notice may be served on a person by: (1) mailing it to the person at the last known principal place of business of the person, as listed in the records of the Commissioner; or