Lumbermen's Mutual Casualty Co. v. Insurance Commissioner

ELDRIDGE, Judge. This opinion encompasses three separate administrative proceedings which were consolidated for purposes of judicial review. In all three cases, insurance companies sent ²⁵¹ notices of proposed nonrenewal of automobile liability insurance policies; the insureds protested and requested hearings before the Insurance Commissioner; after hearings, the Insurance Commissioner disallowed the proposed actions and ordered the insurers to renew the policies, and the insurers sought judicial review. 1 The controversy in each of the cases is the same. It involves two distinct sets of statutory provisions concerning automobile liability insurance ratemaking and the cancellation or nonrenewal of automobile liability insurance policies.

Before setting out the facts of the cases, we shall briefly review the pertinent statutory sections. I. Section 242 of the Insurance Code 2 specifically deals with rates, rate making, rating plans, etc., in certain lines of insurance, including automobile liability insurance. Section 242(c) provides that all rates shall be made in accordance with the principles set forth in that section. Subsection (c)(1) states that in ratemaking, consideration shall be given to various factors, including loss experience, expenses, and underwriting profit.

Subsection (c)(2) mandates, inter alia, that rates not be “inadequate.” Different classifications reflecting variations among risks, having a demonstrable effect on losses, are authorized by subsection (c)(4). Under § 242(c)(6), the Insurance Commissioner is authorized to disapprove of rate filings unless the filer “demonstrates that the proposed rate is not excessive or inadequate or unfairly discriminatory.” 3 ²⁵² Section 242(d) contains detailed requirements concerning the filing of rates and rating plans with the Insurance Commissioner, including the filing of “every modification of” any “class rate, rating schedule or rating plan.” 4 Ex ²⁵³ tensive provisions relating to the approval or disapproval of filings are set forth in § 242(f). Section 242B of the Insurance Code provides for judicial review of the Commissioner’s decisions under § 242. The other set of statutory provisions relevant to these cases is contained in §§ 234A through 240H of the Insurance Code and concerns underwriting practices, discrimination in underwriting, cancellation or nonrenewal of policies, and related matters.

The two pertinent sections are 234A and 240AA. Section 234A sets forth substantive underwriting requirements for insurance risks, including automobile insurance risks. 5 Thus it prohibits refusals to underwrite, cancella ²⁵⁴ tions of policies, or nonrenewals of policies based in whole or in part on race, color, creed, sex, or for any arbitrary, capricious or unfairly discriminatory reason. Prior to 1974, the thrust of the section was to proscribe discriminatory underwriting. See the discussion in Gov’t Employees Ins. v. Ins.

Comm’r, 273 Md. 467, 478-480 , 330 A.2d 653 (1975). By Ch. 752 of the Acts of 1974, however, the Legislature amended § 234A and went far beyond a proscription of discrimination in underwriting. That statute added a requirement that no insurer may cancel or refuse to underwrite or renew an insurance risk “except by the application of standards which are reasonably related to the insurer’s economic and business purposes.” Ch. 752 also added the provision that, at “any hearing to determine whether there has been a violation of this section, the burden of persuasion shall be upon the insurer to demonstrate that the ... refusal to ... renew is justified under the standards so demonstrated.” The preamble to Ch. 752 states that insurers’ underwriting decisions must “be made solely on the basis of a reasonable application to relevant facts of underwriting principles, standards and rules that can be demonstrated objectively to measure the probability of a direct and substantial adverse effect upon losses or expenses of the insurer in light of the approved rating plan or plans of the insurer then in effect____” (Emphasis added.) As pointed out in Gov’t Employees Ins. v. Ins. Comm’ r, supra, 273 Md. at 482-483 , 330 A.2d 653 , in referring to the ²⁵⁵ new statutory language and the preamble, the General Assembly in Ch. 752 “wished to move beyond the historic prejudices already proscribed by § 234A, [and] it did so in explicit fashion.” In 1977 the Legislature further restricted an automobile insurer’s right to nonrenew a policy, by amending § 234A to prohibit nonrenewals because of the existence of traffic violations or accidents more than three years old.

See Ch. 314 of the Acts of 1977. Whereas § 234A contains the substantive limitations on an insurer’s underwriting decisions, § 240AA prescribes procedures and procedural limitations with regard to the cancellation or nonrenewal of motor vehicle liability insurance policies. The section states that an insurer who intends to nonrenew a policyholder must send written notice to the policyholder on or before forty-five days prior to the proposed effective date of the nonrenewal informing the policyholder of the insurer’s reasons for nonrenewal. 6 The ²⁵⁶ insured has a right to protest the proposed nonrenewal, and such protest stays the nonrenewal pending a final determination by the Insurance Commissioner. 7 In addition, the ²⁵⁷ insured has a right to a hearing before the Insurance Commissioner or his designee. Section 240AA(f) reiterates the requirement in § 234A, that at such “hearing the insurer has the burden of proving its proposed action to be justified____” 8 II.

The facts in the three cases before us are as follows. The Carter Case On May 13, 1981, the American Motorists Insurance Company sent a notice to one of its insureds, Judith Carter of Timonium, Maryland, informing Mrs. Carter that the ²⁵⁸ insurer did not intend to renew her automobile liability insurance policy when it expired on July 1,1981. The notice (as explained by the insurer’s representative at the later hearing) indicated that the nonrenewal decision was based on two incidents occurring in 1979 and 1981. On October 17, 1979, the insured automobile, operated by Mrs. Carter, struck another vehicle in the rear, causing property damage to both vehicles, although there were no personal injuries.

Based upon this incident, Mrs. Carter was convicted in the District Court of Maryland of following too closely. On March 6, 1981, the insured automobile, again operated by Mrs. Carter, slid on some ice, spun around, and struck another vehicle. This too caused property damage to both vehicles, but there were no personal injuries. Mrs. Carter was not convicted of any traffic offense based on this second incident, although the insurer did pay a property damage claim made by the owner of the other vehicle. 9 The nonrenewal notice sent to Mrs. Carter went on to refer to a study done by the State of California, which concluded that a driver with a traffic violation over a three year period was 1.81 times more likely to have an accident within the next three years than a driver who had no traffic violations, and that the average driver is involved in an accident only once every twelve years.

The nonrenewal notice then pointed out that the insurance company was entitled under its filed rating plan to surcharge Mrs. Carter for the two accidents but that “comparison of the permitted surcharge with the probability of future loss through accident reveals that the company will not be compensated adequately based on the premium rate and the surcharge authorized.” The nonrenewal notice concluded by stating that maintaining an insured such as Mrs. Carter “has a direct adverse ²⁵⁹ bearing on the economic and business purpose of the company.” Mrs. Carter protested the proposed action of American Motorists Insurance Company and requested a hearing before the Insurance Commissioner. In addition, she submitted a detailed statement to the Insurance Commissioner for the purpose of showing that the accident on March 6, 1981, was not her fault. At the subsequent administrative hearing the sole witness for the insurance company was Ruth Sheehan, identified as “Underwriting Supervisor, Kemper Insurance.” Miss Sheehan testified that the American Motorists Insurance Company views any Maryland driver with more than one accident or traffic violation within a three year period as an unacceptable risk. 10 She stated that this determination was based on studies, reports and “the company’s own experience.” Nevertheless, no studies or reports were introduced in evidence, and no data or evidence was submitted concerning the company’s experience. Miss Sheehan did testify that a study conducted by the California Division of Motor Vehicles “concluded that the average driver is involved in an accident every twelve years.

And that that single predictor of accident involvement is the driver’s conviction record. An operator convicted of one conviction within a three-year period has 1.95 times the increased probability of an accident than does the violation-free driver. And the driver that’s involved in two accidents within a three-year period has 2.93 times the increased probability of another accident than does the accident-free operator.” Miss Sheehan went on to testify that American Motorists would be able, under its rating plan filed with the Maryland Insurance Commissioner, to surcharge Mrs. Carter for both ²⁶⁰ of the accidents. Her direct testimony, under the questioning by the insurer’s counsel, concluded as follows: “Q Is the—are the premiums the company is allowed to charge, including the surcharge for these two accidents, sufficient to offset the increased risk of loss indicated by a person with Miss Carter’s driving record? “A No, because we feel in comparison to the surcharge to the increased probability of future loss, does not compensate the company for the increased risk. “Q You’re saying that the increased risk is greater than is the increased premium that is allowed to be charged? “A That’s correct. “Q Does the company take this—will the company take the same action when any. of its insureds in Maryland, that it is aware, has more than one accident or violation within a three-year period? “A It most certainly does. “Q And, were any factors other than the accidents and violations considered when the company sent out the notice of intent not to renew? “A No.” Following the hearing the Insurance Commissioner, by the Hearing Officer, issued a written order concluding that nonrenewal of Mrs. Carter’s policy “is in violation of Sections 234A, 240AA of Article 48A” and ordering that “the Licensee [insurer] continue in effect the insurance coverages.” Among the “Findings of Fact,” the Hearing Officer found that the insurer “has failed to produce evidence which demonstrates that its underwriting standards are reasonably related to its economic and business purposes.” In addition, the Hearing Officer found that the “licensee has a surcharge plan it can apply to the accidents of Mrs. Carter.” The Matthews Case James E. Matthews of Baltimore City had an automobile liability insurance policy issued by Lumbermen’s Mutual ²⁶¹ Casualty Company.

On August 11, 1981, Lumbermen’s sent Mr. Matthews a “Notice Of Intent Not To Renew” which was virtually identical to the notice sent by American Motorist in the Carter case, although the incidents forming the basis for the decision were three traffic violations in 1980. As in the Carter case, the notice sent to Mr. Matthews referred to the study done in California, recited that the insurer was entitled to surcharge Mr. Matthews under its filed rating plan, complained that the surcharged rates under the rating plan were inadequate, and stated that keeping an insured such as Mr. Matthews “has a direct adverse bearing on the economic and business purpose of the company.” Mr. Matthews protested the intended action and requested a hearing before the Insurance Commissioner or his designee. At the administrative hearing, the only witness for Lumbermen’s was again Ruth Sheehan, “underwriting supervisor” for the Kemper Insurance Group. Miss Sheehan initially testified that the reason for the nonrenewal was that Mr. Matthew’s driving record, dated September 9, 1981, disclosed three traffic convictions, namely an automatic signal violation on January 30, 1980, exceeding the speed limit on May 31, 1980, and failure to obey a stop or yield sign on October 26, 1980.

Miss Sheehan reiterated that, under Lumbermen’s underwriting guidelines, “any operator with more than one accident or conviction within a three year period is an unacceptable operator” so as to “disqualify this person for continued coverage with Lumbermen’s.” She stated again that this guideline was based on the company’s “own experience as well as various studies,” including the “California study.” As in the Carter case, Miss Sheehan offered, no data or evidence with respect to the company’s experience, and none of the “studies” was introduced in evidence. Miss Sheehan did say that, “among major conclusions reached by this [California] study are” that the “best single predictor of accident involves conviction record,” and that an “operator with three moving traffic violations within a three year period has 3.54 times ²⁶² an increased probability of an accident than does a violation free driver.” Miss Sheehan acknowledged that Lumbermen’s rating plan on file covered the instant situation, that it authorized a surcharge for certain initial traffic violations but not others, and that it allowed surcharges for Mr. Matthews’s second and third violations. 11 She went on to testify that the company would refuse to renew any of its drivers in Maryland who have more than one moving traffic violation over a three year period, despite its ability to surcharge under the rating plan. She stated that the amount of the surcharge under the rating plan “does not compensate the company for the increased risk.” Mr. Matthews testified that he had been driving in Maryland since 1963 when he was discharged from the Air Force, that he had never had an accident, and that he had had no traffic violations on his record since 1963 except for the three tickets which he received and paid in 1980. Even though the study itself was not in evidence, Mr. Matthews stated that the California study relied on by Lumbermen’s was “done ... sometime before 1968.” Mr. Matthews also disputed Miss Sheehan’s testimony concerning the “conclusions” of the California study.

Mr. Matthews submitted into evidence Lumbermen’s current rating plan which the company had filed with the Insurance Commissioner and the Commissioner had approved. At the conclusion of the hearing, Lumbermen’s counsel argued that the ability of the insurer to surcharge under its rating plan did not furnish a ground for upholding Mr. Matthews’s protest, as “the amount of the surcharge does not adequately compensate the company.” Counsel made the “proffer” that, were she asked, Miss Sheehan would testify that the surcharges under the plan were adequate only when there were “family automobile policies in which ²⁶³ you have more than one driver, each having one ... accident or violation,” but with no individual driver having more than one accident or violation. Subsequently the Insurance Commissioner, by the Hearing Officer, filed an order finding that “the Licensee [insurer] has failed to show how this risk exceeds the surcharge capability of the Licensee’s approved rating plan.” The order concluded that Lumberman’s had violated Art. 48A, §§ 234A and 240AA, and it required that Lumbermen’s continue in effect Mr. Matthews’s coverage. The Grainger Case Lumbermen’s had also issued an automobile liability insurance policy to Jana Grainger of Laurel, Maryland.

The insurer, on May 7, 1981, sent Miss Grainger a nonrenewal notice which referred to two traffic violations in 1980. Otherwise the notice was identical to the notices in the other two cases, referring to the inadequacy of the surcharges under the rating plan, etc. As did the insureds in the other two cases, Miss Grainger protested and requested a hearing. The hearing was similar to those in Carter and Matthews, except that Lumbermen’s sole witness was Donald M. Schlear, identified as the “personalized underwriting supervisor with the Kemper Insurance Group.” Mr. Schlear testified that the nonrenewal of Miss Grainger’s policy was because of a conviction on April 17, 1980, for exceeding the speed limit and a conviction on May 16, 1980, for failure to obey a traffic device. Mr. Schlear also testified that Lumbermen’s refuses to renew all policy holders who have more than one moving violation over a three year period, and that this underwriting decision is based on the insurer’s own “experience” and on “studies.” Again, no data or evidence concerning Lumbermen’s experience was offered, and no studies were offered into evidence.

Mr. Schlear also testified that under its filed rating plan Lumbermen’s could surcharge for both of Miss Grainger’s traffic violations but that the surcharges under the plan do “not compensate the company for the ²⁶⁴ increased risk.” He concluded by testifying that the surcharges in the rating plan are not “adequate to provide sufficient premiums to offset the risk of loss shown by a driver with two violations within a three-year period.” Miss Grainger testified concerning the circumstances underlying the two traffic convictions, stated that she had received no traffic tickets since those convictions, and testified that she had never been involved in a traffic accident. After the testimony had concluded, the Hearing Officer found that the nonrenewal was “in violation of Seetion[s] 234A and 240AA, and the company’s action will be disallowed, and the company will be allowed to surcharge for the violations but must remain on the risk.” These findings were later embodied in a written order of the Insurance Commissioner, signed on behalf of the Commissioner by the Hearing Officer.

III

The two insurers sought judicial review of all three decisions in the Baltimore City Court (now the Circuit Court for Baltimore City). The cases were consolidated, and the court upheld the administrative decisions. The insurers took appeals to the Court of Special Appeals, and this Court issued a writ of certiorari prior to argument in the intermediate appellate court. It is clear in all three of these cases that the gist of the insurers’ complaint, and the basis for the proposed nonrenewals, was the insurers’ belief that the surcharge rates in the filed and approved rating plans were insufficient with respect to Maryland insured drivers having more than one accident or violation over a three year period.

The companies’ position was that the automobile liability policies of all of their Maryland insured drivers who fell within this allegedly inadequate rating category should not be renewed. The argument is that the asserted rate inadequacy for this broad category of insureds is “reasonably related to the ²⁶⁵ insurer’s economic and business purposes” within the meaning of § 234A, as amended by Ch. 752 of the Acts of 1974, and that, therefore, it is justification under that section for the nonrenewals. The Insurance Commissioner, both at the administrative level and before this Court, has rejected the insurers’ position on alternate grounds. First, the Commissioner found that the insurers did not, factually, meet their burden of proving that the surcharge rating plan was inadequate or that, because of the driving records of the three insureds, continuation of the insurance presented risks for which the insurers would not be compensated.

The Commissioner contended that this finding is supported by the record. Second, the Commissioner has taken the position that, as a matter of law, when an automobile liability insurer’s filed and approved rating plan provides surcharges for certain underwriting factors which increase the risk of accident, the insurer cannot ignore its surcharge plan and refuse to renew an insured’s policy because of the presence of those identical underwriting factors. In other words, the asserted inadequacy of the rates in an insurer’s approved rating plan is not encompassed by § 234A’s justification for nonrenewal. In general, we agree with both arguments by the Insurance Commissioner.

Therefore we