United Insurance Co. of America v. Maryland Insurance Administration

Hotten, J. We consider whether a party who challenges the constitutionality and retroactive effect of a newly-enacted Maryland statute must pursue and exhaust administrative remedies ⁸ before seeking declaratory relief in the circuit court. Petitioners, United Insurance Company of America and the Reliable Life Insurance Company, insurance providers in the State of Maryland, filed a declaratory action against Respondents, the Maryland Insurance Administration, et al., (“MIA”) in the Circuit Court for Anne Arundel County, challenging the retroactive enforcement of Md. Code (2011 Repl. Vol., 2015 Supp.) § 16-118 of the Insurance Article (“Ins.”). Section 16-118 imposes a duty on an insurer who “issues, delivers, or renews a policy of life insurance or an annuity contract ...” in the State to “perform a comparison of [their] in-force life insurance policies, annuity contracts, and retained assets accounts against the latest version of a death master file to identify any death benefit payments that may be due. ...” on a regular or semi-annual basis.

Ins. § 16—118(c)(1)—(2)(i). Prior to this legislation, insurers were under no obligation to research whether a policyholder had died, and the statute did not indicate whether its provisions apply retroactively to existing insurance policies. The circuit court dismissed Petitioners’ action based on the failure to exhaust administrative remedies afforded by the Insurance Article. In an unpublished opinion, the Court of Special Appeals agreed, and affirmed the judgment of the circuit court.

United Insurance Company of America et al. v. Maryland Insurance Administration et al., No. 0020, Sept. Term 2014, 2015 WL 5968833 (Md.Ct.Spec.App. Oct. 14, 2015). Thereafter, we granted certiorari. For the reasons that follow, we shall affirm the judgment of the Court of Special Appeals. FACTUAL AND PROCEDURAL BACKGROUND Petitioners’ in-force life insurance policies Petitioners offer life insurance policies to lower income individuals and families in the State of Maryland.

The policies are subject to extensive regulation by the MIA, the agency that administers and regulates the State’s insurance market. As of December 2011, Petitioners retained a combined total of approximately 135,000 in-force policies in the State. The aver ⁹ age face value of the policies was $5,000, with average monthly premiums of approximately $7.00. Petitioners calculated premium rates through a process that relies upon actuarial assumptions of an insured’s life expectancy, the timing and frequency of claims payments, the anticipated rate of return on invested assets, and financial projections concerning anticipated administrative costs incurred during the policy benefit period.

The policies provided that insurance proceeds would be paid upon “receipt of due proof of death” of the insured. Specifically, United Insurance Company of America’s policies defined “due proof of death” as “a certified copy of the death certificate, a certified copy of a decree of a court of competent jurisdiction as to the finding of death or any other proof satisfactory to [the insurer].” Petitioners’ premium rates reflected costs savings realized by placing the obligation on beneficiaries to provide proof of death. The enactment of § 16-118 of the Insurance Article Maryland Senate Bill 77 (2012) was passed by the General Assembly, signed into law as § 16-118 of the Insurance Article, and became effective on October 1, 2013. The bill was introduced in response to the growing concern of questionable and unfair settlement practices by major life insurance companies, which allegedly often led to “unknowing beneficiaries of life insurance policies” missing timely receipt of the settlements owed. 1 See Testimony of Senator Delores G. Kelley on Senate Bill 77—Life Insurance and Annuities—Unfair Claim Settlement Practices—Failure to Cross-Check Death Master File Before the Senate Finance Committee on January 26, ¹⁰ 2012, 430th Sess.

(2012). The relevant provisions of Ins. § 16-118 provide: Duty of insurer to perform comparison of life insurance policies, annuity contracts, and retained asset accounts (c)(1) An insurer that issues, delivers, or renews a policy of life insurance or an annuity contract in the State shall perform a comparison of the insurer’s in-force life insurance policies, annuity contracts, and retained asset accounts against the latest version of a death master file[ 2 ] to identify any death benefit payments that may be due under the policies, contracts, or retained asset accounts as a result of the death of an insured, annuitant, or retained asset account holder. (2) An insurer shall perform the comparison required under paragraph (1) of this subsection: (i) at regular intervals, on at least a semiannual basis; and (ii) in good faith, using criteria reasonably designed to identify individuals whose death would require the payment of benefits by the insurer under a life insurance policy, annuity contract, or retained asset account. (3) For a group life insurance policy, an insurer is not required to perform the comparison required under paragraph (1) of this subsection unless the insurer provides full record-keeping services to the group life insurance policy holder.

Ins. § 16-118 (c)(1)-(3). If the comparison reveals a match in the Social Security Administration’s Death Master File, an insurer is required to ¹¹ 1) “conduct a good faith effort to confirm the death of the insured, annuitant, or retained asset account holder using other available records and information;” 2) “determine whether benefits are due under the applicable life insurance policy, annuity contract, or retained asset account;” and 3) “use good faith efforts to locate the beneficiary” and “provide to the beneficiary the appropriate claims forms and instructions necessary to make a claim[,]” “if benefits are due under the policy, contract, or retained asset account.” Ins. § 16-118(d)(1)(i)—(iii)(1)—(2). The statute does not reflect whether insurers are required to perform the comparison for in-force policies prior to the statute’s effective date. Failure to comply with the requirements of Ins. § 16-118 constitutes an “unfair claim settlement practice[,]” Ins. § 27-303(10), punishable by civil penalties up to $2,500 per violation, Ins. § 27-305(a)(l) or restitutionary penalties, Ins. § 27-305(c)(1).

For violations of Ins. § 27-304 (unfair claim settlement practices committed with frequency), the Commissioner is authorized to revoke or suspend an insurer’s license, Ins. §§ 27-305(b); 4-113; issue cease and desist orders, Ins. §§ 27-103; 4-114; or impose misdemeanor penalties, Ins. § 1-301. Petitioners’ challenge to Ins. § 16-118 On February 28, 2013, Petitioners, through their representatives, attended a meeting with the then-insurance Commissioner, Therese M. Goldsmith (“Commissioner Goldsmith”), 3 who indicated her view that Ins. § 16-118 applied to all in-force policies, including those in effect prior to the statute’s effective date. Commissioner Goldsmith further advised that she would enforce the requirements of the statute against all of Petitioners’ in-force policies. Thereafter, in July 2013, Petitioners filed a civil action against the MIA and Commissioner Goldsmith in the Circuit Court for Anne Arundel County, seeking a declaration that the statute was inapplicable to insurance policies issued prior to its effective date. ¹² Petitioners advanced the following grounds for relief: 1) the retroactive enforcement of the statute violated Articles 19 4 and 24 5 of the Maryland Declaration of Rights and Article III, § 40 6 of the Maryland Constitution; 2) the retroactive enforcement of the statute abrogated their substantive contract rights in violation of those same provisions; and 3) the retroactive enforcement of the statute constituted an unconstitutional impairment of their contractual rights in violation of Article I, § 10 7 of the United States Constitution.

Petitioners sought a judgment declaring that the statute did not apply retroactively to their in-force policies as of the effective date, or alternatively, that retroactive enforcement of the statute would be void because it violated one or more constitutional provisions. The MIA filed a motion to dismiss, alleging that the Insurance Article provided administrative remedies that Petitioners were required to exhaust before seeking relief in the circuit court. In granting MIA’s motion, the court held that the administrative remedy outlined in Ins. § 2-210 8 must be exhausted before Petitioners pursued a ¹³ declaratory judgment, given the strong presumption that the available remedy was primary, i.e., a remedy in which a claimant must first invoke and exhaust before seeking a judicial remedy, and the absence of factors weighing against that presumption. The court further Held that Petitioners’ claim did not fall within the exception to the administrative exhaustion requirement, since the claim was not solely a constitutional challenge to the General Assembly’s authority to enact retroactive legislation, but was also a challenge to the MIA’s interpretation and application of the law regarding retroactivity.

Thereafter, Petitioners noted a timely appeal to the Court of Special Appeals. In considering the factors enunciated in Zappone v. Liberty Life Ins. Co., 349 Md. 45, 64-66 , 706 A.2d 1060, 1069-70 (1998), which outlined the test for determining whether an administrative remedy is primary, the Court of Special Appeals held that Ins. § 2-210 provided a primary administrative remedy for the following reasons: the statute was comprehensive and encompassed challenges to the MIA’s interpretation of Ins. § 16-118; Petitioner’s challenge was dependent upon the Insurance Article’s statutory scheme since it “pertain[ed] to how the [MIA] propose[d] to interpret and enforce the statutory scheme and how the [MIA’s] interpretation affects their constitutional rights[;]” and assessing the nature and extent of the alleged impairment of Petitioners’ contractual rights were matters within the purview of the agency’s expertise. The Court also accorded weight to the MIA’s view that it maintained primary jurisdiction over Petitioners’ challenge. ¹⁴ Additionally, the Court observed that Petitioners’ contention did not fall within the constitutional exception to the rule requiring exhaustion of administrative remedies, reasoning that “Petitioners assert[ed] a non-constitutional theory of relief, [in which] invocation of the constitutional exception [was] inappropriate.” This Court subsequently granted certiorari.

STANDARD OP REVIEW Whether a plaintiff must exhaust administrative remedies prior to bringing suit is a legal issue which the Court of Appeals reviews de novo. See Falls Road Community Ass’n, Inc. v. Baltimore County, 437 Md. 115, 134 , 85 A.3d 185, 197-98 (2014); see also Forster v. State, Office of Public Defender, 426 Md. 565, 580 , 45 A.3d 180, 189 (2012) (“In addition to Maryland Rule 8-131(a) indicating generally that we may consider issues ‘raised in or decided by the trial court,’ we may consider, [sua sponte], whether available administrative remedies have been exhausted.”) (emphasis omitted). DISCUSSION I. Petitioners are required to first pursue and exhaust available administrative remedies before seeking relief in the circuit court The doctrine of administrative exhaustion concerns “the relationship between legislatively created administrative remedies and alternative statutory, common law or equitable judicial remedies.” Prince George’s County. v. Ray’s Used Cars, 398 Md. 632, 644 , 922 A.2d 495, 502 (2007). In Ray’s Used Cars, 398 Md. at 644-45 , 922 A.2d at 502 , we observed that “[w]henever the [General Assembly] provides an administrative and judicial review remedy to resolve a particular matter or matters, the relationship between that administrative remedy and a possible alternative judicial remedy will ordinarily fall into one of three categories[:]” [T]he administrative remedy may be exclusive, thus precluding any resort to an alternative remedy.

Under this ¹⁵ scenario, there simply is no alternative cause of action for matters covered by the statutory administrative remedy. [T]he administrative remedy may be primary but not exclusive. In this situation, a claimant must invoke and exhaust the administrative remedy, and seek judicial review of an adverse administrative decision, before a court can properly adjudicate the merits of the alternative judicial remedy. [T]he administrative remedy and the alternative judicial remedy may be fully concurrent, with neither remedy being primary, and the plaintiff at his or her option may pursue the judicial remedy without the necessity of invoking and exhausting the administrative remedy.[ 9 ] (quoting Zappone v. Liberty Life Ins. Co., 349 Md. 45, 60-61 , 706 A.2d 1060, 1067-68 (1998) (footnote omitted) (emphasis added); see also Carter v. Huntington Title & Escrow, LLC, 420 Md. 605, 616 , 24 A.3d 722, 728-29 (2011) (“[W]e held that, where the [General Assembly] provides ‘[ (1) ] an administrative and judicial review remedy ... and [ (2) ] a possible alternative judicial remedy’ for a ‘particular matter or matters,’ we must determine whether it intended the agency to have exclusive, primary, or concurrent jurisdiction.”) (citation omitted). In the absence of specific statutory language indicating the type of administrative remedy, there is a rebuttable presumption that an administrative remedy was intended to be primary.

Zappone, 349 Md. at 63 , 706 A.2d at 1070 . Thus, “a claimant cannot maintain the alternative judicial action without first invoking and exhausting the administrative remedy.” Id. (citations omitted). See also Maryland Reclamation Associates, Inc. v. Harford County, 342 Md. 476, 493 , 677 A.2d 567, 576 (1996) (“[T]his Court has ‘ordinarily construed the pertinent [legislative] enactments to require that the administrative remedy be first invoked and followed’ before resort to ¹⁶ the courts.”); Clinton v. Board of Education of Howard County, 315 Md. 666, 678 , 556 A.2d 273, 279 (1989) (“Ordinarily when there are two forums available, one judicial and the other administrative, ... and no statutory directive indicating which should be pursued first, a party is often first required to run the administrative remedial course before seeking a judicial solution.”).

The remedial provision at issue, Ins. § 2-210(a)-(b), provides the following: In general (a)(1) The Commissioner may hold hearings that the Commissioner considers necessary for any purpose under this article. (2) The Commissioner shall hold a hearing: (i) if required by any provision of this article; or (ii) except as otherwise provided in this article, on written demand by a person aggrieved by any act of, threatened act of, or failure to act by the Commissioner or by any report, regulation, or order of the Commissioner, except an order to hold a hearing or an order resulting from a hearing. Demand for hearing (b)(1) A demand for a hearing shall state the grounds for the relief to be demanded at the hearing. (2) Within 30 consecutive days after receiving a demand for a hearing, the Commissioner shall: (i) grant and, unless postponed by mutual consent of the parties, hold the hearing; or (ii) issue an order refusing the hearing.

(3) If the Commissioner does not grant or refuse a hearing within the 30-day period, the hearing is deemed to have been refused. Petitioners aver that administrative exhaustion is not required, since Ins. § 2-210(a)(2) provides a concurrent, rather than a primary remedy, in which they have the option to pursue administrative relief or a declaratory judgment. We ¹⁷ disagree. The Insurance Article does not expressly or impliedly indicate whether Ins. § 2-210 is a concurrent remedy, and Petitioners’ argument fails to rebut the presumption that the available administrative remedy was not intended to be primary.

We explain. In determining whether the presumption that an administrative remedy is primary prevails, we consider the following four factors: 1) the comprehensiveness of the administrative remedy in addressing an aggrieved party’s claim; 2) the administrative agency’s view of its jurisdiction over the matter; 3) the claim’s dependence upon the statutory scheme; and 4) the claim’s dependence upon the administrative agency’s expertise. Zappone, 349 Md. at 64-66 , 706 A.2d at 1069-70 (hereinafter “the Zappone factors”). See also Carter, 420 Md. at 617 , 24 A.3d at 729 (“[W]e weigh at least four germane factors, including: ‘the comprehensiveness of the administrative remedy,’ the ‘agency’s view of its own jurisdiction,’ the claim’s ‘dependence] upon the statutory scheme which also contains the administrative remedy,’ and the claim’s ‘dependence]’ upon the agency’s expertise.”). a.

Factor One: The Insurance Article provides a comprehensive remedial scheme “A very comprehensive administrative remedial scheme is some indication that the [General Assembly] intended the administrative remedy to be primary, whereas a non-comprehensive administrative scheme suggests the contrary.” Zappone, 349 Md. at 64 , 706 A.2d at 1070 (citations omitted). In Carter, 420 Md. at 627 , 24 A.3d at 735 , we observed that “the General Assembly created a comprehensive, if not complex, regulatory and remedial scheme [in the Insurance Article]. ...” (quoting Zappone, 349 Md. at 64 , 706 A.2d at 1070 ). Therefore, the relevant inquiry is whether the statutory scheme is sufficiently comprehensive, in that it encompasses any claim raised by an aggrieved party, and “preclude[s] resort to a fully independent common law remedy. ...” Carter, 420 Md. at 627 , 24 A.3d at 735 (quoting Zappone, 349 Md. at 67 , 706 A.2d at 1071 ) (emphasis in original). See, e.g., ¹⁸ Carter, 420 Md. at 627-28 , 24 A.3d at 735 (“The question, however, is whether [the Insurance Article’s] scheme is sufficiently comprehensive, such that the [General Assembly] displayed an intent for claims ... to proceed first through the MIA.”).

See generally Equitable Life Assur. Soc. of U.S. v. State Comm’n on Human Relations, 290 Md. 333, 337-39 , 430 A.2d 60, 63-64 (1981) (rejecting an argument that the Unfair Trade Practices provision of the Insurance Article was entirely comprehensive to the extent that it precluded concurrent jurisdiction by the Commission of Human Relations in resolving an alleged unfair discriminatory practice in insurance sales). Where a claim alleges and depends upon a “statutory benchmark violation,” contemplated by the Insurance Article, the statutory remedy is deemed sufficiently comprehensive, and thus, the claim “should be considered first by the administering agency.” Carter, 420 Md. at 628 , 24 A.3d at 735 . Notably, the fact that the Insurance Article may, under certain circumstances, “suggest that the administrative remedy is merely concurrent for truly and fully independent common law claims, ...” does not negate the “primary jurisdictional grant for claims alleging what amounts to purely statutory violations.” Id.

We, therefore, disagree with Petitioners’ contention that Ins. § 2-210 fails to provide a comprehensive remedy, because it “does not encompass ... [their] constitutional challenges to retroactive insurance legislation.” 10 Section 2-210(a)(2)(ii) of the Insurance Article provides that the Com ¹⁹ missioner “shall hold a hearing ... on written demand by a person aggrieved by any act of, threatened act of, or failure to act by the Commissioner. ...” (emphasis added). The Insurance Article does not specifically define “threatened act.” However, a plain reading of the statutory language unambiguously reveals that the remedy encompasses Petitioners’ constitutional challenges to retroactive legislation, since their claim was predicated upon Commissioner Goldsmith’s statement that the MIA would enforce the requirements of Ins. § 16-118 against Petitioners’ in-force policies.' In interpreting the meaning of “threatened act,” we remain cognizant that “[t]he cardinal rule of statutory construction is to ascertain and effectuate the intent of the [General Assembly].” Griffin v. Lindsey, 444 Md. 278, 287 , 119 A.3d 753, 758 (2015) (citation omitted). Thus, in discerning the General Assembly’s intent, we consult the well-established canons of statutory construction: [W]e begin with the normal, plain meaning of the language of the statute. If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry as to legislative intent ends ordinarily and we apply the statute as written, without resort to other rules of construction. ...

We, however, do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute’s plain language to the isolated section alone. Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the [General Assembly] in enacting the statute. Id. at 287 , 119 A.3d at 758 (citation omitted). A “threat” is defined, in part, as “a declaration, express or implied, of an intent to inflict loss or pain on another[.]” Black’s Law Dictionary (10th ed. 2014) (emphasis added); Merriam-Webster’s Collegiate Dictionary, Eleventh Edition (defining a threat, in part, as “an indication of something impending[.]”).

In Petitioners’ amended complaint, they alleged, in relevant part: ²⁰ [Petitioners] bring this action solely to challenge the retroactive application of [Ins. § 16-118]. The [MIA] has advised [Petitioners] that the [statute’s] requirements must be applied to [Petitioners’] existing, in-force policies. If applied to those policies, the [statute] would require [Petitioners] to assume substantial new obligations that were never contemplated or agreed to by [Petitioners], that are contrary to the long-standing allocation of rights and responsibilities under [Petitioners’] policies, and that undermine the actuarial and economic assumptions underlying those policies. * * ⅞ [Ins. § 16-118] imposes substantial new obligations on life insurers licensed to issue policies in the State, including in particular, the obligation to perform a [Social Security Death Master File] search for all in-force policies within six months of the [statute’s] effective date, and to then confirm the insureds’ deaths, determine whether benefits are payable, and locate beneficiaries. Failure to comply with any of the requirements of [Ins. § 16-118] constitutes an ‘unfair claim settlement practice’ under the Maryland Insurance Code Md. Ins.

Code [§ ] 27-303(10). The Code prescribes severe civil penalties for such practices, including civil fines of $2,500 per violation, id. [§ ] 27-305(a)(l), restitutionary penalties, id. § 27-305(c)(l), and revocation or suspension of an insurer’s license, id. § 4-113.... [Commissioner Goldsmith] and the Principal Counsel for the Office of the Attorney General advised [Petitioners] in a meeting held on February 28, 2013 at the offices of the [MIA] that [it] interprets [Ins. § 16-118] to apply to all in-force policies, including those issued prior to the [statute’s] effective date. The [MIA] further indicated that it would enforce the requirements of the [statute] against all of [Petitioners’] in-force policies, including those issued prior to the [statute’s] effective date. ... Consistent with the plain meaning of the term “threat,” we conclude that Commissioner Goldsmith’s statement constituted ²¹ a “threatened act,” within the meaning of Ins. § 2-210.

As reflected in Petitioners’ complaint, the Commissioner expressly declared that the MIA would enforce the requirements of Ins. § 16-118 to all of Petitioners’ in-force policies, including those policies issued prior to the statute’s effective date. If Petitioners failed to comply with the requirements, they would be in violation of the statute and subject to civil or criminal penalties (ie., losses) for engaging in “unfair claim settlement practices.” See Ins. §§ 27-303(10); 27-305. Commissioner Goldsmith’s statement constituted a threat to Petitioners because “enforcing] the requirements of [Ins. § 16-118] against all of [Petitioners’] in-force policies, including those issued prior to the [statute’s] effective date, ...” would impose economic losses, or alternatively, civil or criminal penalties for noncompliance. Thus, by virtue of the Commissioner’s “threatened act,” Petitioners are the “person[s] aggrieved[,]” who upon written demand, can pursue relief by requesting a hearing before the Commissioner.

Ins. § 2-210(a)(2)(ii). Accordingly, Petitioners’ assertion that Commissioner Goldsmith’s “informal” statement during a non-public meeting prior to the statute’s effective date was not a threatened act within the meaning of Ins. § 2-210, is unavailing. As an initial matter, a “threat” contemplates impending action, see supra. Thus, the fact that the statement was made prior to the statute’s effective date is of no consequence.

Moreover, the context and location of Commissioner Goldsmith’s statement is not dispositive, because it does not negate the impending effect, which, in our view, was intended to further the statute’s purpose, and encourage Petitioners’ compliance. Additionally, as the Court of Special Appeals observed, the fact that the Commissioner is authorized to review both “acts” and “threatened acts,” see Ins. § 2-210(a)(2)(ii), under the statute is particularly significant, because it reveals the General Assembly’s intent to encompass imminent action, such as Commissioner Goldsmith’s declaration that Ins. § 16-118 would be enforced retroactively. See United Insurance, 2015 WL 5968833 at ⁵. ²² We are similarly not persuaded by Petitioners’ alternative argument concerning the scope of the remedy provided under Ins. § 2-210. Petitioners aver that assuming Commissioner Goldsmith’s statement constituted a threat, administrative exhaustion was not required because they were entitled to request a hearing under Ins. § 2-210 at their discretion, which provided the “option,” and not an “obligation” to pursue administrative relief or a declaratory judgment (emphasis omitted).

While the statute does not reflect that an aggrieved party must request a hearing, this does not mean that Ins. § 2-210 is a concurrent remedy. Petitioners’ focus on their right to “make[ ] the election” ignores long-standing Maryland precedent, which expressly provides that an administrative remedy is intended to be primary, unless the presumption is rebutted, or an aggrieved party’s claim is exempt from administrative exhaustion. See Zappone, 349 Md. at 63 , 706 A.2d at 1070 ; Prince George’s County v. Blumberg, 288 Md. 275, 284-85 , 418 A.2d 1155, 1161 (1980) (outlining the five exceptions to the administrative exhaustion requirement). b. Factor Two: The MIA’s view of its primary jurisdiction over Petitioners’ claim is instructive Relevant to this factor is determining whether “the General Assembly has provided a special form of remedy and established a statutory procedure before an administrative agency for a special kind of case[.]” Carter, 420 Md. at 629 , 24 A.3d at 736 (quoting Muhl v. Magan, 313 Md. 462, 480-81 , 545 A.2d 1321, 1330 (1988)).

A “special form of remedy” is generally an indication that “a litigant must ordinarily pursue that form of remedy and not by[-]pass the administrative official. ...” Carter, 420 Md. at 629 , 24 A.3d at 736 (quoting Muhl, 313 Md. at 480-81 , 545 A.2d at 1330 ); Zappone, 349 Md. at 65 , 706 A.2d at 1070 . The MIA views its jurisdiction over Petitioners’ claim as primary. In light of our conclusions infra, that Petitioners’ claim depends upon the statutory scheme of the Insurance Article and the expertise of the MIA, we are persuaded that ²³ the MIA maintains primary jurisdiction over Petitioners’ claim. See Carter, 420 Md. at 629 , 24 A.3d at 736 (noting that consideration of the remaining Zappone factors would support the Court’s conclusion that the allegations in Carter’s complaint were not “truly and fully independent common law claims,” in which the General Assembly has provided him “a special form of remedy! ]”); Zappone, 349 Md. at 65 , 706 A.2d at 1070 (acknowledging “that an agency’s interpretation of the statute which it administers” and its “interpretation that the remedy before the agency was not intended to be primary[,]” is entitled to weight) (citation omitted). c.

Factor Three: Petitioners’ claim depends upon the statutory scheme of the Insurance Article Whether a plaintiffs claim is dependent on the statutory scheme is accorded significant weight in determining the nature of an administrative remedy. See Zappone, 349 Md. at 65 , 706 A.2d at 1070 (“An extremely significant consideration ... is the nature of the alternative judicial cause of action pursued by [a] plaintiff.”). Thus, “[wjhere the judicial cause of action is wholly or partially dependent upon the statutory scheme ... the Court has usually held that the administrative remedy was intended to be primary and must first be invoked and exhausted before resort to the courts.” Id. Petitioners aver that their claim is not dependent on the statutory scheme, since their “claim is constitutional, not statutory, and therefore is ‘entirely independent’ from the Insurance Article.” We disagree, and are persuaded by the MIA’s argument that “[Petitioners’] claim is wholly dependent on the Insurance Article because, without the enactment of [Ins.] § 16—118(c)(1) and [Commissioner Goldsmith’s] threatened enforcement action ... [Petitioners] would have no claim.” Petitioners cite to Zappone, 349 Md. at 64-66 , 706 A.2d at 1069 -70 and Mardirossian v. Paul Revere Life Ins.

Co., 376 Md. 640, 642, 649 , 831 A.2d 60, 61, 65-66 (2003), and asserts that “[t]his Court has twice held that parties are not required ²⁴ to exhaust ‘common law’ claims in administrative hearings before the [Insurance] Commissioner.” Petitioners’ reliance on these cases is misplaced. In Zappone, 349 Md. 45, 50 , 706 A.2d 1060, 1062 , this Court considered whether “the provisions of the Insurance [Article] pertaining to unfair trade practices by insurers and their agents provide[d] [an] exclusive or primary remedy [to consumers] for alleged acts of fraud, negligent misrepresentation, and negligence by an insurer or agent in connection with the sale of insurance.” In the original complaint, Zappone, shareholder of a printing shop, filed suit against his insurance provider, Liberty Life Insurance Company, alleging fraud, negligent misrepresentation, and negligence. Id. at 52, 56 , 706 A.2d at 1064-65 . Observing that the Insurance Article did not provide an exclusive or primary remedy to redress Zappone’s “recognized common law causes of action sounding in deceit and negligence[,]” we held that the claim was “wholly independent of the [Insurance Article’s] Unfair Trade Practices subtitle.” Id. at 65-68 , 706 A.2d at 1071 .

We reasoned: No interpretations or applications of the Insurance Code or of any regulations by the Insurance Commissioner are involved. Instead, under the plaintiffs allegations and theory of the case, their right to recover money damages is totally dependent upon the common law tort principles applicable to deceit and negligence actions. ... Id. at 67 , 706 A.2d at 1071 . Similarly in Mardirossian, 376 Md. at 642 , 831 A.2d at 61 , this Court considered whether “Maryland law provide[d] a judicial cause of action, entirely independent of the Maryland Insurance [Article], for a claim to compel specific performance on an oral contract for disability insurance[.]” We observed that “the General Assembly did not intend that the Insurance Commissioner’s authority, to restrain unfair practices, [under the Unfair and Deceptive Trade Practices subtitle of the Insurance Article], modified Maryland common law contract enforceability principles.” Id. at 649 , 831 A.2d at 65 .

Accordingly, we held that “[t]he Maryland common law contract ²⁵ remedy [was] fully concurrent [with the administrative remedy under the Insurance Article], and may be pursued in court without exhausting the administrative remedy. ...” Id. Zappone and Mardirossian are distinguishable from the case at bar, since the claims advanced in those cases “were treated as common law in nature because they existed without an essential underpinning found in the Insurance Article.” Carter, 420 Md. at 630 , 24 A.3d at 736 . Here, Petitioners’ claim is dependent upon the statutory scheme because it is predicated on how the MIA interprets and will enforce Ins. § 16-118. In Petitioners’ complaint, they alleged, “[Petitioners] bring this action solely to challenge the retroactive application of the [Ins. § 16-118]” because “[t]he [MIA] ... advised [Petitioners] that the [statute’s] requirements must be applied to [Petitioners] existing, in-force policies.” Similarly, in support of Petitioners’ contention that Commissioner Goldsmith’s statement did not constitute a “threatened act” under Ins. § 2-210, they alleged: [Commissioner Goldsmith] simply disclosed her view that [Ins. § 16-118] is retroactive. ...

It was a statement of belief about what the General Assembly required the Commissioner to do when it enacted the law. Nothing in the statutory text indicates that the General Assembly intended to require litigants to exhaust'administrative remedies when the Commissioner, in an informal, non-public meeting, shares an opinion that a particular law is retroactive. As the Court of Special Appeals concluded, although Petitioners’ claim “may lie in constitutional law, the entirety of their claims pertain to how the Commissioner propose[d] to interpret and enforce the statutory scheme and how the