Zappone v. Liberty Life Insurance

⁵⁰ ELDRIDGE, Judge. We issued a writ of certiorari in this case to determine if the provisions of the Insurance Code pertaining to unfair trade practices by insurers and their agents provide the exclusive or primary remedy for alleged acts of fraud, negligent misrepresentation, and negligence by an insurer or agent in connection with the sale of insurance. The court below answered this question in the affirmative, holding that an aggrieved insured was precluded from maintaining a common law tort action against an agent and an insurer without first invoking and exhausting the administrative and judicial review remedy provided by the Insurance Code. We shall reverse.

I. Before turning to the facts of this case, it will be useful to review briefly the pertinent provisions of the Insurance Code. The General Assembly, by Ch. 757 of the Acts of 1947, enacted a new subtitle as part of the Insurance Code, consisting of fifteen new sections, and titled “Unfair and Deceptive Practices.” At the time the present litigation was instituted and decided by the court below, this subtitle was codified in Maryland Code (1957, 1994 RepLVol.), Art. 48A, subtitle 15, §§ 212-240J, denominated “Unfair Trade Practices.” 1 The purpose of the 1947 enactment, as set forth in Ch. 757, and codified as Art. 48A, § 212, was as follows: “ § 212. Purposes of subtitle. “The purpose of this subtitle is to regulate trade practices in the business of insurance in accordance with the intent of ⁵¹ Congress as expressed in the Act of Congress of March 9, 1945 (Public Law 15, 79th Congress, ch. 20, 50 U.S. Stat. at Large 33), by defining, or providing for determination of, ali such practices in this State which constitute unfair methods of competition or unfair or deceptive acts or practices and by prohibiting the trade practices so defined or determined.” The General Assembly has from time to time added some provisions to the 1947 statute. Nevertheless, the substance of the 1947 enactment has largely remained intact.

Some of the provisions of the Unfair Trade Practices subtitle which may be pertinent to the issue in this case are as follows. Art. 48A, § 217, prohibits any person from, inter alia, making or causing to be made any “statement misrepresenting ... the benefits or advantages” because of any insurance policy. Section 218, inter alia, prohibits a statement or representation with respect to the conduct of insurance business “which is untrue, deceptive or misleading.” Section 233(d)(1) makes it a “fraudulent insurance act” for a person to make, knowingly or willfully, “any false or fraudulent statement or representation ... with reference to any application for insurance.” Section 216 authorizes the Insurance Commissioner to define unfair practices in the business of insurance in addition to those unfair practices defined in the subtitle. The general administrative remedy for violations of the Unfair Trade Practices subtitle is contained in § 215.

That section provides for charges of unfair trade practices to be made to the Insurance Commissioner, notices of hearings, intervention by interested persons, hearings before the Commissioner, the Commissioner’s issuance of cease and desist orders, and judicial review of the cease and desist orders. Section 216 provides for an administrative hearing remedy with respect to practices not defined as unfair practices in the subtitle but determined by the Commissioner to be unfair trade practices. That section provides for injunctions if the unfair practice continues after a final administrative determination. Other sections of the Unfair Trade Practices subtitle contain specific remedial provisions for violations of the partic ⁵² ular section involved.

See, e.g., § 230A (Commissioner can order monetary penalties and restitution if the section is violated); § 233 (criminal penalties); § 234AA(g) (fine imposed by the Commissioner); § 234C (Commissioner may order an insurer to accept a particular risk). Moreover, Art. 48A, §§ 35-40, provide an administrative and judicial review remedy generally to enforce the provisions and purposes of the Insurance Code. Furthermore, Art. 48A, § 55, authorizes the Insurance Commissioner to revoke or suspend an insurer’s license if the insurer “[vjiolates any provision of this article” or “[kjnowingly fails to comply with any lawful rule, regulation or order of the Commissioner,” and § 55A authorizes monetary penálties and restitution in lieu of or in addition to revocation or suspension.

II

As the case was decided in favor of the defendants upon their motions to dismiss and for summary judgment, we set forth the facts in the light most favorable for the plaintiffs. The basic facts are as follows. The plaintiffs and petitioners in the present case are Ricardo D. Zappone and PrinL-A-Copy, Inc. Zappone is the sole shareholder of Print-A-Copy, a small business engaged in the printing, copying, and office supply trade in Montgomery County, Maryland. In addition to being sole shareholder, Zappone is also the president and an employee of Print-A-Copy.

The respondents are Liberty Life Insurance Company, First Financial Resources, Inc., and William Ray Miller. First Financial is an independent insurance agency owned and operated by Miller and his wife. At all times relevant to this proceeding, First Financial was the licensed managing general agency and Miller was the licensed general agent for Liberty Life in the State of Maryland. In March 1989, Miller and First Financial contacted Zap-pone concerning the purchase of life insurance from Liberty Life.

Zappone, then 62 years of age, informed Miller that he wished to purchase a life insurance policy that, in addition to ⁵³ yielding benefits in the event of his premature death, would build up a large cash value relatively quickly to provide funds for his anticipated retirement in approximately twelve years. Miller indicated that he would attempt to procure from Liberty Life a policy meeting these stated needs, and Zappone executed an application for life insurance with Liberty Life. During the succeeding months, Miller described to Zappone a life insurance plan called the “Executive Wealth Builder II,” which he indicated would meet Zappone’s needs. This plan consisted of a life insurance policy with a face amount of $1,000,000.00 that could be used as a deferred compensation plan to accumulate sizable cash value in a short period of time.

Using several of Liberty Life’s computer-generated illustrations of policy performance, Miller told Zappone that the policy could be fully funded by a one time premium payment of $500,000.00, that no additional premium payments would be required in order for the policy to perform and accumulate cash value as represented, and that the policy would accumulate sufficient retirement funds within twelve years. In addition to the one-time $500,000.00 premium payment, Miller told Zappone that an additional payment of $10,000.00 in “earnest money” to act as a binder would be required to put the policy into force. Based upon these representations, Zappone agreed to purchase the policy. At Miller’s suggestion, Zappone financed the purchase of the policy through the use of a “split dollar” agreement between himself and Print-A-Copy.

Pursuant to this arrangement, Print-A-Copy loaned Zappone $510,000.00 to pay the policy’s premium, and Zappone granted Print-A-Copy a security interest in the proceeds of the policy up to the amount of the loan. Print-A-Copy obtained a loan from Maryland National Bank in the amount of $510,000.00, and assigned its security interest in the policy to the bank as security for the loan. Print-A-Copy agreed to this split dollar arrangement because Miller represented to Zappone that the interest paid by Print-A-Copy on the loan would be deductible from its tax returns on a yearly basis. After obtaining ⁵⁴ the loan, Print-A-Copy delivered four checks totaling $510,-000.00 to Miller, representing payment of the policy premium.

In July 1989, Liberty Life issued an insurance policy in Zappone’s name. The policy, however, called for the payment of monthly premiums instead of a one-time premium, as had been represented to Zappone by Miller and First Financial. Shortly thereafter, at First Financial’s request, Liberty Life converted this policy to a single premium policy. Subsequently, Zappone learned from his tax advisor that the amount of interest paid by Print-A-Copy on the loan from Maryland National Bank was not deductible on Print-A-Cop/s tax returns, and that Miller’s representations in this regard were not accurate.

When confronted with this information, however, Miller continued to represent to Zappone that the interest payments were tax deductible. In May 1990, Liberty Life notified Zappone by letter that Zappone’s $510,000.00 premium payment exceeded, by $407,-034.48, certain maximum limits established by tax legislation enacted by Congress in 1988. 2 This letter advised Zappone that he would be taxed on any policy distributions in excess of the amount of premiums paid into the policy if his policy premiums exceeded the new maximum limits. The letter suggested several options that would satisfy the statutory requirements, including: (1) depositing the excess premium amount into an “advance premium deposit account,” which would automatically pay the maximum allowable statutory amounts into the policy, while the interest on the account would be taxed annually, and Zappone could withdraw interest or principal at any time; (2) depositing the excess amount into a “side fund account,” which would operate like an advance premium deposit account but the interest would be tax deferred and Zappone would not have access to the interest as it accrued; (3) refunding the excess amount to Zappone, which would require Zappone to pay an annual premium; or (4) ⁵⁵ keeping the entire amount in the policy, in which case he would be taxed on excess policy distributions as initially described in the letter. In addition, this letter stated that Liberty Life would automatically place the excess premium into an advance premium deposit account if Zappone failed to make an election by May 30, 1990.

Upon receiving the notice from Liberty Life, Zappone contacted Miller for advice on how to proceed. Miller allegedly told Zappone not to worry about the letter, and that he would “take care of it.” Believing that Miller was making the necessary arrangements, Zappone did not respond to Liberty Life’s notice. In July 1990, after receiving no response from Zappone, Liberty Life deposited the excess premium amount in an advance premium deposit account in accordance with its May notice to Zappone, and Liberty Life sent Zappone a letter to this effect. Upon receipt of this letter, Zappone again contacted Miller, who advised him to execute a “special side fund agreement.” 3 Miller told Zappone that the creation of this agreement would solve any tax problems associated with the large premium amount and without creating new tax liabilities or reducing the policy’s cash value.

Relying on these representations, Zappone signed the special side fund agreement on July 30, 1990. Liberty Life acknowledged its receipt of this agreement in January 1991, and it switched the policy from one funded by an “advanced premium deposit” to one funded by a “special side fund agreement.” In May or June 1992, Zappone first learned from an estate planning specialist that the creation of the special side fund agreement, and the issuance of a monthly premium insurance policy, would prevent the policy he received from performing ⁵⁶ as represented by Miller and Liberty Life unless substantial additional premiums were paid. Specifically, Zappone learned that at the end of the twelfth policy year, when he intended to begin withdrawing cash from the policy, the policy’s cash value would be roughly $600,000.00, substantially less than the face value of the policy and the amount represented to him by Miller, and would be insufficient to fund his retirement. Thereafter, Zappone filed a multi-count complaint in the Circuit Court for Montgomery County, alleging fraud, negligent misrepresentation, and negligence.

The defendants were Miller, First Financial, and Liberty Life. The complaint was amended on two occasions, the second time on December 28, 1994, after the expiration of the three-year statute of limitations. The changes brought about by the second amended complaint were the addition of Print-A-Copy as a party plaintiff and the assertion of damage claims against the defendants arising from Prinb-A-Copy’s inability to deduct, on its corporate tax returns, the interest paid on its loan from Maryland National Bank. The second amended complaint included eight counts.

Counts I-IV included negligence and fraud claims by Zappone and Print-A-Copy against all three defendants. Counts V-VII included new fraud and negligence claims by Print-A-Copy alone against all three defendants. Count VIII included a negligence claim by Zappone alone against Liberty Life alone. Following extensive discovery, all three defendants filed various motions for summary judgment and dismissal.

The circuit court held a hearing on the motions on September 14 and September 18, 1995. Liberty Life’s motion to dismiss count VIII was not opposed by the plaintiffs. After the hearing, the court granted Liberty Life’s motion to dismiss count VIII. The court granted summary judgment for all three defendants as to counts V and VI on the ground that they were barred by the statute of limitations.

The court specifically found that those counts, which were asserted for the first time in the second amended complaint, did not relate back to the filing of the initial complaint because they constituted new causes of action. With respect to the remaining ⁵⁷ counts (I-IV and VII), the circuit court denied the defendants’ motions for summary judgment but granted their motions to dismiss. The court determined that the remedial provisions of the Insurance Code constituted the exclusive remedy for all claims of unfair or deceptive trade practices by insurers or insurance agents in connection with the sale of insurance. The court ruled that, because the second amended complaint contained claims and raised issues expressly covered by these statutory provisions, the plaintiffs’ sole remedy for these alleged violations was the administrative remedy before the Insurance Department.

In support of this conclusion, the circuit court relied upon the decision of the Court of Special Appeals in Vicente v. Prudential Ins. Co. of America, 105 Md.App. 13 , 658 A.2d 1106 (1995). Thereafter, Zappone and Print-A-Copy timely appealed to the Court of Special Appeals. Prior to briefing and argument in that court, Zappone and Print-A-Copy filed a petition for a writ of certiorari in this Court, which we granted.

Zappone v. Liberty Life Ins., 341 Md. 313 , 670 A.2d 465 (1996).

III

The case relied upon by the court below, Vicente v. Prudential Ins. Co. of America, supra, 105 Md.App. 13 , 658 A.2d 1106 , was a tort suit brought by two insureds against a health insurer and its agent, alleging fraud, negligent misrepresentation, and negligent supervision based on the agent’s alleged misrepresentation that the insurer was licensed to sell insurance in Maryland and that the insurer met the capitalization requirements imposed by the Insurance Code and regulations. The plaintiffs in Vicente conceded that the wrongs alleged in their complaint are prohibited by the Unfair Trade Practices subtitle of the Insurance Code, Art. 48A, §§ 212-240J. The plaintiffs, however, had not invoked their administrative remedy under the Insurance Code.

They argued that the Insurance Commissioner’s jurisdiction under the Unfair Trade Practices subtitle and a court’s jurisdiction over a common law tort action were fully concurrent, and that a complainant need not ⁵⁸ first invoke and exhaust the administrative remedy under the Insurance Code before maintaining a common law tort action. The Court of Special Appeals in Vicente rejected the plaintiffs’ argument and held that the remedies set forth in the Unfair Trade Practices subtitle, along with §§55 and 55A of Art. 48A, are “exclusive.” Vicente, 105 Md.App. at 23 , 658 A.2d at 1111 . The intermediate appellate court’s exclusivity holding was chiefly based upon two of that court’s prior decisions, Veydt v. Lincoln Nat. Life Ins.

Co., 94 Md.App. 1 , 614 A.2d 1318 (1992), and Magan v. Medical Mutual, 81 Md.App. 301 , 567 A.2d 503 (1989). The Court of Special Appeals in Vicente also relied upon the “general exhaustion of remedies rule ... that, “where a statute provides a special form of remedy, the plaintiff must use that form [of remedy] rather than any other.’ ” Vicente, 105 Md.App. at 16 , 658 A.2d at 1107 , quoting Bits “N” Bytes v. C & P Telephone, 97 Md.App. 557, 573 , 631 A.2d 485, 494 (1993), cert. denied, 333 Md. 385 , 635 A.2d 425 (1994). The appellate court also relied upon this Court’s opinion in Muhl v. Magan, 313 Md. 462 , 545 A.2d 1321 (1988). Turning to the present case, Zappone and Print-A-Copy argue that the Court of Special Appeals’ decision in the Vicente case was erroneous, and that the circuit court erred in holding that the plaintiffs were required to invoke and exhaust their administrative remedy before the Insurance Commissioner.

They contend that neither the plain language of Article 48A, §§ 212-240J, nor the legislative history of these provisions, indicate that the General Assembly intended that all claims alleging fraud or negligence by an insurer and/or its agents in the sale of insurance were exclusively within the province of the Insurance Commissioner to resolve. The plaintiffs argue that, under this Court’s decisions, where a common law remedy and a statutory administrative remedy exist independently of each other, without any indication in either the statutory language or legislative history that the administrative remedy is exclusive or primary, the remedies are fully concurrent, and the claimant is not required to invoke and exhaust the administrative procedures prior to maintain ⁵⁹ ing a tort action in court. 4 Finally, the plaintiffs contend that the circuit court erred in holding that counts V and VI were barred by limitations. The defendants point out that all of Zappone’s and Print-A-Copy’s claims fall within the purview of the Unfair Trade Practices Act, Art. 48A, subtitle 15, which provides an extensive administrative scheme for the regulation of unfair trade practices in the sale of insurance in Maryland. They contend that the administrative remedy is exclusive, and that the statute, by implication, repeals any common law tort remedy to the extent that an administrative remedy is provided.

In support of their argument that the administrative remedy was intended to be exclusive, they point out that, under subtitle 15, an aggrieved claimant may file a complaint with the Insurance Commissioner, request an investigation and a hearing on the complaint, and, if dissatisfied with the Commissioner’s resolution of the matter, obtain judicial review in the circuit court, with a further right of appeal to the Court of Special Appeals. The defendants note that the Legislature furnished the Insurance Commissioner with broad remedial powers to redress violations of the statute, such as the power to suspend or revoke licenses to sell insurance, to impose significant monetary penalties, to order restitution for each violation, and to issue cease and desist orders to prevent the unfair trade practices during the pendency of any investigation. The defendants conclude, based upon the extensive and compre ⁶⁰ hensive nature of the statute, that the circuit court correctly held that the administrative remedy was exclusive. The defendants also assert that Print-A-Copy’s claims in counts V and VI were barred by limitations.

IV

A. Whenever the Legislature provides an administrative and judicial review remedy for 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. First, the administrative remedy may be exclusive, thus precluding any resort to an alternative remedy. Under this scenario, there simply is no alternative cause of action for matters covered by the statutory administrative remedy. Second, the 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. See, e.g., McCullough v. Wittner, 314 Md. 602, 613 , 552 A.2d 881, 886 (1989) (“Under circumstances like these, where a plaintiff has both an administrative remedy and an independent judicial action, and the administrative agency’s jurisdiction is deemed primary, it is appropriate for the trial court to retain, for a reasonable period of time, jurisdiction over the independent judicial action pending invocation and exhaustion of the administrative procedures”); Md.-Nat’l Cap. P. & P. Comm'n v. Crawford, 307 Md. 1, 18 , 511 A.2d 1079, 1088 (1986) (“Once the administrative procedures are exhausted, the trial court may proceed [with both the independent judicial action and the administrative review action]; the plaintiff whose case is meritorious may be entitled to whatever relief is available under either the independent judicial action or the administra ⁶¹ tive/judicial review remedy”); Bd. of Ed. for Dorchester Co. v. Hubbard, 305 Md. 774, 792 , 506 A.2d 625, 634 (1986). Third, the 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.

Md.-Nat’l Cap. P. & P. Comm’n v. Crawford, supra, 307 Md. at 22-31 , 511 A.2d at 1090-1094 ; Bd. of Ed. for Dorchester Co. v. Hubbard, supra, 305 Md. at 791 , 506 A.2d at 633 ; Md.-Nat’l Cap. P. & P. v. Wash. Nat’l Arena, 282 Md. 588, 600 , 386 A.2d 1216, 1225 (1978).

Which one of these three scenarios is applicable to a particular administrative remedy is ordinarily a question of legislative intent. Md. Reclamation v. Harford County, 342 Md. 476, 493 , 677 A.2d 567 , 576 (1996); Md.-Nat’l Cap. P. & P. Comm’n v. Crawford, supra, 307 Md. at 14 -15 n. 5, 511 A.2d at 1086 n. 5; White v. Prince George’s Co., 282 Md. 641, 649 , 387 A.2d 260, 265 (1978). 5 Occasionally, the General Assembly will expressly set forth its intent in this regard. For an example of express legislative intent with regard to each of these three categories, see Code (1957, 1996 Kepl.Vol., 1997 Supp.), Art. 25A, § 5(U) (“The [administrative and judicial] review proceedings provided by this subsection shall be exclusive”); Code (1957, 1997 RepLVol.), Art. 41, § 4-102.1(k) (specifying that the remedy is primary by stating that “[n]o court shall entertain an inmate’s grievance or complaint within the jurisdiction of the Inmate Grievance Office or the Office of Administrative Hearings unless and until the complainant has exhausted the remedies as provided