{ "id": 1449561, "name": "William A. WACASER v. INSURANCE COMMISSIONER", "name_abbreviation": "Wacaser v. Insurance Commissioner", "decision_date": "1995-06-19", "docket_number": "95-143", "first_page": "143", "last_page": "150", "citations": [ { "type": "official", "cite": "321 Ark. 143" }, { "type": "parallel", "cite": "900 S.W.2d 191" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "254 Ark. 975", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1624135 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/ark/254/0975-01" ] }, { "cite": "307 Ark. 363", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902484 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0363-01" ] }, { "cite": "35 Ark. App. 47", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6647332 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark-app/35/0047-01" ] }, { "cite": "299 Ark. 439", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888333 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0439-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-71-209", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "opinion_index": 0 }, { "cite": "285 Ark. 189", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877695 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/285/0189-01" ] }, { "cite": "311 Ark. 125", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896952 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/311/0125-01" ] }, { "cite": "310 Ark. 772", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898943 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0772-01" ] }, { "cite": "320 Ark. 110", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451311 ], "weight": 5, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0110-01" ] } ], "analysis": { "cardinality": 663, "char_count": 11389, "ocr_confidence": 0.893, "pagerank": { "raw": 1.7793348403798397e-07, "percentile": 0.7132433203634652 }, "sha256": "65982f59792e4e11bf70c9155665ff75afd51cb88278739f027eccb6bdf2d608", "simhash": "1:a30f5846229cd616", "word_count": 1886 }, "last_updated": "2023-07-14T20:21:00.559388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "William A. WACASER v. INSURANCE COMMISSIONER" ], "opinions": [ { "text": "David Newbern, Justice.\nWilliam Wacaser, the appellant, has been an insurance salesman licensed in Arkansas. The Insurance Commission received a number of complaints about Mr. Wacaser\u2019s sales practices and initiated an investigation. The investigation concluded in a hearing before the appellee, Lee Douglas, the Insurance Commissioner. As a result of the hearing, the Commissioner concluded Mr. Wacaser had violated the Insurance Code in seven instances, and he revoked Mr. Wacaser\u2019s license. The Circuit Court affirmed the decision as do we.\nThe violations found by the Commissioner were of a number of provisions of the Insurance Code. Ark Code Ann. \u00a7\u00a7 23-66-201 through 23-66-408 (Repl. 1994). Mr. Wacaser contests most of the Commissioner\u2019s conclusions as not being based upon substantial evidence. We need not address all of the arguments made on each of the violations found. It is enough for us to point up several instances in which the Commissioner\u2019s conclusions were clearly justified.\n1. Standard of review\nGenerally, when reviewing an administrative agency decision, we review the entire record to determine whether there is any substantial evidence to support the decision, whether it was arbitrary and capricious, and whether there was an abuse of discretion. Arkansas Appraiser Lic. & Cert. Bd. v. Biles, 320 Ark. 110, 895 S.W.2d 901 (1995); In re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992).\nWe review the whole record to see if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Arkansas Appraiser Lic. & Cert. Bd. v. Biles, supra; Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).\nAdministrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures, to determine and analyze underlying legal issues affecting their agencies. That accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. Arkansas Appraiser Lic. & Cert. Bd. v. Biles, supra; Wright v. Arkansas State Plant Bd., supra.\nTo establish an absence of substantial evidence it must be demonstrated that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusions. Arkansas Appraiser Lic. & Cert. Bd. v. Biles, supra.\n2. Rebating\nThe \u201cpaying or allowing, or giving, or offering to pay, allow, or give, directly or indirectly, as inducement to the insurance contract. .. any valuable consideration or inducement whatever not specified in the contract\u201d constitutes a \u201crebate\u201d and thus an unfair trade practice according to \u00a7 23-66-206(8).\nUpon a finding that an agent has engaged in rebating, the Commissioner may, within his discretion, revoke the license of an agent who knew or reasonably should have known of the violation. \u00a7 23-66-210(a)(2).\nAt the beginning of the hearing the following colloquy occurred:\nMR. HENDRICKS [Counsel for Mr. Wacaser]: Mr. Commissioner I\u2019m not going to bore you with an opening statement. I might save you a little bit of time in that I don\u2019t think there\u2019s any question because the proof will show that Mr. Wacaser committed an act or acts which would be considered rebates within the meaning of the code. And as a matter of fact, he\u2019s guilty of that and I just don\u2019t understand the necessity for taking up your time and having to hear testimony on that. We admit that.\nMR. DOUGLAS: Okay. On the particular issue on the rebating, there are several allegations here.\nMR. HENDRICKS: The allegations go to show, Mr. Commissioner, that from time to time [Mr. Wacaser] would pay part of policyholder\u2019s association fee for the policyholder in order to write the business. He\u2019s freely admitted to that in the other hearing. There\u2019s no dispute about it.\nMr. Wacaser now argues that no cease and desist order, as required by \u00a7 23-66-210(a), was entered by the Commissioner and that there is no evidence that he knew that the payment by him of a portion of \u201cassociation fees\u201d owed by his client constituted rebating.\nMr. Wacaser\u2019s admission, through his counsel\u2019s statement, of giving rebates \u201cwithin the meaning of the code\u201d could not have been clearer. Later in the hearing he testified he did not know that what he was doing constituted rebating. No authority is offered, however, to the effect that the Commissioner was required to believe that testimony. In view of the clarity of \u00a7 23-66-206(8) and Mr. Wacaser\u2019s earlier plea of \u201cguilty,\u201d offered to \u201csave time\u201d which might otherwise have been devoted to presenting evidence on the rebating issue, we can hardly say the evidence on that issue was insufficient or that the Commissioner was not justified in finding that it had been admitted.\nMr. Wacaser offered no defense at the hearing concerning the requirement of a cease and desist order, and we will not consider that argument. See Alcoholic Beverage Control Div. v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985).\n3. Harassment\nMs. Lynette Hardin testified she met Mr. Wacaser at her place of temporary employment, Service Merchandise. He later called and told her she was \u201cgoing to go to work for him\u201d in his insurance business at his home. She went out with him to dinner and to lunch and a movie the following day. She declined further invitations, but Mr. Wacaser persisted in calling her, and, she was told, calling and speaking to coworkers at Service Merchandise \u201chundreds of times.\u201d She was also informed that he told persons with whom he spoke at Service Merchandise that he was an insurance agent who had a \u201cpolicy on\u201d her and had lost some information about her he needed. Mr. Wacaser also called the office of a physician for whom she worked, seeking information about her. He called another former employer and said Ms. Hardin had applied for a job with him and he was seeking information about her.\nMs. Hardin notified Mr. Wacaser that she wanted nothing further to do with him and changed to an unlisted telephone number, but Mr. Wacaser sent mail to her address and left items on her car. She felt she was being \u201cstalked\u201d and reported Mr. Wacaser to the prosecutor. He was convicted of a misdemeanor for harassing communications. See Ark. Code Ann. \u00a7 5-71-209 (Repl. 1993).\nAnother instance of harassment was the subject of testimony by Mike Boyce. Mr. Boyce\u2019s wife had discussed insurance with Mr. Wacaser who then sought to discuss it with Mr. Boyce who apparently did not want to deal with it while he was working at his grocery store and asked Mr. Wacaser not to call him there. Mr. Boyce testified that Mr. Wacaser \u201cwent off his rocker\u201d and made a threat of physical violence. He testified that a couple of months later he found all the locks at his business had been \u201csuper glued.\u201d Later on the day he discovered the problem with the locks he received a call from a person who said, \u201cYou little smart aleck, I\u2019ll get you again.\u201d He identified the voice as that of Mr. Wacaser.\nThe Commissioner may revoke any license issued by him if, after a hearing, he finds \u201c(1) Any cause for which issuance of the license could have been refused had it then existed and been known to the commissioner; (2) Violation of or noncompliance with any applicable provision of the laws of this state, ...\u201d \u00a7 23-64-218(a). Mr. Wacaser does not contest the fact that he was convicted of harassing communications with Ms. Hardin, and we have no doubt that no license would have issued to Mr. Wacaser had the incidents with Ms. Hardin and Mr. Boyce been a part of his reputation when application for the license was made. A criterion for issuance of an agent\u2019s license is a \u201cgood personal and business reputation.\u201d \u00a7 23-64-204(a)(4).\nThe evidence on these matters was substantial.\n4. Misrepresentation\nThere was substantial evidence with respect to at least one instance of misrepresentation to a client. Mr. Wacaser sold health insurance to Mr. and Mrs. Keener who testified he told them they would have immediate dental coverage. Mrs. Keener was informed upon calling the issuing insurance company that the policy had to be in effect for one year before the dental coverage became effective. The Keeners received an apology and a refund of their premium from the company. Mr. Keener testified that Mr. Wacaser thereafter called his home and accused him of \u201cinsurance scamming\u201d and threatened to \u201cmake it hard\u201d for him to obtain insurance.\nMisrepresentation with respect to an application for insurance is a violation of the Code, \u00a7 23-66-305, and constitutes a ground for revocation of an agent\u2019s license, \u00a7 23-60-108. The evidence of misrepresentation to the Keeners was substantial.\n5. Fair hearing\nMr. Wacaser contends he did not receive a hearing free from the appearance of impropriety because of the participation of Mr. Ronald Sheffield, Deputy Commissioner. He testified he had a physical altercation with Mr. Sheffield at a golf driving range prior to the investigation into Mr. Wacaser\u2019s activities as an insurance agent and thus that Mr. Sheffield should not have had any part in the matter. Mr. Sheffield flatly denied that any such altercation occurred and denied that he had ever met Mr. Wacaser prior to his conducting an informal hearing, at the behest of a Department investigator, as part of the investigation of Mr. Wacaser.\nMr. Sheffield did not participate further in Mr. Wacaser\u2019s case after learning that a freedom of information request had been made by Mr. Wacaser with respect to an incident in which Mr. Sheffield had been accused of misconduct, not a part of the alleged altercation with Mr. Wacaser, at a municipal golf course.\nA fair trial by a fair tribunal is a basic requirement of due process. This rule applies to administrative agencies as well as to courts. See Sexton v. Ark. Supreme Ct. Comm, on Profess. Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989); See also Arkansas Elec. Energy Consumers v. Ark. Pub. Serv. Comm\u2019n, 35 Ark. App. 47, 813 S.W.2d 263 (1991). Administrative agency adjudications are also subject to the \u201cappearance of bias\u201d standard applicable to judges. Acme Brick Co. v. Missouri Pac. R.R., 307 Ark. 363, 821 S.W.2d 7 (1991). As the underlying philosophy of the Administrative Procedures Act is that fact finding bodies should not only be fair but appear to be fair, it follows that an officer or board member is disqualified at any time there may be reasonable suspicion of unfairness. Ark. Racing Comm\u2019n v. Emprise Corp., 254 Ark. 975, 497 S.W.2d 34 (1973).\nMr. Wacaser testified he felt only two of the complaints against him \u2014 none of the ones discussed above \u2014 with the Insurance Department had been prompted by someone at the Department. In view of that statement and the fact that Mr. Sheffield had only a limited participation in the revocation hearing prior to his withdrawal, the hearing\u2019s appearance of impartiality was not compromised. We note also the Commissioner\u2019s argument that, although Mr. Wacaser was vigorously represented by counsel, no mention of Mr. Sheffield\u2019s participation was made until the waning hours of a six-months long investigation.\nAffirmed.", "type": "majority", "author": "David Newbern, Justice." } ], "attorneys": [ "Lowber Hendricks, for appellant.", "J. Denham, for appellee." ], "corrections": "", "head_matter": "William A. WACASER v. INSURANCE COMMISSIONER\n95-143\n900 S.W.2d 191\nSupreme Court of Arkansas\nOpinion delivered June 19, 1995\nLowber Hendricks, for appellant.\nJ. Denham, for appellee." }, "file_name": "0143-01", "first_page_order": 193, "last_page_order": 200 }