{ "id": 8522439, "name": "NORTH CAROLINA REINSURANCE FACILITY, Petitioner v. JAMES E. LONG, Commissioner of Insurance of the State of North Carolina, and UNIVERSAL INSURANCE COMPANY, Respondent; UNIVERSAL INSURANCE CO., Petitioner v. JAMES E. LONG, Commissioner of Insurance of the State of North Carolina, and the NORTH CAROLINA REINSURANCE FACILITY, Respondents", "name_abbreviation": "North Carolina Reinsurance Facility v. Long", "decision_date": "1990-04-03", "docket_number": "No. 8910SC509", "first_page": "41", "last_page": "49", "citations": [ { "type": "official", "cite": "98 N.C. App. 41" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "158 S.E.2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "17", "parenthetical": "emphasis in the original" } ], "opinion_index": 0 }, { "cite": "272 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572279 ], "year": 1967, "pin_cites": [ { "page": "229", "parenthetical": "emphasis in the original" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0227-01" ] }, { "cite": "208 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 741", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569885 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0741-01" ] }, { "cite": "192 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 381", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551061 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0381-01" ] }, { "cite": "233 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "541" } ], "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "year": 1977, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0406-01" ] }, { "cite": "218 S.E.2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568596 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0381-01" ] }, { "cite": "273 S.E.2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564256, 8564233, 8564290, 8564187 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0107-03", "/nc/301/0107-02", "/nc/301/0107-04", "/nc/301/0107-01" ] }, { "cite": "269 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "559" }, { "page": "577" } ], "opinion_index": 0 }, { "cite": "300 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562647 ], "year": 1980, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0381-01" ] } ], "analysis": { "cardinality": 732, "char_count": 17334, "ocr_confidence": 0.757, "pagerank": { "raw": 1.8464017253384244e-07, "percentile": 0.7229035360748831 }, "sha256": "1b0cf3688e07fa85f5251c4678f4703eab03207894d856879262feb71450cd8c", "simhash": "1:8da8d28b24368452", "word_count": 2746 }, "last_updated": "2023-07-14T19:26:07.401162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and LEWIS concur." ], "parties": [ "NORTH CAROLINA REINSURANCE FACILITY, Petitioner v. JAMES E. LONG, Commissioner of Insurance of the State of North Carolina, and UNIVERSAL INSURANCE COMPANY, Respondent UNIVERSAL INSURANCE CO., Petitioner v. JAMES E. LONG, Commissioner of Insurance of the State of North Carolina, and the NORTH CAROLINA REINSURANCE FACILITY, Respondents" ], "opinions": [ { "text": "JOHNSON, Judge.\nAppellee North Carolina Reinsurance Facility (\u201cFacility\u201d) is a nonprofit unincorporated entity created by the 1973 General Assembly and organized pursuant to Article 25A of Chapter 58 of the North Carolina General Statutes (\u201cFacility Act\u201d). The Facility was created to insure the availability of automobile insurance to all North Carolina drivers. Appellant, Universal Insurance Company (\u201cUniversal\u201d), a licensed automobile liability insurer, is a member of the Facility.\nUniversal and all other members of the Facility are required to issue liability policies to \u201celigible risk\u201d applicants, but may cede the policies to the Facility. By ceding the policies, each insurance company receives reimbursement for its underwriting expenses by retaining a certain percentage of the premiums collected. The Facility determines the ceding expense allowance for each company for each fiscal year by analyzing the data each company submits. Such data is designed to illustrate the company\u2019s expenses attributable to the ceded policies for the preceding calendar year. The ceding expense allowance, calculated by the Facility for each company, is intended to reimburse each company for its expenses up to a maximum cap which is equal to the average ceding expense allowance for all member companies. Each company\u2019s ceding expense allowance is developed based upon an annual \u201ccall for expense experience\u201d which is annually submitted by all companies to the North Carolina Rate Bureau.\nIn April 1987, Universal notified the Facility that it wanted to change, retroactively, the data it had submitted for the years 1984 and 1985. Universal alleged that all data was based upon allocations of combined automobile liability and physical damage expenses. If further advised the Facility that as a result of its new allocation method Facility owed Universal an additional ceding expense allowance of $229,282.00 for 1 October 1985 through 30 September 1986.\nShortly thereafter, members of the Facility met with representatives of Universal and Universal was advised that the Facility staff did not have the authority to grant Universal\u2019s request. It was also advised that the request would have to be presented to the Facility\u2019s Board of Governors (\u201cBoard\u201d) for consideration. The Board is comprised of executives from five insurance companies who are members of the Facility and four insurance agents appointed by the Commissioner of Insurance.\nOn 24 June 1987, the Board met and Universal\u2019s request was heard. At the conclusion of Universal\u2019s presentation and after discussion and deliberation, the Board unanimously voted: \u201c(i) to deny the request for retroactive change in the allocation method and retroactive increase in the ceding expense allowance for the period October 1, 1986 through September 30, 1987; and (ii) to defer action on the request with respect to the period October 1, 1985 through September 30, 1986.\u201d\nOn 26 August 1987, the Board met once again to consider Universal\u2019s request for the period 1 October 1985 through 30 September 1986. The request was subsequently denied. Universal appealed this decision to the Commissioner of Insurance (\u201cCommissioner\u201d) by letters dated 22 September 1987 and 23 September 1987. The Commissioner thereafter appointed a hearing officer to review the action of the Board.\nAn order issued 6 January 1988 by the Commissioner through his designated hearing officer resulted in the disapproval of the action taken by the Board. Through petitions dated 8 February 1988 and 10 February 1988, both the Facility and Universal sought judicial review of the Commissioner\u2019s order. Such review was requested of the Superior Court of Wake County.\nOral arguments on the matter were heard in superior court on 7 November 1988. On 5 December 1988, the Honorable B. Craig Ellis ruled in favor of the Facility and vacated the order of the Commissioner. Universal appealed in apt time.\nBy its first Assignment of Error, Universal contends that the trial court erred in vacating the order of the hearing officer. Universal argues that the order was entered pursuant to statutory authority and was supported by material and substantial evidence. We disagree.\nG.S. sec. 150B-43, a part of the Administrative Procedure Act (\u201cAPA\u201d), provides in part that\n[a]ny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision under this Article, unless adequate procedure for judicial review is provided by another statute, in which case the review shall be under such other statute.\nThe Department of Insurance is an \u201cagency\u201d subject to the provisions of APA, G.S. sec. 150B-2(1), and therefore the threshold question is whether \u201canother statute\u201d provides \u201cadequate procedure for judicial review.\u201d Our Supreme Court has held that adequate procedure for judicial review exists \u201conly if the scope of review is equal to that under present Article 4 of G.S. Chapter 150A.\u201d Effective 1 January 1986, G.S. Chapter 150A was recodified as G.S. Chapter 150B. Comr. of Insurance v. Rate Bureau, 300 N.C. 381, 395, 269 S.E.2d 547, 559, pet. reh\u2019g denied, 301 N.C. 107, 273 S.E.2d 300 (1980).\nAnother statute, namely the Facility Act, provides guidance for judicial review of decisions made by the Insurance Commissioner. G.S. sec. 58-37-65(f) of the Facility Act provides that \u201c[a]ll rulings or orders of the Commissioner . . . shall be subject to judicial review as approved by G.S. sec. 58-2-75.\u201d G.S. sec. 58-2-75(a) provides that \u201c[a]ny order or decision made, issued or executed by the Commissioner [of Insurance] . . . shall be subject to review in the Superior Court of Wake County on petition by any person aggrieved.\u201d Such appeals shall be based upon the transcript of the record for a review of the findings of fact and errors of law only. Cases involving judicial review before a court other than the Wake County Superior Court, by statutory interpretation and implication extends the application of G.S. sec. 58-2-75 to higher appeals, particularly, appeals to this Court. See State Farm Mutual Automobile Ins. Co. v. Com\u2019r of Insurance, 288 N.C. 381, 218 S.E.2d 364 (1975).\nG.S. sec. 58-2-75(c) is somewhat limited in that it merely provides that \u201c[t]he trial judge shall have jurisdiction to affirm or to set aside the order or decision of the Commissioner and to restrain the enforcement thereof.\u201d We find this provision to be virtually identical to the broader review set forth in G.S! sec. 150B-51(b). The standard of review set forth in G.S. sec. 150B-51 has come to be known as the \u201cwhole record\u201d test and provides that\nthe [trial] court reviewing a final decision may affirm the decision of the agency or remand the case for further proceedings. It may also reverse or modify the agency\u2019s decision if the substantial rights of the petitioners may have been prejudiced because the agency findings, inferences, conclusions, or decisions are:\n(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; . . .\nAs stated by the Supreme Court,\n[t]he \u201cwhole record\u201d test does not allow the reviewing court to replace the Board\u2019s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo. On the other hand, the \u201cwhole record\u201d rule requires the court, in determining the substantiality of evidence supporting the Board\u2019s decision, to take into account whatever in the record fairly detracts from the weight of the Board\u2019s evidence. Under the whole evidence rule, the court may not consider the evidence which in and of itself justifies the Board\u2019s result, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn.\nThompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).\nRecognizing that these two provisions (G.S. sec. 58-2-75 and G.S. sec. 150B-51) are comparable, we nonetheless hold that G.S. sec. 150B-51 is the controlling judicial review statute. To the extent that G.S. sec. 58-2-75 adds to and is consistent with the judicial review function of G.S. sec. 150B-51, we will proceed by applying the review standards articulated in both statutes.\nIt is a well-settled rule that the Commissioner has no authority other than that granted to him by statute. See G.S. sec. 58-2-40; Charlotte Liberty Mutual Ins. Co. v. State Ex Rel. Lanier, 16 N.C. App. 381, 192 S.E.2d 57 (1972). The Commissioner, in reviewing the actions of the Board, must \u201cissue an order approving the action or decision, disapproving the action or decision, or directing the Board of Governors to reconsider the ruling.\u201d G.S. sec. 58-37-65(c). In determining allowable credits, the Board is expected to evaluate each request on a case by case basis and may make reasonable exceptions when it is demonstrated that serious inequities may result from the application of Article XII of the Plan of Operation. Article XII, paragraph 9, in particular, provides that:\n[t]he Board shall make provisions for and promulgate rules for determining allowable credits to be applicable to newly admitted members and other members for whom the allowances developed under paragraphs (1) and (2) above are determined to be inappropriate. On a case by case basis, the Board, on its own motion or upon request, may also make reasonable exceptions for any member with respect to which it is determined to demonstrate that serious inequities result from the application of this Article or the rules promulgated pursuant thereto.\nIn the case sub judice, the issue before the Board was whether Universal was entitled, under Article XII of the Plan of Operation, to a retroactive amendment of its ceding expense allowance. The Board, following consideration, unanimously decided that Universal was not entitled to such an amendment. Upon appeal, it became the Commissioner\u2019s responsibility to determine whether the Board acted within and in accordance with the Plan of Operation. The Commissioner, through its hearing officer, concluded as a matter of law that the Board did not comply with Article XII, paragraph 9 of the Plan of Operation and that Universal suffered serious inequities as a result of such noncompliance. The trial court thereafter made the following Conclusions of Law:\n1. The decision by the Facility\u2019s Board of Governors to reject the request by Universal that it be allowed to change its 1984 and 1985 expense data based on retroactive adoption of its new expense allocation method did not violate Article XII, Paragraph 9 of the Facility\u2019s Plan of Operation.\n3. The order entered by the hearing officer on January 6, 1988 was erroneous as a matter of law, unsupported by material and substantial evidence and in excess of his statutory authority.\nGuided by the \u201cwhole record\u201d test, we must now look at the trial court\u2019s decision to determine whether any errors of law were committed.\nUniversal argues that it has suffered serious inequities as a result of the trial court\u2019s decision to vacate the order of the Commissioner to increase Universal\u2019s fiscal year expenses. In making such an argument, Universal contends that it made an honest mistake when choosing the appropriate allocation method. Universal does not, however, contend that the calculations were incorrect nor does it contend that the data which it reported to the Facility were incorrect. It simply contends that a different allocation method would have been more appropriate. Hence, Universal, not Facility, elected to use this allocation method and such fact cannot go unnoticed.\nIn disapproving the decision of the Board, the hearing officer, in essence, set out his own decision with respect to the treatment that should be afforded Universal on its ceding expense allowance. In doing so, he disregarded the fact that Universal\u2019s original calculations were correct given the allocation method it elected to adopt and use. The hearing officer also disregarded the effect of retroactively changing Universal\u2019s expense data on the average ceding expense allowance for all member companies as well as the ultimate effect such change would have on the public.\nThe Commissioner, not the superior court, is vested with the power to determine if Universal is entitled, under the Plan of Operation, to a retroactive amendment of its ceding expense allowance. However, the powers given to the Commissioner by G.S. sec. 58-37-40 do not permit the Commissioner to make findings of fact which are not supported by material and substantial evidence. In light of the above-mentioned facts, we find substantial evidence to support the trial court\u2019s order vacating the Commissioner\u2019s decision to increase Universal\u2019s ceding expense allowance. Assignment of Error number one is therefore overruled.\nBy its second Assignment of Error, Universal contends that the Board lacked statutory authority and jurisdiction to exercise adjudicatory powers. We have reviewed Universal\u2019s constitutional argument and find it to be improperly before this Court. Universal, in assigning this contention as error, has failed to comply with Rule 10 of the N.C. Rules of Appellate Procedure. Recognizing that we, in our discretion, may address an argument that fails to comply with Rule 10, we are compelled to state that the N.C. Supreme Court has firmly established that\nthe constitutionality of a statute will not be reviewed in the appellate court unless it was raised and passed upon in the proceedings below, City of Durham v. Mason, 285 N.C. 741, 208 S.E.2d 662 (1974), usually by the trial court. \u201c[W]e will not pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the court below.\u201d State v. Dorsett & Yow, 272 N.C. 227, 229, 158 S.E.2d 15, 17 (1967) (emphasis in the original).\nComr. of Insurance v. Rate Bureau, supra, at 428, 269 S.E.2d at 577. We therefore decline to address this argument.\nWe find Universal\u2019s last Assignment of Error to be wholly without merit, and we do not address it.\nFor all the foregoing reasons, the order of the superior court vacating the decision of the Commissioner of Insurance to retroactively increase Universal\u2019s ceding expense allowance is\nAffirmed.\nJudges COZORT and LEWIS concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Young, Moore, Henderson \u25a0& Alois, P.A., by Charles H. Young, Jr., R. Michael Strickland and Marvin M. Spivey, Jr., for petitioner-appellee.", "Howard, From, Stallings & Hutson, P.A., by William M. Black, Jr., for respondent-appellant." ], "corrections": "", "head_matter": "NORTH CAROLINA REINSURANCE FACILITY, Petitioner v. JAMES E. LONG, Commissioner of Insurance of the State of North Carolina, and UNIVERSAL INSURANCE COMPANY, Respondent UNIVERSAL INSURANCE CO., Petitioner v. JAMES E. LONG, Commissioner of Insurance of the State of North Carolina, and the NORTH CAROLINA REINSURANCE FACILITY, Respondents\nNo. 8910SC509\n(Filed 3 April 1990)\n1. Administrative Law \u00a7 5 (NCI3d)\u2014 Reinsurance Facility \u2014 appeal from superior court order overturning Commissioner of Insurance\nIn an appeal from a superior court ruling overturning an order of the Insurance Commissioner involving the North Carolina Reinsurance Facility, it was held that the controlling judicial review statute was N.C.G.S. \u00a7 150B-51; the review standards articulated in both N.C.G.S. \u00a7 150B-51 and N.C.G.S. \u00a7 58-2-75 were applied to the extent that N.C.G.S. \u00a7 58-2-75 adds to and is consistent with the judicial function of N.C.G.S. \u00a7 150B-51.\nAm Jur 2d, Administrative Law \u00a7\u00a7 610 et seq.\n2. Insurance \u00a7 1 (NCI3d)\u2014 Reinsurance Facility \u2014 ceding expense allowance \u2014 retroactive change \u2014 not allowed\nThere was substantial evidence to support a trial court order vacating the Commissioner of Insurance\u2019s decision to increase Universal\u2019s ceding expense allowance where Universal contended that it had made an honest mistake when choosing the allocation method for calculating the ceding expense allowance and did not contend that the calculations were incorrect or that the data which it reported to the Facility were incorrect. The hearing officer for the Insurance Commission set out his own decision with respect to the treatment which should be afforded Universal on its ceding expense allowance, and the powers given to the Commissioner by N.C.G.S. \u00a7 58-37-40 do not permit the Commissioner to make findings of fact which are not supported by material and substantial evidence.\nAm Jur 2d, Insurance \u00a7\u00a7 19, 1835, 1841.\n3. Appeal and Error \u00a7 3 (NCI3d)\u2014 Reinsurance Facility\u2014 retroactive change in expense ceding \u2014constitutional issue \u2014 not considered\nUniversal\u2019s constitutional contention that the board of the Reinsurance Facility lacked statutory authority and jurisdiction to exercise adjudicatory powers was not addressed where Universal failed to comply with Rule 10 of the N. C. Rules of Civil Procedure.\nAm Jur 2d, Insurance \u00a7\u00a7 19, 1835, 1841.\nAppeal by respondent from order entered 5 December 1988 by Judge B. Craig Ellis in WAKE County Superior Court. Heard in the Court of Appeals 8 November 1989.\nRespondent Universal Insurance Company appeals from an order vacating the decision of the Commissioner of Insurance to increase Universal\u2019s ceding expense allowances.\nYoung, Moore, Henderson \u25a0& Alois, P.A., by Charles H. Young, Jr., R. Michael Strickland and Marvin M. Spivey, Jr., for petitioner-appellee.\nHoward, From, Stallings & Hutson, P.A., by William M. Black, Jr., for respondent-appellant." }, "file_name": "0041-01", "first_page_order": 69, "last_page_order": 77 }