First American Title Insurance v. Stephen W. Robertson, Insurance Commissioner of the state of Indiana, in his official capacity, on behalf of the Indiana Department of Insurance, 65 N.E.3d 1045

Background

IDOI ordered a market conduct exam of First American Title Ins. Co. (FATIC); a third-party examiner filed a report in Sept 2010, and FATIC responded in Nov 2010.
Indiana law required the Commissioner to enter an order within 30 days after the submission/rebuttal period; the Commissioner missed that deadline and sought retroactive extensions twice (which FATIC agreed to), then sought a third extension which FATIC refused.
Despite missing the statutory deadline, the Commissioner issued an order in April 2011 calling for an investigatory hearing; FATIC sought judicial review and declaratory relief alleging the order was void as untimely.
The trial court denied relief; on appeal the Court of Appeals held the order void for untimeliness and that prejudice need not be shown, but the Indiana Supreme Court later ruled FATIC had failed to file the complete agency record so the AOPA petition had to be dismissed.
On remand FATIC filed a new petition (writ of prohibition/mandate, declaratory relief, and amended judicial review); the trial court dismissed those claims, concluding AOPA was the exclusive remedy and the claims were barred by res judicata.
FATIC appealed the dismissal of its writ/mandate and declaratory-judgment claims; the Court of Appeals affirmed, holding res judicata barred FATIC’s reassertion of the same claims after the prior dismissal for failure to file the complete agency record.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Commissioner’s untimely order is void and subject to collateral attack	FATIC: Untimely/ultra vires acts are void and may be collaterally attacked without exhausting administrative remedies	IDOI: Administrative process (AOPA) is the proper route; FATIC already litigated these issues	Court: Although untimeliness may render an order void, FATIC’s new claims are barred by res judicata because they reassert the same issue previously adjudicated (or could have been) after the prior proceeding ended
Whether a separate showing of prejudice was required	FATIC: No separate prejudice showing required when an order is void	IDOI: Not disputed as to precedent; argued other procedural bars apply	Court: Prior appellate authority (and supreme court) accepted that prejudice need not be shown, but that does not overcome res judicata here
Whether declaratory-judgment and writ/mandate claims can proceed after AOPA dismissal	FATIC: Declaratory judgment and writs available to challenge void agency action collateral to AOPA	IDOI: AOPA is the exclusive remedy; cannot relabel AOPA claim as declaratory/jurisdictional relief; res judicata bars relitigation	Court: AOPA was the available administrative remedy; FATIC may not relitigate via declaratory/writ claims after failing to preserve the agency record; claims barred by res judicata
Whether res judicata applies given appellate history (issue raised but not resolved)	FATIC: Appellate courts did not decide the declaratory relief question, so res judicata should not bar it	IDOI: Prior final judgment and appellate disposition operated to preclude reassertion; doctrine applies	Court: Res judicata applies where matters were or could have been litigated; FATIC’s new petition raises the same controversy and is precluded (Richter analogies applied)

Key Cases Cited

First American Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind. 2014) (Supreme Court disposition that dismissal was required because the complete agency record was not filed)
Twin Eagle LLC v. Indiana Dep’t of Envtl. Mgmt., 798 N.E.2d 839 (Ind. 2003) (exhaustion of administrative remedies not required when agency action is void on its face or action is ultra vires)
Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979 (Ind. 2005) (whether an agency lacks jurisdiction is for courts; mixed or fact questions require administrative exhaustion)
Richter v. Asbestos Insulating & Roofing, 790 N.E.2d 1000 (Ind. Ct. App. 2003) (res judicata bars subsequent action when claims are inextricably woven and could have been litigated earlier)
Outboard Boating Club of Evansville, Inc. v. Indiana State Dep’t of Health, 952 N.E.2d 340 (Ind. Ct. App. 2011) (where an administrative remedy exists, declaratory judgment is not a suitable alternative)
Mies v. Steuben Cnty. Bd. of Zoning Appeals, 970 N.E.2d 251 (Ind. Ct. App. 2012) (void agency actions may be subject to collateral attack)
Teaching Our Posterity Success, Inc. v. Ind. Dept. of Educ., 20 N.E.3d 149 (Ind. 2014) (addressing requirements for filing the administrative record for judicial review)