*1 Dеpartment M. Insurance Commissioner, Pack, David Appellant, Banking, Royal-Globe Appellees. Companies, Insurance
James Special opinion Me. Justice W. J. Smith delivered of the Court.
Royal-Globe Companies, group' Insurance a related companies, appellees, insuranсe .of mem- which the are application bers, made to the Commissioner De- partment Banking, twenty-five of Insurance and for á per (25%) private passenger cent increase for auto- liability mobile insurance be written in The Tennessee.. filing upward amounted to a from deviation statewide existing request bureau rates. The for the increased rate pursuant was filed in December to T.C.A. sec. 56-603 seq. request et was denied. September Rating
In the Insurance Board, petitioners Royal-Globe Companies which Insurance request premium filed for a members, a. rate increase on its behalf all members. This denied request was October On March the Commissioner de- proposed upward nied the deviation reason companies justify the statistics furnished did Thereupon requested. or increase the Insurance Companies requested, granted, hearing as and were provided by May statute, which was held on petitioners, Companies pre- 1969, when the Insurance support purporting oral and sented written evidence requested increase rate. *4 4, 1969, affirmed Commissioner, letter, On-June the previous stating requested, his the denial increase filing, together the that he had reviewed the with testi- hearing, mony given the and the offered at evidence that support requested in the rate increase was suffi- not ciently preponderant to merit affirmative decision. Companies, peti- the Insurance their filed
Thereafter, tion the Circuit Nashville for in Court at common the rulings law writ review the certiorari the Com- missioner. Swig-
The case was heard Honorable M. before James gart, upon petition, Judge, Circuit the the and answers transcript proceeding the before the Commissioner. judge finding The trial that Com- entered an order May orders denial of missioner's and June “legally were insufficient” orders and said were proceedings hereby vacated and “and the set aside, * * * remanded to the Commissioner for reconsideration. this, Jurisdiction of cause in retained this Court for proceedings, may appropri- and such further action as be ’' ate. Upon granting common cer- Court law writ of lengthy tiorari Commissioner filed answer petition Companies also to' a and motion the Insurance summary for a their in favor. Commis- upon sioner stated his answer, substance, based that filing, testimony matters contained witnesses upon opinion record, at the entire and proposed liability was that the of automobile revision rates, property damage applicable and did meet not requirements 56-602(4) contained in T.C.A. adquate unfairly rates be reasonable, must fair, discriminatory. findings He denied that his without were required support. He he admitted that consider was. past prospective experience loss and outside within weighed he the fact state. That considered *5 petitioners did filing in include the evidence of experience loss outside the statе; he found that the “inflationary upon trend a factor”, material factor relied in having prospective a the as means of loss ex- perience which was reliable, not-shown a rather than conjectural prospective showing means of experi- loss requested as a ence for basis its rate revision. year the
That annual statement filed for the 1968 re- aggregate flected an net of $3,672.50 income federal after together income tax of $4,838,614.00, with dividends tо stockholders in the amount during of $13,293,032.00 the period. disapproval same pro- He denied that his. of posed arbitrary, capricious, rates was unlawful, and support without in the record. erroneously
He denied that he concluded that could he paid consider passing dividends to stockholders in on proposed 50-602(1) rates and states that T.C.A. sec. authorizes and directs him to consider this factor under profit. margin of factor reasonable That at the petitioners рresent were evi- allowed all the they present support finding. dence desired to in of their response In further to the remand M. Pack David filed in answer which he that he stated vacated office Department of Commissioner of the of Insurance and Banking September on on 3, 1969, and was the same appointed Attorney Reporter date General and September That State Tennessee. Milton appointed Department P. Rice was Commissioner Banking, express of Insurance and has no that he legal authority question proposed by decide by amending modifying previous ruling Court former Commissioner Pack. Judge a written the Trial filed
On December part opinion record, made a which was he December which and on entered held: petitioner hearing on the
“1. a fair was denied from investments relation income issue premium premiums to* reserves and loss unearned rates. the Commissioner
“2. stated The conclusions *6 requirements rulings of the statute not the do meet filing. disapproving a “3. are not The conclusions Commissioner supported by evidence record. the specify fails re- “4. what The Commissioner filing spect unfair, be unreason- he the or finds either unfairly discriminatory. inadequate able, or failed to determine that has The Commissioner “5. Chapter requirements filing of 6 not meet the does the of Title 56 T.C.A. attempted disapproval of Commissioner's The
“6. arbitrary illegal. petitioner’s filing is n totally fail- the Commissioner “7. Inasmuch as according disapprove petitioner filing ’s to law, to ed subject filing 56-603(c) requires be Section approved deemed the Commissioner.” judgment of that: the court And it was further . February 17, 1969, be, dated “the Petitioner approved by hereby Com- is, same deemed Commissioner missioner.” From which appeal granted prayed, to this Court. was
459 question first we to determine whether this jurisdiction. Court has King King,
In 164 Tenn. 51 it was S.W.2d * * * jurisdiction “The Court, held that of this extends to all in the cases determined trial court demurrer involving method other а review or determination (Emphasis supplied). facts.” here involves a review nor
As issue neither determination we does facts, hold this Court have jurisdiction Long case. National Bureau Casualty Underwriters, 255; Tenn. Express Hoover Railroad 16-408; sec. Motor Co. v. T.C.A. Tenn. Comm., & Public Utilities Re Estate, In Williams’ jurisdiction of the hold Court does have 775. We appeal. by- assignment that the Court erred
The first holding retaining jurisdiction after (T.C.A. public ruling, after a Commissioner’s assign 56-603(g)) “legally insufficient.” This was *7 practice was fоllowed overruled. Such of error ment Casualty Underwriters, 209 Long National Bureau v. board or 255. “If 354 commissioner S.W.2d a 435, Term. finding on record and the an essential to make failed provide final de a basis for is insufficient review procedure proper for the court termination, proceedings further before for remand & T. p. Bell T. Co. 248; So. 689, 42 Am.Jur. board.” 465, Tenn. Comm., 202 v. Tenn. Public Service 640.
460 assignments
The next five will be considered errors together, (2) finding are: erred that and the court appellees heаring; (3) a were denied fair the Com- that denying missioner’s conclusions or reasons requirements; filing applicable statutory did not meet the supported (4) appellant’s, because conclusions were appellant’s any (5) record; evidence in the rul- that ings appellant’s illegal arbitrary; (7) and were and applicable rulings according law, were not to the approved filing the rate matter of and as was deemed law.
The case was the trial court law the common certiorari, writ and a review there was limited ato determination tribunal, board, whether the inferior exercising judicial functions officer has exceeded the jurisdiction illegally. acting Hoover conferred, or is Express Motor Co. v. Railroad & Utilities Public Com ques only 195 261 mission, 593, Tenn. S.W.2d and Bell of law reviewed. Southern & T. Co. v. tions will be T. 202 Commission, Public Service 304 Tenn. Tenn. Boyd, 640; Commissioner v. General Motors Ac S.W.2d ceptance Corp., 13; S.W.2d Fentress County Tenn. Cravens, Beer Board Smith, Reddoch “Every provides 56-603(a) insurer
T.C.A. sec. every manual classifi- shall file the commissioner with every plan every rating and rates, rules cations, proposes foregoing it which modification Every the character shall indicate use. such contemplated coverage be accom- shall extent of the sup- upon panied insurer the information which the *8 ports filing. may incorporate by insurer any part any existing filing reference into its all or filing supporting information in the commissiоner’s * * *” possession open public inspection. is which 56-603(c) “Any filing pursuant
And sec. to this approved by section shall be the commissioner unless he filing determines, after due does consideration, that such requirements chapter. not meet this As soon as reasonably possible filing has after the been made the approve disapprove writing shall in commissioner provided, any filing except respect same; that with compensation approved workmen’s shall be deemed un- disapproved days.” thirty (30) less within (e) And subsection 56-603 “In the event that disapproves filing specify the commissioner shall he respect what he finds that such does not meet the ’’ requirements chapter. of this provides: 56-613(e) every T.C.A. sec. “In case where, provisions pursuant chapter, to the of this the commis- required sioner is authorized or determine whether adequate, unfairly rates are fair, and not reasonable discriminatory, may he himself of avail services exрerts may necessary such as he deem or advisable purpose.”
In Southern Bell & T. Public Serv T. Co. v. Tenn. ice Comm,., it is said that pre “after the Commission has fixed is a rate, there sumption any party rate com correct, that this is plaining proving out ah the burden it illegal unjust Kentucky-Tennes and unreasonable. Light Dunlap, & see Power Co. supplied) (Emphasis 636.” The same’ rule
applicable ease. *9 Boyd, of Finance and
In the ease
Commissioner of
Acceptance Corp.,
Taxation General
205 Tenn.
v.
Motors
330
the
13,
S.W.2d
seized automobile
involved
658,
-which,
by
trans-
the commissioner
had
used
the
been
whiskey.
portation
of a con-
of
The holder
contraband
sought a
the action of
ditional
contract
sales
review of
by
the
common
commissioner
the
law writ
certiorari.
this,
say:
question
passing
The Court in
had
any
bring up for determination
“Such a writ does not
question except
question
the Commis-
whether
illegally,
jurisdiction,
sioner
his
or acted
exceeded
fraudulently.
ques-
arbitrarily or
such a
Under
writ
only
[They]
tions of
reviewed
the Court.
law
permit the introduction of additional evidence
do not
granting
is on
the writ
review
Court
up
hearing
The
before
officer.
record as
hearing
officer
court
or
this
is limited whether
fraudulently,
jurisdiction
or acted
exceeded
any
arbitrarily.
illegally,
is
material evi-
there
or
If
hearing
finding
dence to
under
sustain
officer
illegal,
there is no
circumstances,
such
fraudulent
arbitrary
therein, the
must
action
court
sustain
finding
County
Putnam
Beer
officer.
Speck,
(Em-
616,
184 Tenn.
991.”
Board v.
phasis supplied). 205 Tenn.
The Court in the statute under considera Long Casualty tion in National Bureau Under writers, 209 Tenn. had say:
“Sub-sections and of T.C.A. 56-602set forth the making factors that the Commissioner shall consider provide his determination. These sub-sections may grouped risks be mini- rates and classified premiums; fixing mum and-the Commissioner rates give shall consideration to: Prospective experience
“1. both out- loss within and side the State of Tennessee. experience loss within and outside
“2. Past the State. *10 Catastrophe any. “3. if hazards, margin profit contingen- “4. A reasonable and cies. Policyholders’ partici-
“5. in the dividends pating insurers, and All
“6. other relevant within and factors without State.
“If decision from a con the Commissioner reached his specified sideration of factors enumerated in the factors, cannot Statute, and from other relevant we Dun substitute vacate decision. our and lap, Greyhound Lines, al., et al. Dixiе 178 et Ry. Pharr, Tenn. Central Inc. 160 532, Tenn.App. al., ; et 289 42 Am.Jur. 531, pp. 442-443,354, 226-633.” 209 Tenn. appellant, ad Commissioner, In answer the Ms sworn May public hearing 5,1969, on and mitted was held hearing attended and several mem that said Mm was representatives petitioner. bers his staff and by peti experience furnished He admits that the data things, among in tioner other losses incurred showed, petitioner’s report annual and however the year (1) on automo its stockholders for the showed premiums liability bodily injury direct bile insuranсe losses of $883,900.00 earned amount and direct liability (2) property dam $501,933.00 on automobile premiums age earned $347,617.00 insurance, direct physi (3) of $266,440.00' direct losses on automobile premiums damage $331, insurance, cal earned direct of $255,670.00'. -889.00and direct losses May denying on In increase after in his letter of Commissioner June things, among said, other together filing, tMs with the
“I have reviewed testi- hearing, mony given at and it aforementioned support my opimon that the evidence offered prеponder- sufficiently requested rate increase was decision. ant to merit affirmative 56-603(g), Ten- in accordance with sec. “Therefore, previous re-affirming am I Annotated, nessee Code your companies my letter directed denial ’ ’ 1969'. March *11 Long Board Under- in Natl. C. It further held is supra, writers, that: companies to insurance the Statutes authorize
“While proposed approval application in rates make groups, requires give it also to the Commissioner duе specifically consideration enumerated to those matters provide 56-602, under which shall T.C.A. ‘all rates provisions in be accordance with Clearly, by provisions, said these Com- Statute. is missioner to the loss limited consideration * * experience filings group V* shown again: And weight given does
“The Statute not define be required be That one of the considered. factors In the is left to discretion of Commissioner. swayed to not be exercise that discretion he should sympathy prеjudice, must either but he consider or just public insuring is to the fair, what and reasonable companies. ques- as as the insurance well to’ On by the tion his decision is final not reviewable * * * Courts. ‘‘ pre Finally, proof as the must not before we us, complied properly sume that Commissioner with findings sup the duties office, of his that his Kentucky-Tennessee Light ported by proof. & Dunlap, Power Co. pp. 170-173, 174, 180; secs. 43 Am.Jur. sec. Am.Jur. ’* 511, p, granted
The common law of certiorari writ exercising tribunal, where inferior board officer judicial jurisdiction functions has con exceeded the acting illegally, ferred, or is when, remedy. plain adequate the Court, is no there other phrase “exceeding jurisdiction con phrase “acting illegally,” refer to ferred”, and both *12 n within, beyond, its actions snob inferior tribunal not phrase illegally”, jurisdiction. Referring “acting to the supra, [State ex rel. McMor in the Court, case, Hunt 933] 251,192 said: Hunt, row v. S.W. phrase undertaking to define that “Without say includes, we statute exactness or to what it with distin writ, think clear as it common-law guished statutory in lieu or certiorari from the writ, appeal, may of of to for the correction be resorted not jurisdiction affecting errors, technical or not formal power, not of or for that are correction defects illegality amounting fundamental, that is radical, ” distinguished irregularity. as from an referring said, it common In that was further of law certiorari: writ inquire employed into the
“The writ has never been
judgment
the court
where
corrеctness
rendered
of
* * *”
competent.
jurisdiction,
had
therefore
was
(Italics ours).
192 S.W.
McGee
The trial court stated, rule has followed an unwritten that the Commissioner proof only but it not insurer has the burden that the persuasion personal to the satis- has also burden of * * * ordinary language, In the Commissioner faction of approve can unless he the Commissioner must require- something wrong it in find with terms specific as to what ments sec. and he must be 56-602, Legislature plаced wrong. has burden thus upon proof the Commissioner.” disapproving If in rate increase the Commis specified sioner reach his decision from factors enumer ated in T.C.A. 56-602, relevant a/nd other from factors, the Court cannot its substitute Long the Commissioner. Board Natl. C. Under supra. writers, legislature placed
We do think proof upon burden of the Commissioner. The insurance companies, filing seeking *13 made the rate of increased twenty-five per They aggressors. cent. the Thе were companies sought affirmative at relief the the hands Commissioner. proof party having
“The burden of the of an issue and this affirmative burden never shifts. City Stewart v. 96 33 50, 613; Tenn. S.W. Nashville, City McCorkle, v. 112 Tenn. 80 688, 834; Wilkins S.W. Bank Barnes, National v. 51 S.W.2d Whipple McKew, 166 1006.” Tenn. Freeman Felts, Lasenby Co.,
In v. Universal Underwriters Insurance 214 Tenn. 639, 655, 1, 8, it is said: provides every 56-603(a) insurer
“T.C.A. sec. that every file of classi- shall with the manual commissioner Every every plan, rating fications, rates, rules and etc. filing shall indicate the and extent of such character accompanied coverage contemplated and shall be upon supports information which the insurer filing.” Re: North Carolina The North Carolina Court in In Rating Fire Bureau,, Insurance 275 N.C. 165 S.E.2d presumption 207, said that there is filing; no proper, filing correct and and is on harden proposed insurer to show that the rate schedule is fair unfairly and discriminatory and not reasonable between provides (c) risks. T.C.A. sec. 56-603 the Commissioner approve any filing shall made “unless he determines, due after consideration, that such does meet * * *” requirements chapter. of this
After a careful consideration of the record the authorities cited, are we constrained hold that the Judge judgment setting learned Circuit erred vacating ruling aside toto the order or Department Commissioner of the of Insurance and Bank ing. Assignments of 2, 3, error 4, 5, and 7 sustained. are of the Circuit Court is, therefore, re versed; Commissioner ease is remanded to the prepare Banking of Insurance and and file his reasons disapproving filing. Appellees taxed with costs.
Dyee, Justice, Chief Ceeson, and Jenkins, Justice, *14 Special Justice, concur.
McCanless, Justice, not participating.
Opinion on Petition to Reheae Special Me. Justice Smith. W. J. appellant, Depart- David Pack, M. Commissioner, Banking petition
ment of Insurance filed and a his for rehearing, contending aggrieved by that he is so much opinion May of the Court filed 4,1970, as remanded present Department the case to the Commissioner of the prepare Banking of Insurance and file his reasons
469 disapproving the rate involved herein and seeking a appellee. dismissal of the case at the cost of simple
Petitioner further insists in broad “that a appeal opened up appellate the entire case is though court determines such as a case case had been originally pronounces in instituted said court and final proper. if Chancery, decree, See Suits Gibson's sec. 1334.”
Counsel overlook the
action of
fact
brought
Commissiоner was
to the circuit
court
appealed
common law writ of
this
certiorari, and
ruling
from
Court,
an adverse
As
court.
trial
original opinion May
in our
stated
com
4, 1970, the
bring up
mon law writ does not
for determination
question except
question (1)
whether
Commis
jurisdiction, (2)
illegally,
sioner
exceeded
has acted
arbitrarily
fraudulently.
Hoover
T.C.A. sec. 27-801;
Express
Utility
Motor
Co. Railroad &
v.
Comm.,
Public
Boyd
195 Tenn.
593,
233;
S.W.2d
v. General Motors
Acceptance Corp., 205 Tenn.
13;
330 S.W.2d
Reddoch
v.
Bragg
Smith, 214
Tenn.
v.
641;
Boyd,
Boyce
In McGee speaking Court the common law certiorari writ say: had supervisory jurisdiction by
“The Court's certiorari juris- ordinary appellate not be must confused with its diction. Nor must the distinction be be- overlooked put tween common-law writ form now certiorari, statutory (T.C.A. 27-801) aof statute *15 appeal (T.C.A. or certiorari in sec. lien an writ, 27-802). Hunt, rel. McMorrow v. 137 Tenn. State ex State, Helton v. 251, 931, 933; 192 S.W. 542; Hoover Motor 305, 250 S.W.2d Express Commis & Public Utilities Co. Railroad 604, 261 S.W.2d 593, 600, 195 Tenn. siоn, here certiorari, the writ common-law writ “The sought, may granted inferior ‘in all cases where an be functions, exercising judicial board, or tribunal, officer acting jurisdiction isor conferred, has exceeded is Court, there illegally, when, in remedy/ adequate (T.C.A. speedy, plain, no or other 27-801)/’ holding of remanding followed case we In Telegraph Telephone Com- Bell Court in Southern Commission, pany Service Tennessee Public held in which case was it 465, 474, that:
“ general even the ab- courts, rule ‘The necessary power is it have such where statute, sence of * * justice, *’. the demands to effectuate And:
“ judicial principles governing nothing in the 'There precludes acts which of administrative review body oppor- from, an giving administrative courts an correcting tunity objections order its meet supplying procedure, irregularities or deficiencies findings making where these additional record, in its validly findings necessary, supplying ”’ place invalid. of those attаcked as And:
“ ‘If or commission board failed to make *16 finding essential on and the record review is insufficient provide the basis a the for final determination, proper procedure the court tois remaud the for proceedings (Emphasis the board.’ for further before supplied) supported by good
“Each of these statements are * * * authority which examined.” have we by It is further the contended Milton Commissioner, appointed Rice, P. that he was of Commissioner De- the partment September Banking of and Insurance on express, legal authority, 1969, “and he no under modify sec. 56-603, T.C.A. amend Commis- former petitioner’s deny- ruling sioner Pack, David M. the final ing upon by this after a and remand the Any by ruling upon trial court. Commissioner Rice would, remand in addition have to. made him with- be procedure out of the benefit the set forth in T.C.A. required by 56-603, and should be not this Honorable ’’ Court. re-argument simply This a is of matters considered in argument hearing. on the The revealed record M. Pack in David filed in the trial court his answer stated Seрtember vacated the of he office on Commissioner appointed Attorney 3, 1969, and on same was date Reporter General of Tennessee. and the State That September appointed 5, 1969, on P. Milton Rice wais Department Commissioner and of Insurance Bank- express legal ing authority and no he had to decide the question proposed by page (See Court.
opinion Court) Pack hear- Commissioner held a
The record shows that May consisting ing filing on the testi- 1969’, on volumes, mony large of statistical of witnеsses data Companies, transcript a submitted Insurance petition for certiorari which was filed with is part of the record in the case. provides: sec. 8-2901 statute, expressly otherwise
“In all cases which it. papers, provided, all vacated, books, office when appertaining money belonging property, to such quali- to the over office,shall, demand, delivered be * * ’’’ successor fied provides appointment of 56-109 T.C.A. sec. employment deputies, аctuaries, with such assist- *17 necessary by may the Commissioner ants as be deemed duties the office. efficientadministration (T.O.A. 56-110) provision is general rule that where
The deputies deputies, appointment such statute for the duties, Ry. discharge may Southern all office. Co. County, Tenn.App. Hamilton does not entire office show record personnel Com was when vacated the Commissioner testimony, resigned. etc., data, Pack All missioner May use 1969 are available for on had present Commissioner. rehearing petition merit, without find the for a We same denied. Jenkins, Creson, Justice, Chief Dyer, Justice, Special Justice, concur. Justice, not
McC’anless, participating.