U.S. Fire Ins. Co. v. Schwartz, 166

• Decision Date: 30 June 1977
• Docket Number: No. 166,166
• Citation: 280 Md. 518,374 A.2d 896
• Parties: UNITED STATES FIRE INSURANCE COMPANY et al. v. Paul L. SCHWARTZ et al.
• Court: Maryland Court of Appeals

Page 518

280 Md. 518

374 A.2d 896

UNITED STATES FIRE INSURANCE COMPANY et al. v. Paul L. SCHWARTZ et al.

No. 166.

Court of Appeals of Maryland.

June 30, 1977.

Alan N. Gamse, Baltimore (Semmes, Bowen & Semmes, Baltimore, on the brief), for United States Fire Ins. Co., Hartford Mut. Ins. Co. and Hartford Fire Ins. Co.

Carl E. Eastwick, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for Ins. Commissioner of Maryland.

Jonathan A. Azrael, Baltimore (Azrael & Gann, Baltimore, on the brief), for appellees.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

LEVINE, Judge.

This case is the sequel to Md. Fire Underwriters v. Insur. Comm'r, 260 Md. 258, 272 A.2d 24 (1971), in which we upheld orders of the Insurance Commissioner of Maryland (the Commissioner) denying requested by three rating bureaus for authority to increase certain homeowners' insurance rates. The requested rate schedules in controversy there had already been instituted prior to the Commissioner's decision rejecting them, and pursuant to Maryland Code (1957, 1972 Repl. Vol., 1976 Cum.Supp.) Art. 48A, § 242B(2), ¹ the insurance companies in question continued to collect the higher premiums on policies written during the period between the effective date of the Commissioner's order, July 26, 1969, and the issuance of our mandate on February 4, 1971 (the appeal period).

The primary issue presented by appellants is whether the insurance companies who charged the higher rates on policies issued during the appeal period are now required to refund to the holders of those policies so much of the premiums as were found excessive by the Commissioner. Following a determination by the Commissioner that he had no authority under applicable statutes to order the insurance companies to return any part of the premiums collected during the appeal period, a group of aggrieved policyholders appealed to the Baltimore City Court (Greenfeld, J.), which overturned the Commissioner's decision and remanded the case to the Commissioner for further proceedings. An appeal to the Court of Special Appeals followed, but we granted certiorari before the case was heard by that court. Appellees, however, have moved to dismiss the appeal in this Court on the ground that it is premature in light of the nature of the decision rendered by the Baltimore City Court. Since we agree that the appeal is premature, and therefore cannot now be maintained, we shall grant the motion.

Code (1957, 1972 Repl. Vol., 1976 Cum.Supp.) Art. 48A, § 40(7) pertains to appellate review of cases originating with the Commissioner. It provides:

"Appeal by any party appellant or party appellee including the Commissioner may be taken to the Court of Special Appeals from the judgment of the Baltimore City Court . . . as in other civil cases. . . . " (Emphasis added).

Although the statute does not specify that the judgment must be final, as does, for example, Code (1957, 1971 Repl. Vol., 1976 Cum.Supp.) Art. 41, § 256 in regard to appeals under the Administrative Procedure Act, we have construed statutes similar to § 40(7) to require that the judgment from which the appeal is taken be final. See, e. g., Milio v. Bar Association, 227 Md. 527, 529-30, 177 A.2d 871 (1962) (appeal under Art. 10, § 17 required to be from a "final order"); Collins v. Cambridge Hospital, 158 Md. 112, 115-16, 148 A. 114 (1930) (Code (1924) Art. 5, § 64, providing for appeals from "judgments" of Orphans' Courts; must be "final orders" to be appealable). But cf. Millison v. Citizens Nat'l Bank, 256 Md. 431, 436, 260 A.2d 324 (1970) (appeal not dismissed where taken from oral opinion of chancellor in equity rather than written order or decree). See also Schlossberg v. Schlossberg, 275 Md. 600, 612, 343 A.2d 234 (1975). ² We hold, therefore, that under Art. 48A, § 40(7), an appeal may be taken only from a "judgment" which is final.

The decisive question, then, is whether the judgment of the Baltimore City Court was final and, therefore, appealable. We think not. Whether a judgment is final is not always readily capable of delineation. In general, the cases hold that to be final, a judgment must actually settle the rights of the parties, Collins v. Cambridge Hospital, 158 Md. at 116, 148 A. 114; it must finally settle some disputed right or interest of the parties, Harlan v. Lee, 177 Md. 437, 439, 9 A.2d 839 (1939). Otherwise stated, the judgment must be so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding, In re Buckler Trusts, 144 Md. 424, 427, 125 A. 177 (1924).

Under no test applied by this Court can the judgment from which this appeal is taken be regarded as final. Unquestionably, Judge Greenfeld decided the issue which the parties regarded as most important, whether the Commissioner has the authority to require the insurance companies to return excess premiums collected during the appeal period. By its construction of Art. 48A, § 242B(2), the court held that the Commissioner did have such authority. But it went no further. The court carefully pointed out that its decision in regard to § 242B(2) "permits the Commissioner to exercise his discretion under Sec. 55A." (Emphasis added). Then the court added:

"The Court today only expresses the view that there is sufficient cause for the Commissioner to invoke his discretionary powers under Sec. 55A, but the Court in no way intimates to what extent this discretion should be exercised." (Emphasis added).

The court concluded by remanding the case "to the Commissioner for a hearing on the extent to which he should invoke his discretionary powers under Article 48A, Section 55A." (Emphasis added).

That § 55A is discretionary in tenor cannot be doubted. It provides that the Commissioner "may . . . require that restitution be made by such insurer to any person who has suffered financial injury or damage as a result of such violation." (Emphasis added). Far greater in significance here is the fact that the court itself neither ordered a refund nor required the Commissioner to do so.

Additionally, the court's decision explicitly recognized the presence of other issues remaining for determination by the Commissioner. These the court enumerated:

" . . . (I)t would be appropriate for the Commissioner to consider the circumstances under which the deemer rates ³ were collected during the Appeal Period, the length of time the refunds have not been forthcoming to the Appellants, the existence vel non of a tender of a refund to the Appellants by the Companies, and the difference in coverage (if any) afforded the Appellants under the policies issued with the deemer rates."

The concluding phrase is a reference to an argument vigorously maintained by the insurance companies at each level of judicial review: that to sustain appellees' version of § 242B(2) would create insurmountable administrative problems for the insurance companies. This consequence would follow, they say, because the rate filing in question dealt with not only an increase in rates, but also a change in policy forms. The companies argue here, for example, that the interpretation of the Baltimore City Court "would require insurers to revoke retroactively and reissue thousands of insurance policies in...