Augustin v. Barnes

Decision Date23 March 1981
Docket NumberNo. 79SC19,79SC19
Citation626 P.2d 625
PartiesJ. P. L. AUGUSTIN, Robert M. Charlson, Charles E. Corliss and Lawrence B. Knudson, Petitioners, v. J. Richard BARNES, Commissioner of Insurance, State of Colorado, Respondents.
CourtColorado Supreme Court

Lohf & Barnhill, P. C., Ernest W. Lohf, David G. Ebner, Denver, for petitioners.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Jeffery G. Pearson, Deanna E. Hickman, Asst. Attys. Gen., Denver, for respondents.

Eugene L. Copeland, Gary W. Waggoner, Rhonda G. Smith, Chris L. Chandler, Denver, for amicus curiae, Colorado Life Convention.

ERICKSON, Justice.

Certiorari was granted to review the decision of the court of appeals in Augustin v. Barnes, 41 Colo.App. 533, 592 P.2d 9 (1978). We affirm in part and reverse in part.

At issue is the validity of Division of Insurance Regulation No. 72-7 (Regulation). The Regulation was promulgated by the Commissioner of Insurance (Commissioner) pursuant to his statutory authority to establish reasonable rules and regulations regarding prohibited methods of competition and unfair or deceptive practices in the insurance business. Section 10-3-1104, C.R.S.1973. See also, sections 10-3-1101, 10-1-108(8), and 10-1-109, C.R.S.1973.

The Regulation controls life insurance replacement transactions which are commonly called "switching." In a replacement situation governed by the Regulation, the insured has an existing policy issued by the "replaced insurer" which is about to be replaced with a policy to be issued by the "replacing insurer." 1 See 1 Harnett, Responsibilities of Insurance Agents and Brokers, § 5.13A (1980). As a condition, the Regulation requires the replacing insurer: (1) to provide the insured with a "Disclosure Statement" which includes a comparison between the terms of the insured's existing life insurance policy and the terms of the proposed replacement policy; and (2) to notify the insurer whose insurance is being replaced of the proposed replacement. Article VI (4)(c) of the Regulation states:

"4. Where a replacement is involved:"

"c. (Each insurer shall) immediately notify any insurer whose life insurance is being replaced of the fact of such intended replacement, the name of the insured and the policy number of the replaced insurance or other information sufficient to identify the policy and upon request of the applicant promptly furnish said insurer a copy of any proposal used and the completed 'Disclosure Statement....' "

Petitioners are individuals engaged in the sale of life insurance policies in Colorado. They commenced an action in the district court to enjoin enforcement of the Regulation. After a hearing on petitioners' request for a permanent injunction, the district court held the Regulation valid except insofar as Article VI (4)(c) required the replacing insurer to notify the replaced insurer of the switch in instances where the insured requested that no disclosure be made. The district court concluded that Article VI (4)(c) violated the insured's right to privacy under the First and Fourteenth Amendments to the United States Constitution. U.S.Const. amends. I and XIV.

The court of appeals rejected petitioners' argument that the Regulation has an anti-competitive effect in violation of section 10-3-1101, C.R.S.1973, and affirmed the district court's holding that the Regulation is valid. The court of appeals reversed the district court's order enjoining enforcement of Article VI (4)(c). The court concluded that petitioners did not have standing to assert a violation of the insured's constitutional rights.

I. Regulation No. 72-7

Petitioners contend that the Regulation contravenes the legislative prohibition in section 10-3-1101, C.R.S.1973, against regulations which adversely affect free and open competition in the sale of insurance because it imposes regulatory burdens only on the replacing insurer. We disagree.

Section 10-3-1101, C.R.S.1973, prohibits the promulgation of regulations which adversely affect free and open competition in the sale of insurance. On the other hand, the General Assembly has manifested its concern by specifically addressing unfair practices in the sale of replacement insurance. Section 10-3-1104(1)(a)(VI), C.R.S.1973, states that misrepresentation for the purpose of inducing exchange or conversion of an insurance policy is an unfair method of competition and a deceptive business practice. Article II (2) of the Regulation provides that one of the purposes of the Regulation is to "preclude unfair methods of competition and unfair practices" in replacement insurance transactions. (Emphasis added.)

The district court found that:

"The regulation in question (72-7) attempts to help the public to make an informed decision concerning the replacement of existing life insurance with another policy by requiring a replacing insurance sales agent to make full disclosure of the relative economic values of the competing policies and to make this disclosure by means of a standardized comparison format detailed in the regulation."

Administrative regulations regularly promulgated are presumed valid and the burden is upon the challenging party to establish the asserted invalidity beyond a reasonable doubt. Moore v. District Court, 184 Colo. 63, 518 P.2d 948 (1974).

We do not view the fact that the replaced insurer is not required to provide the insured with a "Disclosure Statement" as placing the replacing insurer at a competitive disadvantage. Where the replacing insurer's "Disclosure Statement" complies with the Regulation, all that is needed from the replaced insurer is to either point out errors in the statement or to argue from the statement that the insurance should not be replaced. Requiring a "Disclosure Statement" from the replaced insurer would be superfluous. See Winkler v. Colorado Department of Health, 193 Colo. 170, 564 P.2d 107 (1977). (The legislature is not required to implement an all-or-none or totally comprehensive measure.)

We conclude that any anti-competitive effect of the Regulation is outweighed by the Commissioner's concern with eliminating unfair methods of competition and unfair practices in replacement insurance transactions. As we said in Moore v. District Court, supra :

"The presumption of validity of the rules regularly promulgated is not to be lightly cast aside by mere allegations in a complaint of unconstitutionality, and the burden is upon the party challenging the constitutionality to establish by a clear and convincing showing beyond a reasonable doubt the asserted invalidity. This requires more than a mere assertion of a claim." Id. 184 Colo. at 67, 518 P.2d 948.

II. Standing

The general rule of standing in Colorado is that no person may assail the constitutionality of a statute or regulation except to the extent that that person is adversely affected by the alleged defect. Reed v. Dolan, 195 Colo. 193, 577 P.2d 284 (1978); American Metal Climax Inc. v. Butler, 188 Colo. 116, 532 P.2d 951 (1975); McKinley v. Dunn, 141 Colo. 487, 349 P.2d 139 (1960).

There is, however, an exception to the general rule which gives a party standing to assert the rights of others not before the court. A litigant must initially show injury in fact to himself caused by the application of the statute or regulation. See Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943). A litigant's injury, coupled with the presence of one or more of the following factors, may justify third party standing: 2 First, the presence of a substantial relationship between the claimant and the third party. See N. A. A. C. P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Second, the difficulty or improbability that the person who has suffered deprivation of a constitutional right will be able to assert it. See N. A. A. C. P. v. Alabama, supra. Third, the need to avoid dilution of the third party's constitutional rights if third party standing is not permitted. See Craig v. Boren, supra.

In Craig v. Boren, supra, a licensed beer vendor brought an action for declaratory and injunctive relief claiming that an Oklahoma statute which prohibited the sale of beer to males under the age of 21 and to females under the age of 18, violated the males' right to equal protection of the laws. The Supreme Court found that operation of the statute inflicted injury in fact on the vendor because the vendor was forced to obey the statutory provisions and incur economic injury or disobey the statute and suffer sanctions. The vendor's injury, coupled with the fact that the concomitant rights of third parties would be adversely affected if the vendor's constitutional challenge failed, caused the court to conclude that the vendor had standing to assert the rights of third parties who sought access to the vendor's market or function:

"Otherwise, the threatened imposition of governmental sanctions might deter (the vendor) and other similarly situated vendors from selling 3.2% beer to young males, thereby ensuring that 'enforcement of the challenged restriction against the (vendor) would result indirectly in the violation of third parties' rights.' " (Citation omitted). Id., 429 U.S. at 195, 97 S.Ct. at 455.

See also, Carey v. Population Services International, supra.

Also relevant to third party standing is N. A. A. C. P. v. Alabama, supra, where Alabama obtained a court order requiring the N.A.A.C.P. (Association) to produce membership lists. The Association refused and was held in contempt. The Supreme Court reversed and concluded that the nexus between the Association and its members was sufficient to justify assertion of a constitutional violation of its members' rights by the Association. The Supreme Court...

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