Board of Insurance Com'Rs v. Texas Emp. Ins. Ass'n

• Decision Date: 27 June 1945
• Docket Number: No. 9497.,9497.
• Citation: 189 S.W.2d 47
• Parties: BOARD OF INSURANCE COM'RS v. TEXAS EMPLOYERS INS. ASS'N.
• Court: Texas Court of Appeals

Page 47

189 S.W.2d 47

BOARD OF INSURANCE COM'RS v. TEXAS EMPLOYERS INS. ASS'N.

No. 9497.

Court of Civil Appeals of Texas. Austin.

June 27, 1945.

Rehearing Denied July 11, 1945.

Appeal from District Court, 126th Judicial District, Travis County; Roy C. Archer, Judge.

Suit by Texas Employers Insurance Association against the Board of Insurance Commissioners to test the validity of an order of the board, on ground that the order exceeded the powers granted to the board, and to enjoin its enforcement. From the judgment, defendant appeals.

Affirmed.

Grover Sellers, Atty. Gen., Geo. W. Barcus, Eugene N. Catlett, J. A. Ellis, and Wm. J. R. King, Asst. Attys. Gen., and Thompson, Knight, Harris, Wright & Weisberg, of Dallas, for appellants.

Neth L. Leachman, of Dallas, and Charles L. Black, of Austin (Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas and Black, Graves & Stayton, of Austin, of counsel), for appellee.

BAUGH, Justice.

Suit by appellee against appellant to test the validity of an order of the Board of Insurance Commissioners, hereafter called the Board, dated October 18, 1944, on the alleged ground that the order exceeded the powers granted to said Board; and to enjoin its enforcement. Trial was to the court without a jury and after an extended hearing consuming some two weeks time, a temporary injunction was granted with certain limitations; from which judgment, the Board has appealed.

The order in question reads as follows:

"In order to prevent unfair discrimination between insurers or insureds and between insurers and insureds, and in order that the Board of Insurance Commissioners may control Workmen's Compensation rates as is specifically required of it by law:

"It is therefore ordered:

"1. That any agreement to waive, or attempt to waive, or any waiving of, directly or indirectly or any agreement to eliminate, or attempt to eliminate, or any elimination of, directly or indirectly, any portion of the surcharge premium under Retrospective Rating Plans B or C, is hereby prohibited on or in connection with any policy in effect on and after January 1, 1945.

"2. That the use of any so-called `cost-plus' plan by endorsement or otherwise or any other type of plan or agreement, which affects, directly or indirectly, the premium cost to the insured employer, not approved by the Board of Insurance Commissioners, is hereby prohibited on or in connection with any policy in effect on and after January 1, 1945.

"3. That the use of any so-called `stop-loss' plan or agreement or reinsurance, which, directly or indirectly, affects the premium of the insured employer is hereby prohibited on or in connection with any policy in effect on and after January 1, 1945.

"4. That all carriers writing Workmen's Compensation Insurance on a participating basis or plan, are hereby required to file with the Casualty Insurance Commissioner on or before January 1, 1945, its plan or proposed plan of determining and distributing dividends in complete detail, i.e.:

"a. A level rate of dividend plan.

"b. A `sliding scale' dividend plan.

"c. Dividend plans by and for groups.

"d. Any other formula or plan.

"Each carrier so writing on a participating basis or plan is required to secure the approval of the Board of Insurance Commissioners of the use of its plan before such plan is used in the solicitation or writing of Workmen's Compensation Insurance or in any other manner. Each carrier desiring to pay dividends is required to file with the Board of Insurance Commissioners its application for authority to pay dividends based upon its plan. Each carrier is required to furnish to the Board of Insurance Commissioners such information concerning the proposed distribution of the dividends desired to be paid, as may be deemed necessary by the Board of Insurance Commissioners to enable the Board to pass upon whether such dividend payments are to be approved, and is required to secure the approval of the Board authorizing the payment of such dividends before the same are actually paid.

"5. That all participating provisions incorporated either in the policy, in endorsements, or in so-called `plan of operation' endorsement now in use and heretofore approved by the Board of Insurance Commissioners, are hereby specifically withdrawn effective January 1, 1945.

"6. That all participating provisions either in the policy or endorsements to be used on or in connection with any policy in effect on and after January 1, 1945, must be approved by the Board of Insurance Commissioners, before it becomes effective.

"7. That the use of any plan, contract, agreement or resolution affecting the Workmen's Compensation policy contract as to rate, premium, classification, dividend or coverage not specifically approved and authorized by the Board of Insurance Commissioners, is hereby prohibited on or in connection with any policy in effect on and after January 1, 1945.

"8. That each insurance carrier writing Workmen's Compensation Insurance on a participating basis or plan, desiring to change its dividend plan or its method of determining dividends at any time subsequent to the dividend plan approved by the Board of Insurance Commissioners to be used on policies in effect on and after January 1, 1945, shall, before making any such change, submit such proposed dividend plan to the Board and secure approval of such plan before the same shall be used in the solicitation or writing of Workmen's Compensation Insurance or in any other manner.

"It is not intended by the Board of Insurance Commissioners in entering this Order to recognize the validity of any agreements which have been entered into between any insurance company and any insured employer, or which may be entered into in the future, not approved by the Board of Insurance Commissioners, which agreement or agreements may be illegal."

Paragraph 1 of said order was not attacked and its validity was upheld. Paragraphs 2 to 8, however, were held to be beyond the powers vested by law in the Board, Arts. 4907-4918a, R.C.S., as amended, Vernon's Ann.Civ.St. arts. 4907-4918a, and were set aside as void. However, the trial court limited the injunction granted as follows:

"The temporary injunction herein granted does not prohibit the Board of Insurance Commissioners from exercising its statutory powers to make and promulgate and enforce classifications of hazards and the rates of premium respectively applicable to each, a system of experience rating, from requiring adequate reserves before it approves an application for the payment of a sum out of savings or surplus for dividend distribution, as provided by Articles 4914 and section 23 of Article 8308, R.C.S. Texas 1925, nor from requiring sworn statements as authorized by Article 4910, R.C.S. Texas 1925, nor from requiring the filing of an annual statement as well as making examinations of plaintiff Association as authorized by section 16a of Article 8308, R.C.S. Texas 1925 [Vernon's Ann.Civ.St. art. 8308, § 16a]."

Limitations on the powers of the Board to control the operations of insurance carriers generally were stated by this court in Commercial Standard Insurance Co. v. Board of Insurance Commissioners, Tex.Civ.App., 34 S.W.2d 343, 345 (writ refused), as follows: "The board can exercise only the authority conferred upon it by law `in clear and unmistakable terms, and will not be deemed to be given by implication, nor can it be extended by inference, but must be strictly construed.' 51 C.J. 56, State v. Robison , 30 S.W.2d 292, 297." To the same effect is Humble Oil & Ref. Co. v. Railroad Commission, 133 Tex. 330, 128 S.W.2d 9; Board of Insurance Commissioners v. Guardian Life Ins. Co., 142 Tex. 630, 180 S.W.2d 906.

The Board relies, as the source of the power sought to be exercised in the order under attack, not only upon the Workmen's Compensation Law, V.A.C.S. Arts. 8306-8309a, as variously amended, and V.A.C.S. Arts. 4907 to 4918a, as amended; but also upon other statutes relating to the powers of the Board generally, and in relation to other types of insurance. However, because the statute itself has so minutely regulated workmen's compensation insurance, and because of the differences and distinctions between workmen's compensation and other types of insurance, the Legislature in Art. 4916, R.C.S., expressly provided "but the provisions of this Act (Workmen's Compensation) shall be construed and applied independently of any other law, or laws, or parts of laws, having to do with the matter of insurance rates or forms or of fixing the duties of the State Insurance Commission." The powers of the Board with regard to the order in question are therefore referable to the Workmen's Compensation Law; and must be found, if at all, within the provisions of that law.

It is also true that appellee association is itself created by that law and its powers and duties therein expressly defined. Its powers, therefore, being statutory and expressly granted by a part of the Workmen's Compensation Law, Art. 8308, R.C.S.1925, as amended, are in pari materia with the other provisions of that Law relating not only to compensation insurance but to the powers of the Board; and being so, the Board would have no authority to deny or limit the powers so given by law to appellee association, and any attempt to do so would be void.

Considering first paragraphs 4 to 8 of the order in question relating to dividends, as they affect appellee, and which furnish the chief ground of attack, a careful reading of these paragraphs manifests an effort of the Board to control dividends in complete detail in advance on the ground that distribution of such dividends may affect directly or indirectly the premium rate; and to forbid the writing of any compensation insurance by a participating company or association unless and until such a dividend plan has been submitted to and approved by the Board. And this, without setting forth in the order any standard by...