Evanson v. Wigen

• Decision Date: 30 August 1974
• Docket Number: No. 9012,9012
• Citation: 221 N.W.2d 648
• Parties: Richard E. EVANSON, Petitioner/Appellee, v. J. O. WIGEN, Commissioner of Insurance, Respondent/Appellant.
• Court: North Dakota Supreme Court

Page 648

221 N.W.2d 648

Richard E. EVANSON, Petitioner/Appellee, v. J. O. WIGEN, Commissioner of Insurance Respondent/Appellant.

No. 9012.

Supreme Court of North Dakota.

Aug. 30, 1974.

Syllabus by the Court

1. The Commissioner of Insurance, before revoking a license under § 26--17--01.12, N.D.C.C., after a hearing has been requested and conducted, must make findings of fact and separate conclusions of law, and a decision based upon such findings and conclusions.

2. Failure of a party, who has made an appearance by requesting a hearing, to appear personally at that hearing does not obviate the necessity of establishing a prima facie case through evidence adduced at the hearing for the revocation of an insurance agent's license.

3. The judicial review provisions of Chapter 28--32, N.D.C.C., are not exclusive and § 26--17--01.13, N.D.C.C., provides an additional remedy that is separate from and independent of Chapter 28--32.

4. Whenever a general provision in a statute shall be in conflict with a special provision in the same or in another statute, the two shall be construed, if possible, so that effect may be given to both provisions, but if the conflict between the two provisions is irreconcilable the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest legislative intent that such general provision shall prevail. Section 1--02--07, N.D.C.C.

5. For reasons stated in the opinion, the judgment reversing the order of the Insurance Commissioner and remanding the matter to the Insurance Commissioner is affirmed.

Thomas O. Smith, Sp. Asst. Atty. Gen., Dept. of Ins., Bismarck, for respondent/appellant.

McGee, Hankla, Backes & Wheeler, Minot, for petitioner/appellee.

KNUDSON, Judge.

This is an appeal by the Commissioner of Insurance (hereinafter Commissioner) from an order of the district court declaring void the Commissioner's order revoking the licenses of Richard E. Evanson (hereinafter Evanson) as a resident insurance agent, and remanding the matter to the Commissioner for a hearing on the merits.

A complaint was filed with the Commissioner by Grayce E. Twito in regard to Evanson's conduct as an insurance agent. Pursuant to the complaint, the Commissioner gave a notice of opportunity for hearing, stating the Commissioner's proposed order:

'IT IS HEREBY ORDERED that the licenses of the said Richard E. Evanson to act as a resident insurance agent in the State of North Dakota be and hereby are revoked.'

Upon receipt of the notice of opportunity for hearing, Evanson filed with the Commissioner a request for a hearing and asserted therein that the allegations in the complaint were false. Thereupon the Commissioner issued a notice of hearing notifying Evanson that a hearing would be held in the Commissioner's office on September 18, 1973 at 3:00 P.M. CDST. Evanson was neither present nor represented by counsel at the hearing. The Commissioner proceeded in the absence of Evanson with the hearing and received the following documents:

1. Commissioner's Exhibit #1, complaint signed by Grayce E. Twito;

2. Commissioner's Exhibit #2, the notice of opportunity for hearing;

3. Commissioner's Exhibit #3, Evanson's request for a hearing; and

4. Commissioner's Exhibit #4, the notice of hearing.

Upon the motion by the counsel for the Commissioner and the exhibits received, the Commissioner entered an order revoking Evanson's licenses. The Commissioner's findings of fact, conclusions of law, decision, and order were served upon Evanson by certified mail.

Evanson asserts that shortly thereafter he met with the Commissioner and discussed the matter of obtaining a rehearing. The date of the meeting is not clear and the substance of the discussion is in dispute. However, it is agreed that the Commissioner at this time advised Evanson to retain counsel. Whatever may have been the matter discussed, no rehearing was granted by the Commissioner.

Evanson then filed with the district court a petition for a judicial review of the proceedings of the Commissioner with an affidavit in support thereof for an order to show cause why the licenses should not be reinstated. The Commissioner filed a motion to vacate the order to show cause and a return to the order to show cause. The matter came on for hearing before the district court, whereat no additional testimony was taken.

The court declared the order revoking Evanson's licenses void, and remanded the matter to the Commissioner for a hearing on the merits. It is from this order that the Commissioner appeals.

The Commissioner charged Evanson had violated the provisions of paragraphs (e), (h) and (j) of § 26--17--01.12, N.D.C.C., which provides the Commissioner with authority to revoke an insurance agent's license under certain conditions. It provides, in part relevant to this matter:

'1. A license may be refused or a license duly issued may be suspended or revoked or the renewal thereof refused by the commissioner of insurance, if he finds that the applicant for or holder of such license:

'e. Has otherwise demonstrated lack of trustworthiness or competence to act as an insurance agent; or 'h. Has been guilty of fraudulent or dishonest practices; or

'j. Has made or issued, or caused to be made or issued, any statement misrepresenting or making incomplete or misleading comparisons regarding the terms or conditions of any insurance or annuity contract legally issued by any insurer, for the purpose of inducing or attempting to induce the owner of such contract to forfeit or surrender such contract or allow it to lapse for the purpose of replacing such contract with another;

'2. Before any license shall be refused, except for failure to pass a required written examination, or suspended or revoked or the renewal thereof refused hereunder, the commissioner of insurance shall give, either personally or by registered or certified mail, notice of opportunity for a hearing to the applicant for or holder of such license and the insurer whom he represents or who desires that he be licensed. Such notice shall state the order which the commissioner proposes to issue, the grounds for issuing such order, and that the person to whom such notice is given will be afforded a hearing upon written request to the commissioner if such request is made within ten days after receipt of the notice.

'3. Whenever a person requests a hearing in accordance with the provisions of this section, the commissioner of insurance shall set a date, time, and place for such hearing and shall notify the person requesting such hearing thereof. The date set for such hearing shall be within fifteen days, but not earlier than five days, after the request for the hearing has been received, unless otherwise agreed to by both the commissioner and the person requesting such hearing. In the conduct of such hearing, the Commissioner of insurance or his designee shall have the powers specified in chapter 28--32, and the proceedings shall conform to chapter 28--32 insofar as that chapter is applicable and not in conflict with this section.

'4. If the commissioner of insurance does not receive a request for a hearing within the prescribed time, he may enter the proposed order. If a hearing is requested and conducted with respect to a proposed order, the commissioner shall make and state his findings of fact and separate conclusions of law and his decision based upon such findings and conclusions. The commissioner shall give notice of his decision by delivering a copy thereof to all the parties to the proceeding either personally or by registered or certified mail, and if such notice is given by registered or certified mail, the notice shall be deemed given as of the date of the registry or certification.'

The Commissioner contends, notwithstanding that a request for a hearing had been filed with him, that upon the nonappearance by Evanson at the hearing, the Commissioner could enter the proposed order. This contention is not persuasive. The statute, subsection 4 of § 26--17--01.12, provides that when a hearing is requested and conducted the Commissioner shall make and state his findings of fact and separate conclusions of law and his decision based upon such findings and conclusions. The statute does not state that one must appear at the hearing after requesting it in order to set in motion the requirement that the Commissioner must make findings of fact before making a decision. The language used is an apt method of ensuring that upon a request for a hearing the Commissioner's decision would be based upon a careful consideration of the evidence adduced, rather than upon a mere statement of the allegations in the complaint and upon a motion by counsel for the Commissioner to enter the order.

Evanson was entitled to a notice from the Commissioner of the intent to make an order revoking Evanson's licenses regardless of his failure to attend the hearing, as he had made an appearance in the proceeding by his request for a hearing. In the usual civil action, judgment by default may be entered if a party has failed to plead or appear, but if the party against whom judgment is sought has made an appearance in the action he must be served with notice of the application for judgment. North Dakota Rules of Civil Procedure, rule 55, provides:

'(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise appear and the fact is made to appear by affidavit or otherwise, the court may direct the clerk to enter an appropriate judgment by default in favor of the plaintiff and against the defendant as follows:

'(3) . . . If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least eight days prior to the hearing...