Ind. Bureau of Motor Vehicles v. Gurtner

• Decision Date: 26 February 2015
• Docket Number: No. 50A03–1407–MI–256.,50A03–1407–MI–256.
• Citation: 27 N.E.3d 306
• Parties: INDIANA BUREAU OF MOTOR VEHICLES, Appellant–Respondent, v. Jennifer M. GURTNER, Appellee–Petitioner.
• Court: Indiana Appellate Court

27 N.E.3d 306

INDIANA BUREAU OF MOTOR VEHICLES, Appellant–Respondent

v.Jennifer M. GURTNER, Appellee–Petitioner.

No. 50A03–1407–MI–256.

Court of Appeals of Indiana.

Feb. 26, 2015.

Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

James N. Clevenger, Wyland, Humphrey & Clevenger, LLP, Plymouth, IN, Attorneys for Appellee.

Opinion

MATHIAS

, Judge.

[1] The Indiana Bureau of Motor Vehicles (“BMV”) appeals the order of the Marshall Superior Court granting a petition for judicial review filed by Jennifer M. Gurtner (“Gurtner”) after her license was suspended for failure to provide proof of financial responsibility following an automobile accident. On appeal, the BMV claims that the trial court was without authority to grant the petition because the controlling statute provides the trial court with no discretion to overturn the suspension. Concluding that Gurtner did not adequately avail herself of the available statutory remedies, we reverse.

Facts and Procedural History

[2] The parties do not dispute the relevant facts of this case. On April 24, 2014, Gurtner was driving a vehicle owned by her and her husband when she struck a deer. Gurtner's car was damaged, and she reported the incident to the police. Following the accident, the BMV notified her that she was required to provide proof of financial responsibility, i.e., automobile insurance, at the time of the accident. Gurtner and her husband thought they had paid for automobile insurance on all of their vehicles, but because of a mistake on the part of Gurtner's insurance agent, the vehicle involved in the collision with the deer had been dropped from their insurance coverage. Gurtner was therefore unable to provide the BMV with proof of her financial responsibility. The BMV then notified Gurtner that her license would be suspended, pursuant to Indiana Code section 9–25–6–3

, for ninety days effective June 10, 2104.

[3] On June 12, 2014, Gurtner filed a verified petition for judicial review, seeking to challenge the BMV's suspension of her license. The trial court held a hearing on the matter on June 30, 2014, and orally granted Gurtner's petition at the conclusion of the hearing. The trial court entered a written order granting Gurtner's petition on July 2, 2014, which provides in relevant part:

2. The allegations in [Gurtner's] Petition for Judicial Review concerning the suspension of her driving privileges are true.

3. [Gurtner and her husband] have secured and paid for automobile liability insurance on all other parties' motor vehicles and had coverage on motor vehicles on April 24, 2014.

4. Through no fault of Jennifer Gurtner, she was not able to furnish the BMV [with proof of] financial responsibility.

5. The [BMV] does not permit drivers an administrative hearing to dispute and/or explain the driver's problems for complying with proof of financial responsibility.

THEREFORE, it is ordered that the [BMV] dismiss, withdraw, rescind, or revoke any administrative driver's license suspension of Jennifer M. Gurtner and that her full driving privileges be immediately reinstated and restored to her upon her payment of a reinstatement fee to the [BMV].

Appellant's App. p. 10. The BMV now appeals.

Standard of Review

[4] The State claims that we should review the trial court's order and that the trial court should have reviewed the BMV's order under the Administrative Orders and Procedures Act (“AOPA”), Indiana Code article 4–21.5.¹ This is incorrect. Review of the suspension of a driver's license for failure to provide proof of financial responsibility is governed by Indiana Code section 9–25–6–16(d)

. This section provides that “[a]n action taken or a determination made by the [BMV] under this section is not subject to IC 4–21.5 [i.e., AOPA]. However, the person may file a petition for judicial review under this chapter.” Id. Thus, judicial review of the suspension of driving privileges is specifically excluded from the purview of the AOPA. Yet, the remaining sections of Indiana Code chapter 9–25–6 contain no other provisions explaining the scope of the judicial review called for in section 16.

[5] Whatever can be said about the petition for judicial review called for in Indiana Code section 9–25–6–16

, we know that it is not the agency-deferential review set forth in the AOPA.² What is at issue here is essentially a question of statutory interpretation—whether the BMV has any discretion in deciding to suspend Gurtner's license. Such questions are purely of law and therefore reviewed de novo. Hilliard v. Jacobs, 916 N.E.2d 689, 692–93 (Ind.Ct.App.2009)

, trans. denied. The first, and often the last, step in interpreting a statute is to examine the language of the statute. Town of Chandler v. Indiana–Am. Water Co., 892 N.E.2d 1264, 1268 (Ind.Ct.App.2008). When we are confronted with an unambiguous statute, we do not apply any rules of statutory construction other than to give the words and phrases of the statute their plain, ordinary, and usual meaning. Id.

I. Statutory Construction

[6] Here, the relevant statutes clearly required Gurtner to present to the BMV evidence that she had insurance:

Not more than forty-five (45) days after the bureau receives a copy of an accident report under IC 9–26, the bureau shall send to each person identified in the report as an operator of a motor vehicle involved in the accident a request for evidence of financial responsibility under section 3 of this chapter, unless the evidence has already been filed with the bureau. The request for evidence of financial responsibility shall be sent to each person identified in the report as an operator of a motor vehicle involved in the accident regardless of fault.

Ind.Code § 9–25–5–2

(emphasis added).

[7] Section 4 of this chapter provides, “[t]o avoid suspension of driving privileges,” a person who receives such a request for financial responsibility “must ensure that the insurance company of the person provides the bureau with a certificate of compliance indicating that financial responsibility required by IC 9–25–4–1

was in effect with respect to the motor vehicle, or the operation of the motor vehicle, on the date of the accident described in the accident report.” Ind.Code § 9–25–5–4. Moreover, it is the responsibility of the person who receives such a request for proof of financial responsibility “to ensure that the insurance company of the person has provided a certificate of compliance.” Id.

[8] The penalty for failure to provide the BMV with such a certificate of compliance is set forth in Section 9–25–6–3

:

(a) If the bureau:

(1) does not receive a certificate of compliance for a person identified under IC 9–25–5–2

within forty (40) days after the date on which the bureau mailed the request for evidence of financial responsibility to the person; or

(2) receives a certificate that does not indicate that financial responsibility was in effect with respect to the motor vehicle operated by the person or operation of the motor vehicle by the person on the date of the accident referred to in IC 9–25–5–2

;

the bureau shall take action under subsection (d).

* * *

(d) Under the conditions set forth in subsection (a), (b), or (c), the bureau shall immediately suspend the person's driving privileges or motor vehicle registration, or both, as determined by the bureau, for at least ninety (90) days and not more than one (1) year.

Ind.Code § 9–25–6–3

(emphasis added).

[9] Thus, the plain language of the statutes at issue required the BMV to suspend Gurtner's license because, regardless of fault, she could not provide proof of financial responsibility at the time of the accident due to the undisputed fact that the car she was driving at the time of the accident was not covered by her insurance carrier. See Spencer v. Spencer, 990 N.E.2d 496, 497 (Ind.Ct.App.2013)

(“The use of the word ‘shall’ in a statute ‘generally connotes a mandatory as opposed to a discretionary import.’ ”) (quoting Parmeter v. Cass Cnty. Dep't of Child Services, 878 N.E.2d 444, 447 (Ind.Ct.App.2007) ).

II. Due Process

[10] Gurtner admits that the relevant statute required that her license be suspended. She claims, however, that the BMV denied her due process by failing to provide for a system of administrative review. The State argues that we should not consider Gurtner's due process argument because she did not present this issue to the trial court. Accordingly, we address the State's claim of waiver before addressing the merits of Gurtner's claim.

A. Waiver

[11] It has long been the general rule in Indiana that an argument or issue presented for the first time on appeal is waived for purposes of appellate review. See, e.g., Plank v. Cmty. Hospitals of Ind., Inc., 981 N.E.2d 49, 53 (Ind.2013)

(“[A]ppellate review presupposes that a litigant's arguments have been raised and considered in the trial court.”); Ind. Dep't of Envtl. Mgmt. v. Raybestos Prods. Co., 897 N.E.2d 469, 474 (Ind.2008) ( “Generally, an appellate court will not review an issue that was not presented to the trial court.”), corrected on reh'g, 903 N.E.2d 471 (Ind.2009) ; Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind.2000) (“A party may not raise an issue for the first time in a motion to correct error or on appeal.”); Franklin Bank & Trust Co. v. Mithoefer, 563 N.E.2d 551, 553 (Ind.1990) (“A party cannot change its theory and on appeal argue an issue which was not properly presented to the trial court.”); Indianapolis Newspapers, Inc. v. Fields, 254 Ind. 219, 260, 259 N.E.2d 651, 670 (1970) (“We do not review issues presented for the first time on appeal except to avoid grave injustice.”).

[12] As we explained in GKC Indiana Theatres v. Elk Retail Investors, LLC:

This rule exists because trial courts have the authority to hear and weigh the evidence, to judge the credibility of witnesses, to apply the law to the facts found, and to decide questions raised by the parties. Appellate courts, on the other hand,

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