National Council on Compensation Ins. v. New Mexico State Corp. Com'n.

• Decision Date: 21 January 1986
• Docket Number: No. 16200,16200
• Citation: 103 N.M. 707,1986 NMSC 5,712 P.2d 1369
• Parties: NATIONAL COUNCIL ON COMPENSATION INSURANCE, Petitioner, v. NEW MEXICO STATE CORPORATION COMMISSION, and members thereof purporting to act as the State Insurance Board, and the Superintendent of Insurance, Vicente Jasso, Respondents.
• Court: New Mexico Supreme Court

Page 1369

712 P.2d 1369

103 N.M. 707

NATIONAL COUNCIL ON COMPENSATION INSURANCE, Petitioner, v. NEW MEXICO STATE CORPORATION COMMISSION, and members thereof

purporting to act as the State Insurance Board,

and the Superintendent of Insurance,

Vicente Jasso, Respondents.

No. 16200.

Supreme Court of New Mexico.

Jan. 21, 1986.

[103 NM 707] Rodey, Dickason, Sloan, Akin & Robb, Victor R. Marshall, Rex Throckmorton, Richard Minzner, Albuquerque, for petitioner.

Paul Bardacke, Atty. Gen., Christopher Carlsen, Asst. Atty. Gen., Santa Fe, for Respondents.

OPINION

WALTERS, Justice.

Objecting to a December 23, 1985, order of the New Mexico State Corporation Commission (purportedly acting as the insurance board) which canceled increased workmen's compensation insurance rates pursuant to a filing made by the National Council on Compensation Insurance on October 17, 1985, the Council petitioned this Court on December 30, 1985, for Writs of Emergency Relief, Mandamus and Certiorari.

The Council protests the cancellation on the ground that the Commission failed to follow the statutory procedure established in Article 17 of the Insurance Code, NMSA 1978, ch. 59A (Orig.Pamp.1984), for disapproving rate changes which otherwise would become effective 15 days after filing by the insurer, by operation of Section 59A-17-10. The Council concedes that Section 59A-17-35 of the Code provides for appeals from orders of the insurance board made "under Section 66 of the Insurance Code * * * to the district court of Santa Fe County in the same manner as provided for taking of appeals in other civil actions." But it contends that because the legislature did not enact a "Section 66," providing in 1984 N.M. Laws, ch. 127, that Section 66 was "reserved," there is no Section 66 order to be appealed by the procedure provided in Section 59A-17-35; and that in the absence of such an identifiable order, its only recourse is to this Court.

It is pertinent to our discussion to note that in the voluminous 420-page Insurance Code contained in Volume 8 of our New Mexico Statutes, only two references to Section 66 appear, and they are in Sections 59A-17-34 and -35 relating to hearings and appeals under Article 17, which deals with Insurance Rates and Rating. It is the administrative action provided for in Article 17 upon which the Council seeks review. It is equally critical to note that Section 59A-4-20 of the Code provides for an appeal to the Santa Fe district court from all orders under the Code except those "arising under Article 17 (insurance rates and rating) of the Insurance Code [this chapter]." The exception of proceedings under Article 17 alone from the review procedure provided in Section 59A-4-20 for the other 52 articles of the Code, and the reference to a "Section 66" appeal in Article 17 only, is some evidence that the legislature considered Article 17 orders to be "Section 66" orders, and that its failure to enact Section 66 to so define those orders was an inadvertent omission.

There is no doubt, from a reading of Section 59A-17-34, that the procedure for review of the superintendent's order by the insurance board was intended to be set out in Section 66 of 1984 N.M. Laws, ch. 127. Following the board's review under Section 59A-17-34, an appeal from its decision to the Santa Fe district court is provided in Section 59A-17-35. Thus, the meaning and intent of these two statutes is not difficult to discern; it is only the procedure of "Section 66" hearings by the insurance board that is missing.

We, therefore, liberally construe Section 59A-17-35 which gives the right of appeal, as the rules of statutory construction require us to do. 3 N. Singer, Sutherland Statutory Construction Sec. 67.08 (4th ed.1984). As the Sutherland treatise points out at Sections 47.36, 47.37, and 47.38, courts may substitute, disregard or eliminate, or insert or add words to a statute, if it is necessary to do so to carry out the legislative intent or to express the clearly manifested meaning of the statute. In the instant case, if "Section 59A-17-34" were substituted for "Section 66" in Section 59A-17-35, the meaning of the legislature as gathered from the context of the Insurance Code would clearly appear. Such a substitution would make Section 59A-17-35's provisions for appeal sensible, and give the section force and...