Ohio Cas. Ins. Co. v. Insurance Com'r

• Decision Date: 09 June 1978
• Docket Number: No. 1145,1145
• Citation: 387 A.2d 622,39 Md.App. 547
• Parties: The OHIO CASUALTY INSURANCE COMPANY v. INSURANCE COMMISSIONER of the State of Maryland.
• Court: Court of Special Appeals of Maryland

Page 547

39 Md.App. 547

387 A.2d 622

The OHIO CASUALTY INSURANCE COMPANY v. INSURANCE COMMISSIONER of the State of Maryland.

No. 1145.

Court of Special Appeals of Maryland.

June 9, 1978.

William M. Nickerson, Baltimore, with whom were Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on brief, for appellant.

Thomas E. Plank, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Carl E. Eastwick, Asst. Atty. Gen., on brief, for appellee.

Argued before GILBERT, C. J., and MOYLAN and MASON, JJ.

GILBERT, Chief Judge.

"Once the decision to appeal has been made, the first, obvious and cardinal duty of the appellate advocate is to read with care and attention the rules of the Court of Appeals." A. Scanlan, ¹ Effective Appellate Advocacy in the Court of Appeals of Maryland, 29 Md.L.Rev. 126, 127 (1969). ² The case now before us must fall casualty to appellant's failure to comply with Md. Rules ch. 1100, "Subtitle B. Administrative Agencies Appeal From."

This appeal arises directly from a complaint filed by Myles Farley, the principal of Stansbury Joppatowne, Inc., trading as Stansbury Photo & Stereo (Stansbury) with the Insurance Commissioner, Maryland Department of Licensing and Regulation (Commissioner) against Ohio Casualty Insurance Company (Ohio). The focal point of the dispute is a disagreement as to which of two (2) endorsements, one providing coverage of up to one thousand dollars ($1,000) and the other setting a monetary ceiling of fifteen thousand dollars ($15,000) applies to Stansbury's claim for recompense for losses incurred in an armed robbery. Ohio would agree to reimburse Stansbury to the extent of the lower limit coverage only. Stansbury, however, contended that the higher limit endorsement applied to his claim, and, as we have indicated, he filed charges with the Commissioner under Md.Ann.Code art. 48A, § 55(2)(iv), alleging that Ohio "unreasonably refused or delayed payment to the Complainant of the amount due. . . ."

The Commissioner, pursuant to Md.Ann.Code art. 48A, § 27, convened a hearing on December 11, 1975. Approximately two (2) months later, the Commissioner issued an order in which he found that Ohio was liable under the endorsement that set the higher limits. Ohio was held to be in violation of Md.Ann.Code art. 48A, § 55, as a result of unreasonably refusing or delaying payment to Stansbury. The Commissioner directed Ohio "to . . . pay unto the Complainant (Stansbury) restitution for the loss which occurred on or about April 26, 1975. . . ."

Ohio, on February 26, 1976, filed a notice of appeal in the Baltimore City Court, in accordance with Md.Ann.Code art. 48A, § 40(1). Although the appeal was timely taken, Ohio overlooked the requirement of Md. Rule B2 e that a petition "setting forth the action appealed from, the error committed by the agency in taking such action, and the relief sought . . ." must be filed with the clerk of the court not later than ten (10) days after the filing of the order of appeal.

Within the time allowed for an answer, Md. Rule B9, but well after the ten (10) day period in which to file the petition had expired, the Commissioner moved pursuant to Md. Rule B5 to dismiss Ohio's appeal for noncompliance with Md. Rule B2 e.

On the seventh day following the Commissioner's motion to dismiss, Ohio responded by dual pleadings in the City court. It belatedly complied with Md. Rule B2 e by filing the required "petition" alleging that the Commissioner's findings were not in accord with the factual evidence adduced at the administrative hearing. Ohio also answered the Commissioner's motion to dismiss. In its response, Ohio sought to excuse its failure to obey Md. Rule B2 e by stating that "if found to be in error as to procedure, (it) was misled by the statutory provision of Art. 48A, § 40, which appears to provide complete separate and distinct procedural guidelines for appeals from Orders of the Insurance Commissioner."

Md.Ann.Code art. 48A, § 40(1) provides in pertinent part:

"An appeal from the Commissioner shall be taken only from an order on hearing or with respect to a matter as to which the Commissioner has refused a hearing. Any person who was a party to such hearing, or whose pecuniary interests are directly and immediately affected by any such order or refusal and who is aggrieved thereby may, within thirty (30) days after (i) the order has been mailed or delivered to the persons entitled to receive . . . (it) appeal from such order . . .. The appeal shall be taken to the Baltimore City court, by filing written notice of appeal in such court and by filing a copy of such notice with the Commissioner . . .."

The motion by the Commissioner to dismiss Ohio's appeal from the Commissioner's order was denied by a judge of the Supreme Bench. Subsequently, the matter was heard on its merits before Judge David Ross who affirmed the Commissioner's order. Ohio has now carried its "great bundle of grief" ³ to this Court, where it urges us to banish its sorrow by reversing Judge Ross' order. The Commissioner, either not satisfied with having prevailed in the City court on the merits, or not to be outdone by Ohio, has also appealed. The Commissioner asserts that the hearing court ⁴ erred in denying the motion to dismiss Ohio's appeal from the Commissioner's order.

We shall consider the counter-appeal first in view of the fact that if the motion to dismiss was improperly denied, the City court lacked jurisdiction to hear the merits and Ohio's appeal, in its present posture, is not properly before us. The hearing judge ruled that Ohio had "complied with (the) statutory requirements" relative to appeals from the Commissioner, and, accordingly, he denied the motion to dismiss. By so doing, the judge implicitly held that Md. Rules, Ch. 1100, Subtitle B, were not controlling.

Md. Rule B1 a provides that Subtitle B "shall apply to the review of any final action of an administrative agency by a court where such review is specially authorized by statute . . .." An administrative agency is defined by Md. Rule B1 b to mean, inter alia, "any . . . commissioner . . . whose action or decision is specifically subject to court review . . .."

If Ohio's appeal falls within the ambit of the B rules, it is subject to the clear mandate of Rule B2 e, which states:

"The appellant shall join with his order for appeal, or shall file with the clerk of the court, within ten days after filing the order, a petition setting forth the action appealed from, the error committed by the agency in taking such action, and the relief sought, and shall serve a copy thereof on the agency."

Failure to comply with Rule B2 e may result in dismissal of the appeal under Rule B5.

"If the appellant shall fail to file his order for appeal within the time prescribing by Rule B4 (Time for Filing) or any order issued pursuant thereto, or shall fail to file his petition within the time prescribed by section e of Rule B2 (How Appeal Taken), the court shall dismiss the appeal unless cause to the contrary be shown." Md. Rule B5. (Emphasis supplied.)

See Renehan v. Public Service Comm. 231 Md. 59, 188 A.2d 566 (1963); Aberle v. Mayor & City Council of Baltimore, 228 Md. 542, 180 A.2d 836 (1962); Merrimack Park v. County Board of Appeals, 228 Md. 184, 179 A.2d 345 (1962).

Ohio contends that it successfully proved "cause" for not complying with Md. Rule B2 e. "Cause," as used in Md. Rule B5, refers to "good cause." Merrimack Park v. County Board of Appeals, supra; Madore v. Baltimore County, 34 Md.App. 340, 367 A.2d 54 (1976). In Madore, this Court quoted approvingly from Lee v. Houston Fire & Cas. Ins. Co., 530 S.W.2d 294, 296 (Tex.1975) where it was stated:

" 'The test for . . . (finding good cause) is that of ordinary prudence, that is, whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.' " 34 Md.App. at 345, 367 A.2d at 57.

Ohio maintains that Md.Ann.Code art. 48A, § 40's "procedural mandates are presented in such language and detail as to lead to the conclusion that the following of the procedural requirements set down by the statute is altogether sufficient to perfect an appeal to the Baltimore City Court. The reason why a petition for appeal was not joined to the order of appeal . . . is that counsel for Ohio believed that the procedures outlined in Art. 48A, Sec. 40 were complete and accomplished what they purport to be accomplish on their face, i. e., how to take an appeal."

Ohio relies heavily upon the wording of what it terms a "particularly descriptive . . . subtitle: '(1) Decisions Appealable; how, and by whom appeal taken. . . . ' " What Ohio ignores is that the "particularly descriptive . . . subtitle" is not part of the law as enacted. See 1976 Md.Laws Ch. 472, § 11; 1975 Md.Laws Ch. 221, § 1; 1974 Md.Laws Ch. 748; 1966 Md.Laws Ch. 412; 1963 Md.Laws Ch. 553; 1962 Md.Laws Ch. 36, § 32; 1945 Md.Laws Ch. 564, § 1. The "subtitle" quoted by Ohio is but the Editor's catchwords to indicate the content of the section and "unless expressly provided," it is not part of the law. Md.Ann.Code art. 1, § 18 declares:

"The captions or headlines of the several sections of this Code which are printed in bold type, and the captions or headlines of the several subsections of this Code which are printed in italics or otherwise, are intended as mere catchwords to indicate the contents of the sections and subsections. They are not to be deemed or taken as titles of the sections and subsections, or as any part thereof; and, unless expressly so provided, they shall not be so deemed or taken when any of such sections and subsections, including the captions or headlines, are amended or reenacted."

See Montgomery County v. Eli, 20 Md.App. 269, 315 A.2d 136 (1974).

That Ohio was misled, as it avers, by the "particularly descriptive . . . subtitle" is no excuse. The law is...