Boyd v. Goodman-Gable-Gould ( 2021 )

David Boyd, et ux. v. The Goodman-Gable-Gould Company, No. 2139, September Term
2019. Opinion by Eyler, James R., J.
Administrative Law-Collateral Estoppel
Facts: In 2016, a fire destroyed the home of David Boyd and Penny Coco-Boyd
(collectively “the Boyds”), appellants. They gave notice of their loss to State Farm Fire
and Casualty Company (“State Farm”), their homeowners’ insurer. They later engaged a
public adjuster, The Goodman-Gable-Gould Co., d/b/a Goodman-Gable-Gould
Co./Adjusters International (“GGG”), appellee, to adjust their claim with State Farm in
exchange for a fee of six percent of any proceeds collected on their behalf.
Unsatisfied with GGG’s services, the Boyds filed a complaint with the Maryland
Insurance Administration (“MIA”), alleging that GGG, through its agents, engaged in
fraudulent and dishonest practices, displayed incompetence, and wrongfully withheld
monies from them. The Boyds sought over $100,000 in restitution and the return of
insurance proceeds they alleged were being withheld by GGG. They also asked the MIA
to impose administrative penalties on GGG.
While that complaint remained pending, the Boyds filed in the Circuit Court for
Montgomery County against GGG a complaint for declaratory judgment, the instant
action, seeking a declaration that they had a legal right to terminate their contract with
GGG. After the MIA completed its investigation of the administrative complaint and
issued a preliminary decision in GGG’s favor, the Boyds did not request an
administrative hearing to contest that determination. They filed an amended complaint in
the circuit court action adding claims for breach of contract, restitution, negligence, and
fraud, and seeking compensatory and punitive damages.
GGG moved for summary judgment on the ground that the Boyds were
collaterally estopped by the MIA decision from pursuing any relief and moved to strike
the amended complaint. Following a hearing, the circuit court granted GGG’s motions for
summary judgment and to strike, concluding respectively that the Boyds were collaterally
estopped by the MIA decision and that GGG suffered actual prejudice occasioned by the
timing of the amendments to the complaint. The Boyds’ motions for reconsideration and
to alter or amend were denied.
The issues on appeal were whether the court erred in granting summary judgment
and erred in striking the amended complaint.
Held: The MIA action initiated by the Boyds was a complaint, not an
“examination” within the meaning of the Insurance Article and implementing regulations,
but the MIA decision was not a quasi-judicial proceeding, and thus, the Boyds were not
collaterally estopped by the decision. Moreover, the Boyds were not required to exhaust
administrative remedies before pursuing relief in the circuit court because the relevant
factors weighed in favor of concurrent jurisdiction.
Thus, the circuit court erred in granting summary judgment. Because the circuit
court struck the amended complaint on the ground of collateral estoppel, the court also
erred in that ruling.
Circuit Court for Montgomery County
Case No. 444997V
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2139
September Term, 2019
______________________________________
DAVID BOYD, ET UX.
v.
THE GOODMAN-GABLE-GOULD
COMPANY D/B/A GOODMAN-GABLE-
GOULD/ADJUSTERS INTERNATIONAL
______________________________________
Fader, C.J.
Beachley,
Eyler, James R.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Eyler, James R., J.
______________________________________
Filed: May 27, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-05-27 10:54-04:00
Suzanne C. Johnson, Clerk
In 2016, a fire destroyed the home of David Boyd and Penny Coco-Boyd
(collectively “the Boyds”), appellants. They gave notice of their loss to State Farm Fire
and Casualty Company (“State Farm”), their homeowners’ insurer. They later engaged a
public adjuster, The Goodman-Gable-Gould Co., d/b/a Goodman-Gable-Gould
Co./Adjusters International (“GGG”), appellee, to adjust their claim with State Farm in
exchange for a fee of six percent of any proceeds collected on their behalf.
Unsatisfied with GGG’s services, the Boyds ultimately filed a complaint with the
Maryland Insurance Administration (“MIA”), alleging that GGG, through its agents,
engaged in fraudulent and dishonest practices, displayed incompetence, and wrongfully
withheld monies from them. The Boyds sought over $100,000 in restitution and the
return of insurance proceeds they alleged were being withheld by GGG. They also asked
the MIA to impose administrative penalties on GGG.
While that complaint remained pending, the Boyds filed in the Circuit Court for
Montgomery County against GGG and State Farm,1 a complaint for declaratory
judgment, the instant action, seeking a declaration that they had a legal right to terminate
their contract with GGG. After the MIA completed its investigation of the administrative
complaint and issued a preliminary decision in GGG’s favor, the Boyds did not request
an administrative hearing to contest that determination. They filed an amended complaint
in the circuit court action adding claims for breach of contract, restitution, negligence,
and fraud, and seeking compensatory and punitive damages.
1
The Boyds voluntarily dismissed their claim against State Farm on March 29,
2019.
GGG moved for summary judgment on the ground that the Boyds were
collaterally estopped by the MIA decision from pursuing any relief and moved to strike
the amended complaint. Following a hearing, the circuit court granted GGG’s motions for
summary judgment and to strike, concluding respectively that the Boyds were collaterally
estopped by the MIA decision and that GGG suffered actual prejudice occasioned by the
timing of the amendments to the complaint. The Boyds’ motions for reconsideration and
to alter or amend were denied.
On appeal, the Boyds present six questions,2 which we have condensed and
rephrased as two:
I. Did the trial court err by granting summary judgment in favor of GGG on
the ground of collateral estoppel?
II. Did the trial court err or abuse its discretion by granting GGG’s motion
to strike the amended complaint?
2
The questions as posed by the Boyds are:
1. Did the trial court misapply provisions of the Insurance Article
concerning a request for an administrative hearing pertaining to a proposed
examination report of a Maryland Insurance Administration investigation of
a public adjuster to the Boyds?
2. Did the trial court commit reversible error in granting GGG’s motion for
summary judgment based on collateral estoppel?
3. Did the trial court deprive the Boyds of procedural due process by
denying them an adjudication?
4. Did the trial court commit reversible error by striking the Amended
Complaint?
5. Did the trial court commit reversible error by denying the Motion to
Alter or Amend Judgment?
6. Did the trial court commit reversible error by denying the Motion for
Reconsideration of the Order granting GGG’s Motion to Strike?
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For the following reasons, we reverse the grant of summary judgment in favor of
GGG and remand for further proceedings not inconsistent with this opinion.
FACTS AND PROCEEDINGS3
A. Background
The Boyds’ property, located at 14001 Gorky Drive in Potomac, was insured by
State Farm under a homeowners policy. As pertinent, under “Coverage A – Dwelling,”
the policy provided replacement coverage for the dwelling up to $945,758 and under
“Coverage A – Dwelling Extension” additional coverage up to $94,576 for “other
structures on the residence premises, separated from the dwelling by clear space” and not
attached to the dwelling, except by a “fence, utility line, or similar connection[.]”
On June 13, 2016, the dwelling on the Property was destroyed by a fire. An
adjacent or adjoining deck constructed of Brazilian Ipé Walnut hardwood valued at
$112,344 was damaged by the fire, but the Boyds believed much of the wood could be
salvaged. A gazebo, driveway, and landscaping on the Property also sustained damage in
the fire. The Boyds’ State Farm insurance agent, Amy James, advised them that the
property was a “total loss” and would exceed their policy limits.
On July 13, 2016, the Boyds contracted with GGG for it to adjust their claim with
State Farm. The terms of the one-page contract were that GGG would assist the Boyds in
their effort to recover for the loss to their dwelling and personal property “for a fee of six
3
Because the Boyds appeal from a summary judgment, we present the underlying
facts in the light most favorable to them. We note, however, that GGG disputes many of
these allegations.
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percent (6%) of the gross amount adjusted or otherwise recovered as a result of said
claim or claims” and assist the Boyds to recover additional living expenses (“ALE”)
without any fee. The Boyds assigned to GGG the right to proceeds paid by State Farm up
to the amount of the six percent fee. With some exceptions, GGG would bear the cost of
estimates and any expert opinions necessary to support the Boyds’ claim. Zachary
Forrest, a GGG senior vice president, met with the Boyds to discuss their claim. He
expressed the view that the deck, along with a gazebo that sustained fire damage, should
be demolished and rebuilt. He advised the Boyds that they could obtain additional
coverage to replace the deck and gazebo under the Dwelling Extension coverage,
maximizing their coverage under the policy.
In January 2017, Forrest transmitted to State Farm the Boyds’ estimates for their
losses, which were prepared by a building consultant retained by GGG. The estimates
exceeded the Boyds’ policy limits.
On March 17, 2017, before State Farm had responded to the estimates, demolition
commenced at the Property. On or about March 18, 2017, the Boyds’ contractors
demolished the deck. Ultimately, State Farm paid the Boyds their policy limits under
Coverage A – Dwelling, but only paid about one quarter of the Dwelling Extension
Coverage limits because it did not deem the deck to be an “other structure.” As James
explained in a March 29, 2017 letter to Forrest: “the decks on the home are not
considered covered under the dwelling extension coverage and are considered part of the
main structure. The dwelling extension portion of the estimate includes the walkway,
driveway and fence.” In the months that followed that letter, Forrest, in consultation with
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the Boyds, followed up with James to clarify State Farm’s position relative to the deck.
In June 2017, State Farm denied coverage for the deck as a dwelling extension because it
concluded that the deck was permanently attached to the dwelling and was not separated
from the dwelling by a clear space.
By January 2018, the Boyds had retained counsel, who sent a demand letter to
GGG and gave notice of the Boyds’ intent to terminate their contract.
B. The MIA complaint
On March 13, 2018, the Boyds, through counsel, filed a “Property & Casualty
Complaint[]” with the MIA. On the complaint form, they designated GGG as the public
adjuster against whom they were registering their complaint and Forrest as their agent. In
the section provided for “BRIEF DETAILS OF YOUR COMPLAINT,” the Boyds cross-
referenced an attached 11-page “COMPLAINT” with 18 exhibits. The complaint detailed
the Boyds’ history with GGG and Forrest; the unsuccessful claim for replacement of the
deck under the “Dwelling Extension” coverage; GGG’s retention of insurance proceeds
from State Farm; and other issues pertaining to GGG’s handling of their claim. The
Boyds alleged that GGG had violated section 10-410(a)(3), (4), (5) and (9) of the
Insurance (“Ins.”) Article,4 authorizing the Insurance Commissioner (“Commissioner”) to
suspend or revoke a public adjuster’s license if it violated the Insurance Article, engaged
in fraud or dishonesty, demonstrated incompetency or untrustworthiness, or failed to pay
money due on demand. The relief sought by the Boyds included $112,344 in restitution
4
All references to the Insurance Article are to the 2017 Replacement Volume,
unless otherwise indicated.
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for the loss of their deck; “compensation for loss of Replacement Cost reimbursement for
their personal property”; ALE they expected to incur; “additional landscaping
reimbursement”; and storage fees they had incurred. They also asked the MIA to impose
fines on GGG for each violation of the Insurance Article and to issue an order directing
GGG to release the funds withheld from them.
On April 4, 2018, Andrew Beatty, an MIA “Insurance Investigator,” wrote to
GGG to inform it that it was the subject of a complaint filed by Ms. Boyd and attaching a
copy of the complaint. Beatty directed GGG to provide him with a “complete copy of
[its] claim file/log, including copies of all correspondence”; copies of photographs and
estimates; a “list of all payments received from the insurer, and all disbursements made
on the claim”; and to specifically respond to the Boyds’ complaints concerning the deck
damage claim, the personal property and landscaping claims, the ALE and storage
claims, and the claim that GGG had not released $72,048 in proceeds to them. Beatty
advised that he would review GGG’s response pursuant to Ins. §§ 27-303 and 27-304 and
COMAR 31.15.07.03.5
On May 1, 2018, GGG responded to the Boyds’ complaint.
5
Title 27 of the Insurance Article governs “Unfair Trade Practices and Other
Prohibited Practices” and Subtitle 3 of that Title pertains to “Unfair Claim Settlement
Practices” by insurers. See Ins. §§ 27-303 & 27-304 (prohibiting an “insurer, nonprofit
health service plan, or health maintenance organization” from engaging in certain
practices). COMAR 31.15.07.03 likewise pertains to unfair claim settlement practices by
insurers. See COMAR 31.15.07.03A (“a prohibited unfair claim settlement practice
occurs if an insurer commits” certain acts).
-6-
Sometime after June 7, 2018, the Boyds supplemented their complaint with the
MIA by submitting a 28-page “Deck Claim Analysis.”
On October 6, 2018, the Boyds, through counsel, wrote to Beatty to determine
when he expected to complete his investigation and issue a decision “pursuant to
COMAR 31.16.10.04.”6 The Boyds emphasized that simultaneously with the MIA
Action, they were pursuing declaratory relief in the circuit court to terminate their
contract with GGG and avoid any obligation to pay future commissions. By letter dated
October 6, 2018, counsel for the Boyds sent a letter to the MIA investigator stating that
“any ensuing hearing before the Office of Administrative Hearings will produce a ruling
which could be considered binding on the Parties, it would make sense to conclude the
administrative process before litigating in Circuit Court.”
A little over three weeks later, in an eight-page single-spaced letter, Beatty advised
the Boyds’ counsel that the MIA had “completed the review of the issues raised in [their]
complaint, . . . [GGG’s] response . . ., the documents contained in [GGG’s] file, and the
documents contained in State Farm[’s] . . . claim file” and had “determined that GGG’s
actions [were] not in violation of Maryland insurance law.” The letter addressed each of
the Boyds’ complaints relative to the deck claim, the landscaping claim, the contents
6
This regulation falls under the “Miscellaneous” Subtitle of the MIA regulations
applicable to “carriers that issue or deliver insurance policies or health maintenance
organization contracts in Maryland.” COMAR 31.16.10.01. The specific regulation cited
by the Boyds pertains to a determination following a complaint investigation. It requires
the Commissioner, or his or her designee, to “document the findings of the complaint
investigation in a determination letter” and provide those findings to “to the complainant
and the carrier that was the subject of the complaint[.]” COMAR 31.16.10.04.
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claim, and the ALE claim. Beatty explained that the MIA’s review of “the propriety of
GGG’s handling of the claim” was circumscribed by Ins. § 10-410, which specifies the
grounds for discipline of a public adjuster. Beatty focused upon four subsections that
authorize the MIA to discipline a public adjuster who violates the Insurance Article;
engages in fraudulent or dishonest practices; demonstrates incompetency or
untrustworthiness; or misappropriates, converts, or unlawfully withholds money that
belongs to an insured. Ins. § 10-410(a)(1), (3), (4) & (5). Beatty reasoned that though the
Boyds were “not . . . satisfied with GGG’s handling of their claim, GGG’s actions ha[d]
not demonstrated a lack of trustworthiness or competence or otherwise been shown to be
in violation of the Insurance Article.” Beatty closed by advising the Boyds’ attorney:
This determination is subject to your clients’ right to a hearing pursuant to
the Annotated Code of Maryland, Insurance Article, Section 2-210[7] and
the Code of Maryland Regulations (“COMAR”) 31.02.01.[8] To request a
hearing you must do so in writing and the request must be received by the
Insurance Administration within thirty (30) days of the date of this letter.
Such a request shall specify the grounds to be relied upon as a basis for the
relief to be demanded at a hearing. Attached please find a copy of the
COMAR Regulation that addresses your right to a hearing. If a hearing is
not timely requested, this determination will be final.
7
Ins. § 2-210 governs hearings before the Insurance Commissioner or his or her
designee, and provides, as pertinent, that the Commissioner “shall hold a hearing . . . on
written demand by a person aggrieved by any act of, threatened act of, or failure to act by
the Commissioner or by any report, regulation, or order of the Commissioner[.]” Ins. § 2-
210(a)(2). Hearings are to be conducted in accordance with the contested case provisions
of the Administrative Procedure Act. Ins. § 2-210(c).
8
COMAR 31.02.01 governs contested case hearings held before the
Commissioner or his or her designee, and contested case hearings delegated to the Office
of Administrative Hearings.
-8-
A copy of COMAR 31.02.01.03,9 an MIA “Hearing Request Form,” and a “Consumer
Questionnaire” were attached to the letter. The hearing request form was prefilled with
the Boyds’ attorney’s name; their case number; and their attorney’s address. It had blanks
for the Boyds to complete explaining how they were aggrieved, the facts of their case,
and what relief they were requesting from the MIA.
The Boyds did not request a hearing.
C. The Circuit Court Proceedings
Meanwhile, on March 29, 2018, just two weeks after the Boyds filed their MIA
complaint, they filed a “Complaint for Declaratory Judgment” in the circuit court against
GGG and State Farm. They sought a declaration that GGG was “contractually obliged to
endorse settlement drafts issued by State Farm” for personal property losses and
landscaping damage, in exchange for the Boyds’ payment of the 6 percent commission on
those amounts; that the Boyds had a “lawful basis” to terminate the contract with GGG;
that the termination did not require GGG’s written consent; that State Farm must
acknowledge the termination of the contract; and that all future insurance payments must
be made directly to the Boyds.
Because the Boyds sought only declaratory relief, the matter was designated
“Track 0” in the circuit court’s differentiated case management plan. Consequently, no
scheduling order was issued, and it was set for trial on December 12, 2018.
9
COMAR 31.02.01.03 pertains to all requests for hearings “except a request for a
hearing on a proposed examination report.”
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About a week after the letter decision in the MIA Action, GGG filed an amended
answer in which it asserted collateral estoppel, “claim and issue preclusion,” and failure
to exhaust administrative remedies as affirmative defenses. GGG maintained that the
matter must be “stayed or dismissed” as a result of the MIA Case. It attached Beatty’s
letter and the MIA Complaint, with exhibits, to its amended answer.
GGG subsequently moved to stay or dismiss the circuit court case based upon
Beatty’s letter. It argued that the final adjudication in the administrative proceeding
would be binding upon the parties and, thus, the circuit court case should be stayed until
the MIA Action was finally decided. It further maintained that the administrative remedy
was “primary” and, consequently, that the Boyds were obligated to exhaust that remedy
before resorting to the circuit court.
The Boyds also moved to stay the circuit court action. They asserted that they
would be requesting a hearing in the MIA Action before the Office of Administrative
Hearings (“OAH”) pursuant to Ins. § 2-210 and COMAR 31.02.01 and that because the
hearing would be scheduled after the trial in the circuit court action, a stay was
appropriate to permit the administrative proceeding to conclude prior to the trial in the
circuit court. The Boyds asked the court not to stay discovery, however.
Both motions to stay were denied.
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On November 26, 2018, the circuit court postponed the trial date until April 17,
2019.10
Over three months before trial, on January 7, 2019, the Boyds filed an amended
complaint. They added 108 general factual allegations and four new counts. In Count I,
they asserted that GGG breached its contract by failing to exercise reasonable diligence
and due care in adjusting the Boyds’ claim with State Farm and sought $417,504.37 in
damages.11 Count II requested the same declaratory relief as in the original complaint.
Count III asserted a claim for restitution of the commission payments made to GGG,
totaling $60,150.21, on the ground that there was no consideration supporting the
contract given that State Farm already had agreed to pay the Boyds’ policy limits under
Coverage A. Count IV asserted a claim for negligence, premised upon statutory duties set
forth in Ins. § 10-410(a), seeking the same damages as for breach of contract. Count V
asserted a claim for fraud, alleging that Forrest, as agent for GGG, made willfully false
representations to the Boyds relative to the potential coverage for the damaged deck and
10
The trial date was continued on a motion filed by GGG on November 1, 2018,
due to a scheduling conflict for its counsel.
11
That amount comprised six categories of damages: 1) $112,344 for the value of
the deck; 2) $3,771.09 for the six percent fee paid on an allegedly “inflated demolition
estimate”; 3) $48,651.58 representing the difference between the amount charged by
GGG’s sister company for demolition and the actual cost of demolition; 4) $6,106.10
representing the difference between the amount charged for debris removal and the
amount covered under the Boyds’ Policy; 5) $57,480 for four months of lease payments
for alternative housing and moving expenses; and 6) $189,151.60 for loss of “Option ID
Inflation Coverage” occasioned by GGG’s delays.
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the cost of demolition. The Boyds sought $106,237.78 in compensatory damages and
$300,000 in punitive damages under that count.
On January 23, 2019, GGG moved to strike the amendments to the complaint and
for summary judgment. In its motion to strike, GGG asserted that it was prejudiced by the
late amendments because there was insufficient time before trial to complete discovery
on the new claims and because the Boyds now sought more than half a million dollars in
damages, whereas the original complaint sought only declaratory relief. Further, because
the Boyds had elected not to appeal from the letter determination issued by Beatty, GGG
maintained that that decision was final and binding upon them, precluding the relitigation
of the same claims asserted in the MIA Action.
In its motion for summary judgment,12 GGG asserted that all the facts alleged in
the amended complaint were substantively identical to those alleged in the MIA
complaint and that the MIA finally determined that GGG had not violated the Insurance
Article by its handling of the Boyds’ claim. Citing Garrity v. Maryland State Board of
Plumbing, 447 Md. 359 (2016), GGG argued that the Boyds were collaterally estopped
from pursuing any of their claims in the circuit court.
The Boyds opposed the motions.
The court held a hearing on the motions on April 8, 2019 and ruled from the
bench, granting both motions. The court reasoned that though the Boyds had not been
12
GGG subsequently filed a second motion for summary judgment addressed to
the merits of each claim in the amended complaint. As we shall discuss, however, the
circuit court granted summary judgment solely on the ground of collateral estoppel.
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afforded a full administrative hearing before the MIA, because it was their choice not to
request a hearing, they had been afforded “every opportunity to pursue their claims”
administratively and were estopped from doing so in the circuit court. On the motion to
strike, the court ruled that because “no new facts [were] developed in the amended
complaint” and the Boyds waited until just 3 months before trial to add four counts and
damages claims, GGG was prejudiced by the Boyds’ late amendments. The court entered
an order to that effect on April 10, 2019.
Within ten days, the Boyds moved for reconsideration of the grant of the motion to
strike and to alter or amend the judgment.
The court held a hearing on the post-judgment motions and denied them. It
amplified its earlier reasoning, emphasizing that Beatty made factual findings in his letter
and that the Boyds were bound by those findings in light of their decision not to request
an administrative hearing. It further reiterated its ruling that GGG was prejudiced by the
Boyds’ undue delay in amending their complaint. This timely appeal followed.
We shall include additional facts as necessary to our resolution of the issues.
DISCUSSION
I.
Motion for Summary Judgment
Pursuant to Maryland Rule 2-501, a trial court may grant summary judgment when
there is no genuine dispute of material fact and a party is entitled to judgment as a matter
of law. “Whether a circuit court’s grant of summary judgment is proper in a particular
case is a question of law, subject to a non-deferential review on appeal.” Tyler v. City of
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College Park, 415 Md. 475, 498 (2010) (citations omitted). Thus, in assessing the
propriety of the grant of summary judgment, we consider whether “the trial court’s legal
conclusions were legally correct.” Messing v. Bank of Am., N.A., 373 Md. 672, 684
(2003) (citations omitted).
The Boyds contend that the circuit court legally erred in ruling that their claims in
the circuit court action were barred by collateral estoppel or related principles of failure
to exhaust administrative remedies. Their primary position is that Beatty did not
investigate an administrative complaint for the MIA, but rather conducted an
“examination” of a public adjuster pursuant to Ins. § 2-206(1). They maintain that, in his
capacity as an examiner, Beatty did not act in a quasi-judicial manner; that his letter was
not a decision, but a “proposed examination report”; and that despite the representation in
the letter that the Boyds had a right to a hearing to contest Beatty’s determination that
GGG did not violate the Insurance Article, they were not in fact entitled to a hearing.
Rather, the Boyds assert that only GGG was entitled to a hearing had it been aggrieved
by Beatty’s proposed examination report.
GGG responds that the argument that Beatty’s letter was a proposed examination
report from which the Boyds were not entitled to appeal is without merit and, in any
event, is waived because it was not advanced in the circuit court. It maintains that the
circuit court correctly ruled that the Boyds were collaterally estopped from pursuing their
claims in the circuit court because they elected to pursue claims premised on the same
core facts before the MIA, which rendered a decision adverse to them that became final
when they did not administratively appeal within 30 days. Further, GGG argues that the
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administrative remedy was primary and, thus, that the Boyds were obligated to exhaust
that remedy before pursuing a civil action.
a.
We begin by assessing the nature of the MIA Action and the Boyds’
administrative rights and remedies. The Commissioner is empowered to enforce the
Insurance Article by, among other things, imposing “any penalty or remedy authorized by
[the] article, against a person that is under investigation for or charged with a violation of
[the] article[.]” Ins. § 2-201(e). The Commissioner is authorized to conduct any
investigation “necessary to fulfill the purposes of [the] article” even if not “expressly
authorized.” Ins. § 2-108. In conducting an investigation, examination, or hearing, the
Commissioner, deputy Commissioner, or an examiner authorized by the Commissioner
may administer oaths, examine persons, and issue subpoenas compelling witnesses to
appear and testify or produce documents. Ins. § 2-203.
Public adjusters are regulated under Title 10, Subtitle 4 of the Insurance Article.13
A public adjuster must be licensed to offer services in Maryland. Ins. § 10-403(a).
Section 10-410 governs the suspension or revocation of the license of a public adjuster.
As pertinent, the Commissioner may suspend or revoke a public adjuster’s license “after
notice and opportunity for a hearing under [Ins.] §§ 2-210 through 2-214 . . . if . . . the
licensee” violates the Insurance Article, “engage[s] in fraudulent or dishonest practices,”
13
In 2017, after the Boyds entered into their contract with GGG, the legislature
significantly amended and expanded Title 10, Subtitle 4. See 2017 Md. Laws, ch. 106 § 1
(effective Jan. 1, 2018).
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“demonstrate[s] incompetency or untrustworthiness,” “misappropriate[s], convert[s], or
unlawfully with[holds] money,” or “fail[s] or refuse[s] to pay on demand money that
belongs to an . . . insured[.]” Ins. § 10-410(a). In addition to suspension or revocation of a
license, the Commissioner is empowered to impose a penalty of between $100 and $500
for each violation of the Insurance Article and to order the public adjuster to pay
“restitution to any citizen who has suffered financial injury because of the violation of
[the] article.” Ins. § 10-410(c) & (d).
Section 2-206 governs “examinations” of insurance brokers, agents, and public
adjusters. It authorizes the Commissioner to “examine the accounts, records, documents,
and transactions that relate to the insurance affairs or proposed insurance affairs” of those
persons or entities whenever “advisable to determine compliance” with the Insurance
Article. Ins. § 2-206. An examination is conducted at the place of business of the person
or entity being examined or the “place where records of the person are kept.” Ins. § 2-
207(a)(2). The person being examined must make available to the examiner “the
accounts, records, documents, files, information, assets, and matters that are in the
possession or control of the person and relate to the subject of the examination” and assist
with the examination to “the extent reasonably possible.” Ins. § 2-207(b). At the
conclusion of an examination, the examiner prepares a proposed examination report,
which contains “facts” ascertained from “the books, records, or documents of the person
being examined; or . . . determined from statements of individuals about the person’s
affairs.” Ins. § 2-209(b). The proposed examination report must be served on the person
examined and if, within 30 days thereafter, that person requests a hearing, the
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Commissioner shall grant the request. Ins. § 2-209(c). The proposed examination report
may not be adopted until the hearing has been held. Id. After an examination report is
adopted by the Commissioner, it may be admitted in evidence in any action brought by
the Commissioner against an individual. Ins. § 2-209(d).
Ins. § 2-210 pertains to hearings. The Commissioner “may hold hearings” that he
or she “considers necessary for any purpose under [the] article” and “shall hold a
hearing” required by the article or “on written demand by a person aggrieved by any act
of, threatened act of, or failure to act by the Commissioner or by any report, regulation, or
order of the Commissioner, except an order to hold a hearing or an order resulting from a
hearing.” Ins. § 2-210(a). Hearings are governed by the contested case provisions of the
Administrative Procedure Act. Ins. § 2-210(c). In holding a hearing under Title 2,
Subtitle 2, the Commissioner “sits in a quasi-judicial capacity.” Ins. § 2-214(a).
Following a hearing, the Commissioner shall issue an order setting forth a concise
statement of the facts found, the conclusions drawn from those facts, and setting forth the
effective date, purpose, the grounds for the Commissioner’s action, and the provisions of
the article upon which he or she relied. Ins. §§ 2-214(c) & 2-204(b). As pertinent, a party
aggrieved by “an order resulting from a hearing or a refusal to hold a hearing” may
petition for judicial review in the circuit court. Ins. § 2-215.
The Commissioner has adopted regulations to carry out the article which appear at
Title 31 of the Code of Maryland Regulations (COMAR). See Ins. § 2-109(a)
(authorizing the Commissioner to adopt regulations). The definitions in Subtitle 2,
pertaining to “Powers and Duties – Hearings,” are pertinent to our analysis. An
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“Administrative complaint” includes “a document that . . . [i]s received by the
Commissioner from any person” that “[a]lleges a violation of . . . [a] law or regulation
enforced by the Commissioner[.]” COMAR § 31.02.01.02.B(2). A contested case is
defined to include a proceeding “[a]rising out of a determination made by the
Commissioner,” “[r]egarding a license . . .,” “on a proposed examination report,” or
“arising out of any other act of, threatened act of, or failure to act by the Commissioner
that aggrieves a person.” COMAR § 31.02.01.02.B(3). A “Determination” means “a
decision by the Commissioner that requires [him or her] to provide the opportunity for a
hearing to a person aggrieved by the decision . . . [pursuant to Ins.] § 2-210[.]” COMAR
§ 31.02.01.02.B(4)(a). It includes “[a] decision as to whether a person against whom an
administrative complaint has been received violated a law, regulation, or order[.]”
COMAR § 31.02.01.02.B(4)(b)(i). An “Examination Report” is defined to include “a
report of the examination of . . . [a] public adjuster[.]” COMAR § 31.02.01.02.B(5)(a)(ii).
A “[p]roposed examination report” is the report mailed “to the person examined . . . [a]t
the conclusion of an examination” that “informs the person being examined of the
person’s right to request a hearing pursuant to Regulation .04C[.]” COMAR
31.02.01.02.B(9).
COMAR § 31.02.01.03 “applies to all requests for a hearing except a request for a
hearing on a proposed examination report.” As mentioned, a copy of this regulation was
appended to Beatty’s letter to the Boyds. A request made under this regulation must be
received by the Commissioner “within 30 days of the date of the letter notifying the party
of the Commissioner’s action, intention to act, or failure to act.” COMAR
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31.02.01.03.C(1). The request must specify the “action or non-action of the
Commissioner causing the person requesting the hearing to be aggrieved[.]” COMAR
31.02.01.03.D(1).
COMAR § 31.02.01.04 governs requests for hearings on proposed examination
reports. A proposed examination report must be mailed to the “person that was
examined” 30 days before the proposed report is filed and must advise the person
examined if the Commissioner “intends to impose a fine or other penalty or require
restitution or other remedy as a result of the findings of the proposed examination
report[.]” COMAR § 31.02.01.04.B. The person examined may, within 30 days of receipt
of the proposed examination report, request a hearing. COMAR § 31.02.01.04.C.
In either case, once a hearing is scheduled, the parties are entitled to limited
discovery by filing requests for production and by subpoenaing witnesses. COMAR §§
31.02.01.05-1 & .06.
b.
We discern from the statutes and regulations set out above that the MIA Action
was initiated by the Boyds’ filing of an administrative complaint; that it was not an
examination; that Beatty’s letter was an MIA “Determination”; and that the Boyds, as
parties aggrieved by that determination, were entitled to a contested case hearing, had
they elected to request one. We explain.
An examination is like an audit. It may be initiated by the Commissioner to
determine general compliance with the Insurance Article or specific provisions of it. It is
conducted at the place of business of the person to be examined and the findings resulting
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from the examination are served upon the person examined, who is entitled to an
exceptions hearing, upon request, before the proposed examination report may be
adopted.
In contrast to that procedure, here the Boyds filed a complaint using a complaint
form available on the MIA’s website. They identified a specific claim that GGG allegedly
mishandled. In response to their complaint, Beatty, who identified himself as an
“Insurance Investigator,” not an examiner, advised GGG that a complaint had been made
against them and that he was charged with investigating that complaint, and directed
them to provide him with the Boyds’ claim file and any related documents and
correspondence. He did not come to GGG’s place of business to examine its records and
accounts and he did not seek records outside of the scope of the Boyds’ complaint.14
Further, at the end of Beatty’s investigation, he served his letter summarizing his findings
and conclusions upon the Boyds, not upon GGG.
Beatty’s letter to the Boyds’ counsel was “[a] decision as to whether a person
against whom an administrative complaint has been received violated a law, regulation,
or order[.]” COMAR 31.02.01.02.B(4). It follows that to the extent the Boyds were
aggrieved by that decision, they were entitled to a hearing upon their request. COMAR
31.02.01.02.B(4); Ins. § 2-210(a)(2). This was consistent with Beatty’s letter, which
advised them that they could request a hearing within 30 days of their receipt of his letter
14
We do not mean to suggest that an examination never could result from an
administrative complaint, but only that that was not what occurred here.
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and attached a copy of COMAR 31.02.01.03, which is the regulation governing hearing
requests generally, not hearing requests in response to a proposed examination report.
c.
We now turn to the impact, if any, that the Boyds’ decision to pursue an
administrative complaint, but not to request a hearing after the MIA’s preliminary
decision, had upon their right to pursue their judicial action in the circuit court. GGG
maintains that the Boyds were collaterally estopped by the MIA decision from relitigating
the same issues in the circuit court or, in the alternative, that by their decision not to
request a contested case hearing, they failed to exhaust their administrative remedies. We
conclude that the MIA decision was not the product of a quasi-judicial proceeding and,
consequently, the Boyds were not collaterally estopped by it. Further, we conclude that
the administrative remedy was neither exclusive nor primary but was fully concurrent
with the judicial remedy. Thus, the Boyds were not obligated to exhaust administrative
remedies to pursue their judicial action. Thus, we shall reverse the circuit court’s grant of
GGG’s motion for summary judgment.
In Batson v. Shiflett, 325 Md. 684, 705 (1992), the Court of Appeals held that the
decision of an administrative agency may have preclusive effect if the agency decision
was the product of a quasi-judicial proceeding. The Court adopted the three-part test set
out by the United States Court of Appeals for the Ninth Circuit in Exxon Corp. v.
Fischer, 807 F.2d 842, 845-46 (9th Cir. 1987), for preclusive effect of agency decisions.
That test provides that an agency decision can have preclusive effect if: (1)
the agency acted in a judicial capacity; (2) the issue presented to the fact
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finder in the second proceeding was fully litigated before the agency; and
(3) resolution of the issue was necessary to the agency’s decision.
Garrity, 447 Md. at 380 (citing Batson, 325 Md. at 701). If the test is satisfied, “agency
findings made in the course of proceedings that are judicial in nature should be given the
same preclusive effect as findings made by a court.” Batson, 325 Md. at 702.
Applying that test, GGG asserts that the MIA “convened a ‘contested hearing’, in
which the Boyds were called upon to prove their assertions and GG[G] was called upon
to contest those assertions.” Ins. § 2-214(a) makes plain, however, that the Commissioner
acts in a quasi-judicial manner when holding a hearing pursuant to Ins. § 2-210. As
discussed, though the Boyds were entitled to a hearing under Ins. § 2-210 following the
MIA’s determination that GGG had not violated the Insurance Article by its handling of
their claim, a hearing as that term is used in the Insurance Article had not yet occurred.
See COMAR 31.02.01.02.B(4) (defining “Determination” to mean “a decision by the
Commissioner that requires the Commissioner to provide the opportunity for a hearing to
a person aggrieved by the decision under Insurance Article §2-210”) (emphasis added).
Likewise, the administrative complaint submitted by the Boyds, though contested by
GGG, did not become a “contested case” until the determination was made that aggrieved
either the Boyds or GGG. See COMAR 31.02.01.02.B(3) (defining “Contested Case” to
include a proceeding “[a]rising out of a determination made by the Commissioner” or
“any other act of, threatened act of, or failure to act by the Commissioner that aggrieves a
person”) (emphasis added). Because the Insurance Article specifies when the
Commissioner acts in a quasi-judicial manner and that the investigation of an
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administrative complaint precedes the exercise of those powers, we conclude that the
investigation of the Boyds’ complaint resulting in the preliminary agency decision was
not a quasi-judicial proceeding.
Our conclusion is bolstered by the fact the Boyds did not participate in an
adversarial hearing prior to the decision. GGG’s analogy to Garrity in this regard is
misplaced. In that case, the Court of Appeals held that the Consumer Protection
Division’s (“CPD”) final decision that a plumber violated the Consumer Protection Act,
imposing fines, and ordering him to pay restitution, had preclusive effect in a second
administrative proceeding brought against the same plumber by his licensing board to
revoke his license and impose additional penalties. There, the CPD’s decision had
followed a two-day administrative hearing before an Administrative Law Judge at the
Office of Administrative Hearings. In this case, in contrast, there was no oral hearing;
none of the parties testified, called witnesses, or cross-examined adverse parties; and
Beatty did not make credibility determinations in assessing the parties’ competing
positions.
GGG nevertheless maintains, citing Alitalia Linee Aeree Italiane v. Tornillo, 320
Md. 192 (1990),15 that Beatty conducted a “paper hearing.” Even if the investigation may
15
In Alitalia, 320 Md. at 192, the Court of Appeals considered whether a motion
for rehearing filed by an employer before the Workers Compensation Commission must
have been preceded by an oral, adversarial hearing to be effective. The employee,
Tornillo, had filed a claim form alleging that he suffered an accidental injury arising out
of his employment. Alitalia did not request a hearing within the requisite time and the
Commission made an award based upon the evidence in the record, i.e., the claim form.
Thereafter, Alitalia moved to strike the award and/or for a rehearing. The Commission
(continued…)
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have amounted to a “paper hearing” as that term has been defined in our case law and
satisfied the Boyds’ and GGG’s due process rights at that preliminary stage of the agency
review, it does not follow that it was a quasi-judicial proceeding for purposes of collateral
estoppel. For the reasons already discussed, we conclude that it was not. Given this
conclusion, the three-part Exxon test is not satisfied here, and collateral estoppel does not
apply. Consequently, we need not assess whether the the issues presented by the Boyds in
the circuit court action were “fully litigated before the [MIA]” or whether “resolution of
th[ose] issues was necessary to the [MIA’s] decision.” Garrity, 447 Md. at 380.
d.
We turn to the alternative basis offered by GGG for affirmance of the grant of
summary judgment: that the Boyds were obligated to exhaust administrative remedies
before pursuing relief in the circuit court. “Whenever the Legislature provides an
administrative and judicial review remedy for a particular matter or matters, the
(…continued)
denied the motion. On judicial review, Tornillo argued that the petition was untimely
because it was filed more than thirty days after the award of compensation and that the
petition for rehearing had not tolled the time to appeal because no hearing ever had been
held. The circuit court agreed and entered judgment in favor of Tornillo. This Court
affirmed that judgment.
In the Court of Appeals, it characterized the issue before it as “whether the word
‘hearing’ must be strictly limited to a proceeding at which counsel or parties in fact are
heard – or at least have the opportunity to be heard: i.e., to present evidence and to make
oral presentations to the tribunal.” Id. at 197. It reasoned that the history of the Worker’s
Compensation statute at issue supported the view that a motion for rehearing operated
like a motion for reconsideration. The Court further opined: “No violence is done to the
meaning of ‘hearing’ by reading it as extending to something other than an oral
presentation before the tribunal. We have recognized the concept of a ‘paper hearing.’”
Id. at 199 (citing Phillips v. Venker, 316 Md. 212, 218, 221-222 (1989) (additional
citations omitted)).
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relationship between that administrative remedy and a possible alternative judicial
remedy will ordinarily fall into one of three categories.” Zappone v. Liberty Life Ins. Co.,
349 Md. 45, 60 (1998).
First, the administrative remedy may be exclusive, thus precluding
any resort to an alternative remedy. Under this scenario, there simply is no
alternative cause of action for matters covered by the statutory
administrative remedy.
Second, the administrative remedy may be primary but not
exclusive. In this situation, a claimant must invoke and exhaust the
administrative remedy, and seek judicial review of an adverse
administrative decision, before a court can properly adjudicate the merits of
the alternative judicial remedy.
Third, the administrative remedy and the alternative judicial remedy
may be fully concurrent, with neither remedy being primary, and the
plaintiff at his or her option may pursue the judicial remedy without the
necessity of invoking and exhausting the administrative remedy.
Id. at 60-61 (citations omitted) (emphasis in original).
“Whether a plaintiff must exhaust administrative remedies prior to bringing suit is
a legal issue which [we] review[] de novo.” United Ins. Co. of Am. v. Md. Ins. Admin.,
450 Md. 1, 14 (2016). We determine whether an administrative remedy is exclusive,
primary, or concurrent by assessing the legislative intent. Zappone, 349 Md. at 61. If the
legislature expressly states that an administrative remedy is intended to be exclusive,
primary, or concurrent, then a reviewing court need not examine other factors to discern
the legislature’s intent. Id. On the other hand, “[i]n the absence of specific statutory
language indicating the type of administrative remedy, there is a rebuttable presumption
that an administrative remedy was intended to be primary. Thus, ‘a claimant cannot
maintain the alternative judicial action without first invoking and exhausting the
administrative remedy.’” United Ins., 450 Md. at 15 (citing Zappone, 349 Md. at 63).
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GGG does not contend that the MIA’s jurisdiction was exclusive but argues that
the MIA’s jurisdiction was primary and, thus, the Boyds, were obligated to pursue that
forum to “a hearing or a final decision” before pursuing judicial relief. The Boyds
respond that the circuit court’s jurisdiction was fully concurrent with the MIA’s
jurisdiction with respect to their claims. In any event, to the extent they were required to
exhaust administrative remedies, they did so by pursuing an MIA complaint but then
“electing not to pursue a hearing before the OAH[,]” thereby “terminat[ing] the
administrative process” and rendering Beatty’s letter determination final with respect to
their administrative remedies.
Title 10, Subtitle 4 of the Insurance Article does not express a legislative intent to
grant the MIA exclusive jurisdiction over a complaint against a public adjuster for breach
of contract, negligence, fraud, and related claims. We thus turn to whether the
presumption that the MIA had primary jurisdiction over those claims was rebutted here.
In Zappone, the Court of Appeals held that the presumption of primary jurisdiction
was rebutted in a judicial action brought by an insured against an insurer and an
insurance agent for alleged acts of fraud, negligent misrepresentation, and negligence.
349 Md. at 50. Those claims arose from allegations that Liberty Life and its agents had
misrepresented the benefits and the tax consequences of a life insurance policy that
Zappone purchased. On appeal from the dismissal of Zappone’s judicial action for failure
to exhaust administrative remedies, the Court of Appeals rejected the argument that
Zappone was obligated first to exhaust his remedies under the Unfair Trade Practices title
of the Insurance Article.
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In so holding, the Court explained that four factors were germane to the
determination of whether the presumption of a primary remedy has been rebutted: 1) “the
comprehensiveness of the administrative remedy”; 2) “the administrative agency’s view
of its own jurisdiction”; 3) the claim’s “dependen[ce] upon the statutory scheme which
also contains the administrative remedy”; and 4) the claim’s dependence “upon the
expertise of the administrative agency.” Id. at 64-65. It concluded that all four factors
weighed against the MIA having primary jurisdiction. The Court reasoned that Zappone
set forth “recognized common law causes of action” that were “wholly independent of
the Insurance Code’s Unfair Trade Practices subtitle.” Id. at 67. The Insurance
Commissioner, who had filed an amicus brief supporting Zappone’s position, did not
view its jurisdiction to be primary. Id. at 67-68. Further, the Unfair Trade Practices title
expressly stated that an order issued by the Commissioner under the title did not relieve
an insurer of other liability, reflecting an intent to permit alternative judicial relief.
The Court reached a similar result in Mardirossian v. Paul Revere Life Insurance
Co., 376 Md. 640 (2003). Mardirossian, like the Boyds here, initially filed an
administrative complaint against Paul Revere, alleging that it had wrongfully failed to
issue a disability insurance policy to him, based upon an oral contract to issue that policy.
The MIA investigator charged with investigating his complaint consulted with the MIA’s
chief enforcement officer, who determined that the complaint should not be pursued
because it would be inappropriate to hold an insurance company responsible for not
issuing a disability policy based upon an agent’s representation to a broker. The
investigator advised Mardirossian of this “preliminary finding” and Mardirossian “did not
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pursue the administrative complaint to a higher level within the MIA.” Id. at 645. In a
footnote, the Court emphasized that Mardirossian was entitled to an adversarial hearing
to contest the MIA investigator’s preliminary finding not to pursue his complaint. Id. at
645, n.2.
Mardirossian then filed a complaint in the circuit court seeking specific
performance of the oral contract. That case was removed to the United States District
Court for the District of Maryland, which ruled that the administrative remedies were
exclusive and primary and Mardirossian was obligated to exhaust them before pursuing
the specific performance claim. On appeal, the Fourth Circuit Court of Appeals vacated
that judgment and remanded to the district court with instructions to certify the issue of
whether the Insurance Article created a primary administrative remedy, supplanting
Maryland’s common law contract remedy, to the Court of Appeals.
In deciding that certified question, the Court of Appeals, relying on Zappone,
reasoned that an action for specific performance to enforce an oral contract for insurance
was well-established in Maryland law and that the Unfair and Deceptive Trade Practices
subtitle of the Insurance Code did not evidence an intent to supplant that remedy. It
concluded that the legislature “did not intend that the Insurance Commissioner’s
authority, to restrain unfair practices [would] modif[y] Maryland[’s] common law
contract enforceability principles.” Id. at 649. The Court determined that the remedies
available under the Insurance Code were neither exclusive nor primary and that the
“common law contract remedy [was] fully concurrent, and may be pursued in court
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without exhausting the administrative remedy[.]” Id. Of significance, Mardirossian, like
the Boyds, elected not to appeal from the MIA’s adverse finding against him.
Conversely, in cases involving claims that arise out of violations of the Insurance
Article, the Court of Appeals has held that the administrative remedy is primary and must
be exhausted before adjudication of a judicial action. In Carter v. Huntington Title &
Escrow, LLC, 420 Md. 605, 609 (2011), Maurice Carter filed in the circuit court a
putative class action suit on behalf of himself and similarly situated persons, claiming
that a title insurer overcharged them on title insurance during loan refinance transactions
in violation of the Unfair Trade Practices Title of the Insurance Article. He also asserted
claims for “money had and received” and for “negligent misrepresentation.” Id. at 610-
11. In support of his claims, Carter relied upon provisions of the Insurance Article
requiring title insurers to file their rates with the MIA and not deviate from those rates
once approved. Id. at 611. The title insurer moved to dismiss the complaint, arguing that
the MIA had primary jurisdiction over Carter’s claims. The circuit court granted the
motion to dismiss and Carter’s appeal from that ruling reached the Court of Appeals.
Distinguishing Zappone and Mardirossian, the Court observed that in those cases,
the “behavior of the defendants violated the Insurance Article” but the “consumers
possessed a ‘recognized independent tort remedy’ and a ‘common law contract remedy,’
respectively, and therefore could seek relief outside the administrative regulatory
scheme.” Id. at 626. In contrast, Carter’s claims alleged “purely statutory violations.” Id.Analysis of the four factors enunciated in Zappone weighed in favor of the
primacy of the administrative remedy. The Insurance Article reflected a legislative intent
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to create a “comprehensive, if not complex, regulatory and remedial scheme[.]” Id. at
627. The Court framed the question as whether that scheme was “sufficiently
comprehensive” to reflect an intent for a claim like Carter’s to proceed first
administratively. Id. Given that Carter’s claims alleged and “depend[ed] on a statutory
benchmark violation,” though recast as common law claims, the Court concluded that it
did. Id. at 628. Under the second factor, the Court pointed out that in another case
involving a violation of a statutory obligation under the Insurance Article, the Insurance
Commissioner had filed an amicus brief taking the position that the MIA had primary
jurisdiction. Under the third factor, the Court reasoned that Carter’s claims would not
exist “without an essential underpinning found in the Insurance Article.” Id. at 630. The
fourth factor did not weigh strongly either way. Overall, the Court held that primary
jurisdiction vested with the MIA and that Carter was obligated to first exhaust his
administrative remedies.
Likewise, in United Insurance, the Court held that an insurer was obligated to
exhaust its right to an administrative hearing under Ins. § 2-210 before it could seek
declaratory relief in the circuit court against the MIA to challenge the Commissioner’s
stated intent to give retroactive effect to a newly enacted statute governing life insurance
policies. Citing Carter, the Court emphasized the overall breadth of the Insurance
Article’s remedial scheme and, specifically, that United Insurance’s claim for declaratory
relief turned upon the Commissioner’s interpretation and application of a statute it was
tasked with enforcing. 450 Md. at 17-18. It emphasized that the MIA, which had
successfully moved to dismiss the declaratory judgment action in the circuit court, clearly
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viewed its jurisdiction over the claim as primary. Id. at 22. Under the third Zappone
factor, the Court held that the insurer’s claims were dependent upon the statutory scheme
because the enactment of the statute and the Commissioner’s threat to enforce the statute
retroactively formed the basis for claim for declaratory relief. Finally, it was appropriate
to accord deference to the MIA, in the first instance, to pass upon the issue of retroactive
application of the statute. Id. at 27.
We return to the instant case. As in Zappone and Mardirossian, assessment of the
relevant factors weighs in favor of concurrent jurisdiction over the Boyds’ claims.
Though the Unfair Trade Practices title of the Insurance Article creates a comprehensive
remedial scheme, the regulation of a public adjuster under Title 10, Subtitle 4 in effect at
the time of the acts giving rise to the Boyds’ complaint was much more limited in
scope.16 It regulated the licensure of a public adjuster and granted the Commissioner
discretion to award restitution for financial harm. The MIA has not participated in this
case and, thus, we cannot gauge its view of its jurisdiction under these facts. Of great
16
As noted earlier, after the contract and the events in this case giving rise to the
Boyds’ claims against GGG, the legislature amended and expanded Title 10, Subtitle 4.
See 2017 Md. Laws, ch. 106 § 1 (effective Jan. 1, 2018). Section 10-411 now prescribes
the form of a contract for public adjuster services. Section 10-412 requires public
adjusters to deposit funds held on behalf of an insured in a non-interest-bearing escrow or
trust account. Section 10-413 obligates a public adjuster to maintain certain records.
Section 10-414 sets out the standards of conduct and obligations of a public adjuster.
Section 10-415 sets forth a public adjuster’s ethical obligations. Section 10-416 requires a
public adjuster to report to the Commissioner any final administrative action taken
against it in another jurisdiction. We express no opinion as to whether those statutes,
which do not apply here, might evince an intent to create a primary or exclusive
administrative remedy in future cases.
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significance, the counts in the Boyds’ amended complaint against GGG allege traditional
common law claims for breach of contract, fraud, and negligence that are almost entirely
independent of any violation of the Insurance Article.17 The Boyds’ count in which
restitution is claimed for the commission charged by GGG rests upon an alleged lack of
consideration, not upon a statutory violation. The Boyds’ declaratory judgment count
seeking a declaration that they have a right to terminate the contract also does not depend
upon interpretation of any provision of the Insurance Article, but upon construction of the
Boyds’ contract with GGG. For these reasons, we conclude that, as Zappone and
Mardirossian, Title 10, Subtitle 4 of the Insurance Article does not reflect an intent to
supplant the common law remedies for breach of contract, fraud, negligence, the
equitable remedy of restitution, or the statutory relief available under the declaratory
judgment act, by regulating the licensure of public adjusters.
Further, as in Mardirossian, the Boyds’ decision not to pursue a contested case
hearing to challenge the preliminary determination against them did not preclude them
from pursuing alternative judicial relief. See also Thompson v. State Farm Mutual
Automobile Insurance Co., 196 Md. App. 235, 248 (2010) (reasoning that a party who
pursues an administrative complaint before the MIA and receives an adverse preliminary
decision after a paper hearing, but elects not to request a contested case hearing before
the OAH, may not then seek judicial review of that decision, but may pursue an
17
The Boyds make one reference to the Insurance Article in the amended
complaint. In their negligence count, they allege that GGG’s duty of care arose under Ins.
§ 10-410(a)(4), (5) and (9).
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independent action before the circuit court, assuming that independent statutory, common
law, or equitable remedies exist). Rather, by electing not to pursue that hearing, the
Boyds terminated their concurrent administrative proceeding in favor of their judicial
proceeding. This was their prerogative.
We recognize that there is an asymmetry to GGG in this result. Had the MIA’s
preliminary decision been favorable to the Boyds, GGG could have faced suspension or
revocation of its license, fines, and/or an order to pay restitution. Thus, GGG would have
been obligated to request a contested case hearing to avoid those adverse outcomes.
Given that the MIA regulates insurers and insurance professionals, not insureds, and the
fact that the MIA could not have given full relief to the Boyds, even if warranted, our
construction of the administrative scheme is not unreasonable or unfair.
II.
Motion to Strike Amended Complaint
Given our resolution of the first issue, we conclude that the court erred in granting
the motion to strike the amended complaint for the reason given. The court’s reasoning in
ruling on the motion to strike was intertwined with the ruling on summary judgment. It
emphasized in granting that motion that GGG was prejudiced by the Boyds’ decision to
pursue two avenues for relief simultaneously and that striking the amendments was not
unfair to the Boyds because they had been given an opportunity to litigate their claims
before the MIA but elected not to pursue a hearing. As already explained, however, the
Boyds were permitted to pursue both their administrative and judicial remedies and to
terminate their administrative complaint in favor of the pending judicial action. Any
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prejudice to GGG occasioned by the timing of the amendments to the complaint relative
to the then scheduled trial date are moot given that on remand, a new trial date will be
scheduled.
JUDGMENT OF THE CIRCUIT
COURT FOR MONTGOMERY
COUNTY REVERSED. COSTS TO
BE PAID BY APPELLEE.
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