Paul T. Billiard v. Allan L. McVey, Insurance Commissioner, State of West Virginia ( 2022 )

FILED
October 17, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Paul T. Billiard,
Petitioner Below, Petitioner
vs.) No. 21-0802 (Kanawha County 20-AA-64)
Allan L. McVey, Insurance Commissioner, 1
State of West Virginia
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Paul T. Billiard appeals the Circuit Court of Kanawha County’s September 2,
2021, order affirming the June 18, 2020, order from the Office of the Insurance Commissioner
(“the Commissioner”) revoking petitioner’s insurance producer license, imposing a monetary
penalty, and ordering that petitioner pay the costs of the proceedings. 2 The Commissioner’s order
was based on his application of West Virginia Code § 33-12-24(b)(8) and (9) to find that petitioner
committed fraud when he pursued claims against two different insurance policies for damages
arising from the same occurrence.
This is an administrative appeal, and our review is governed by the same statutory standard
applied to the circuit court’s consideration of this matter. As we explained in Syllabus Point one
of Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996):
On appeal of an administrative order from a circuit court, this Court is bound by
the statutory standards contained in W. Va. Code § 29A-5-4(a) and reviews
questions of law presented de novo; findings of fact by the administrative officer
are accorded deference unless the reviewing court believes the findings to be clearly
wrong.
1
Insurance Commissioner Allan L. McVey replaced the former commissioner as the
named party. See W. Va. R.A.P. 41(c) (“When a public officer . . . ceases to hold office, the action
does not abate and the public officer’s successor is automatically substituted as a party. . . .”).
2
Petitioner is represented by Elgine Heceta McArdle, and respondent is represented by
Jeffrey C. Black.
1
Petitioner’s first assignment of error is that the circuit court erred in affirming the
administrative decision allegedly misconstruing the plain meaning of “pretrial” as it is used in
West Virginia Code § 33-12-34(b). That statute provides, in relevant part: “Within thirty days of
the initial pretrial hearing date, a producer shall report to the insurance commissioner any criminal
prosecution of the producer taken in any jurisdiction.” Petitioner appeared before a magistrate in
December of 2017, and the record indicates that a plea hearing was set for January 2, 2018, in
addition to the scheduling of a preliminary hearing multiple times. In the recommended decision
of the hearing examiner, which was adopted by the Commissioner, examiner stated that the statute
requires “a producer must report any criminal charge to the [] Commissioner within thirty days of
the pretrial hearing date. In the instant matter, [petitioner] did not have a pretrial, but did have
several hearing dates set.” The Commissioner went on to find that “a reasonable interpretation of
the statute is that [petitioner] must report the criminal charge within thirty days of the date when
the pretrial is set and it does not require that the hearing be held. While it is true that [petitioner]
is innocent until proven guilty, what would be the reason why [petitioner] should not report the
charge since reporting the charge is not an admission of guilt.” In concluding that petitioner failed
to comply with this statutory requirement, the hearing examiner specifically found that “since the
plain reading of the [s]tatute is that a producer must have to report the criminal charge until thirty
days of a pretrial, the Commissioner proved that [petitioner] violated” the statute. As this Court
has found, “‘“[i]nterpretations of statutes by bodies charged with their administration are given
great weight unless clearly erroneous.” Syl. Pt. 4, Security Nat’l Bank & Trust Co. v. First W. Va.
Bancorp., 166 W.Va. 775, 277 S.E.2d 613 (1981).’ Syllabus Point 3, Corliss v. Jefferson County
Bd. of Zoning Appeals, 214 W.Va. 535, 591 S.E.2d 93 (2003).” Syl. Pt. 2, Far Away Farm, LLC
v. Jefferson Cnty. Bd. of Zoning Appeals, 222 W. Va. 252, 664 S.E.2d 137 (2008). Petitioner has
failed to show that the Commissioner’s order was clearly wrong with regard to its interpretation
and application of the West Virginia Code § 33-12-34(b). Therefore, we find no merit to this
assignment of error.
In his second assignment of error, petitioner argues that the circuit court abused its
discretion in affirming the Commissioner’s order because the evidence presented at the
administrative hearing did not support a finding of fraud. 3 Because the revocation of petitioner’s
license was based on a finding that he committed fraud, we note that, at the time relevant to this
discussion, West Virginia Code § 33-41-11(a) (2007) provided:
3
Due to petitioner’s failure to cite to the appendix record at any point in this section of his
brief and his failure to properly cite law in support of his arguments, we remind petitioner of the
mandates of Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure:
The brief must contain an argument clearly exhibiting the points of fact and law
presented, the standard of review applicable, and citing the authorities relied on,
under headings that correspond with the assignments of error. The argument must
contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal. The Intermediate Court and the Supreme Court may
disregard errors that are not adequately supported by specific references to the
record on appeal.
2
Any person who knowingly and willfully and with intent to defraud submits a
materially false statement in support of a claim for insurance benefits or payment
pursuant to a policy of insurance or who conspires to do so is guilty of a crime and
is subject to the penalties set forth in the provisions of this section.
Petitioner generally asserts that his administrative hearing was peppered with a myriad of
unsubstantiated claims but acknowledges that “the evidence presented at the hearing indicated that
[he] failed to reveal the full extent of his claim submissions between” his own insurance policy
and a policy held by another driver. However, he argues that he did not accomplish criminal fraud
because neither insurance company pursued criminal charges against him and he returned
insurance proceeds that he received from his own insurer. We find that argument unavailing. The
applicable standard does not require a criminal conviction to support a license revocation. West
Virginia Code § 33-12-24(b)(8) requires that the licensee be “found” to have committed “any
insurance unfair trade practice or fraud[,]” and West Virginia Code § 33-12-24(b)(9) requires that
the licensee used “fraudulent, coercive, or dishonest practices, or demonstrate[d] incompetence,
untrustworthiness or financial irresponsibility” in business. The Commissioner’s decision to
revoke petitioner’s producer’s license is based on the fact that petitioner submitted a material and
false “hit-and-run” claim to his insurer, despite having previously acknowledged a separate claim
with the insurer of the driver and vehicle who damaged petitioner’s property. Petitioner did not
and does not point to any explanation in the record as to why he provided different dates for the
damage to his single trailer to two insurance companies or why he failed to inform either insurance
company about the claim filed with the other company. Throughout the proceedings, petitioner
has ignored the fact that he filed suit against the other driver while continuing to pursue a claim
with his own insurance company. Therefore, we find that petitioner has failed to show that the
Commissioner’s order or the circuit court order affirming the same on this basis was clearly wrong.
In his third assignment of error, petitioner argues the cumulative effect of the errors resulted
in the imposition of a penalty that is excessive in light of his “unblemished record in twelve years
of writing insurance.” 4 Under the same facts and analysis set forth above, it is clear that petitioner
engaged in fraudulent and dishonest practices and demonstrated financial irresponsibility. Thus,
petitioner has failed to show that the Commissioner’s decision or the circuit court’s affirmance of
that decision was arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion. 5 We, therefore, find that the circuit court did not err in finding
4
Petitioner wholly fails to cite to the record in this section of his brief in continuing
violation of Rule 10(c)(7) of the West Virginia Rules of Civil Procedure.
5
West Virginia Code § 29A-5-4(g) provides, in relevant part:
The court may affirm the order or decision of the agency or remand the case for
further proceedings. It shall reverse, vacate, or modify the order or decision of the
agency if the substantial rights of the petitioner or petitioners have been prejudiced
because the administrative findings, inferences, conclusions, decision, or order are:
. . . (6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
3
that the Commissioner acted within his discretion in revoking petitioner’s insurance producer’s
license, levying a civil penalty, and ordering that petitioner pay the costs of the proceedings before
the Commissioner. Based upon this finding, we also conclude that there was no cumulative effect
of the alleged errors.
Affirmed.
ISSUED: October 17, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Bunn, Justice, dissenting:
I dissent to the majority’s resolution of this case because I would have set this case for oral
argument to thoroughly address the errors alleged in this appeal. Having reviewed the briefing in
this matter, as well as the issues raised therein, I believe a formal opinion of this Court was
warranted—not a memorandum decision. Accordingly, I respectfully dissent.
4