ORDERS:
ORDER GRANTING MOTION TO DISMISS
This matter is before the Administrative Law Judge Division ("Division") pursuant to the Motion to Dismiss filed by the
South Carolina Department of Insurance ("Department") on February 4, 2002. The Department asserted Auto Insurance
Agency, Inc. ("AIA") failed to state facts sufficient to constitute a right to an appeal. AIA filed its response to the motion
on February 22, 2002.
On August 9, 2001, the Department issued a permanent license to AAA Auto Insurance Agency, Inc. ("AAA") to transact
the business of an insurance agent. AIA thereafter learned of the Department's decision to grant the license. On September
26, 2001, the attorney for AIA met with an attorney at the Department and voiced objections to the Department's decision
to grant a license to AAA. The attorney for AIA then followed up the meeting by explaining AIA's position in a letter
dated October 15, 2001. On December 5, 2001, the Department sent a letter to AIA indicating that "after careful review of
all the insurance statutes, regulations, and information provided, the Department has come to the conclusion that its
approval of a license for AAA on August 9, 2001 was appropriate and not in violation of any statutes and or regulations."
On January 7, 2002, AIA filed an appeal of the Department's decision dated December 5, 2001, and received by AIA on
December 6, 2001.
Standing
The Department argued in the Motion to Dismiss that AIA lacks standing to appeal the Department's decision to issue a
license to AAA because AIA was not a party to that decision.
AIA argues in response that it has standing because (1) its business and economic interests have been and will continue to
be harmed by the Department's decision and (2) as a licensed insurance agency in this state, AIA is in the zone of interests
intended to be protected by the prohibitions contained in Regulation 69-23 against the licensing of another agency with a
misleading or deceptive name.
Regulation 69-23 provides in pertinent part, "No such agency shall be licensed under a name which is likely to lead a
person of average intelligence to believe that the agency is an insurer, an agency of any government, or a club, fraternity,
association or social or military organization, or which is otherwise deceptive or misleading." S.C. Code Ann. Regs. 69-23(1) (1976) (emphasis added). Nothing in the regulation indicates that a competing insurance company can appeal the
Department's decision to issue an insurance license based on the name of the company. Based on the plain language of this
regulation, the Department sought to prevent an insurance agency from implying that the agency is an insurer or is
associated with a certain group in order to solicit customers. The regulation does not address situations when an insurance
agency attempts to use a name similar to that of an existing insurance agency. As a result, the regulation does not
contemplate the complaint raised by AIA in this appeal
Statute of Limitations
In the Department's Motion to Dismiss filed February 4, 2002, the Department first argued the appeal was barred by the
statute of limitations. According to the Department, its final decision in this matter was issued on August 9, 2001, and any
appeal of that decision should have been filed within thirty days of August 9. The Department further argues that the
appeal filed by AIA on January 7, 2002 is barred by the statute of limitations since the letter dated December 5, 2001 was a
"non-binding informal advisory opinion."
AIA argues in response that the letter dated December 5, 2001 constitutes the final decision of the Department and,
therefore, is appealable under S.C. Code Ann. § 38-3-210 (Supp. 2001). According to AIA, because it filed an appeal with
the Division within thirty days of that decision, the appeal is not barred by the statute of limitations.
The central issue here is whether the decision of December 5, 2001, constitutes an "order or decision made, issued, or
executed by the director or his designee" as contemplated by § 38-3-210. If so, then this appeal is timely filed. If not, then
this appeal is barred by the statute of limitations. Here, the final decision was made by the Department on August 9, 2001.
Any appeal of the Department's decision to issue a license to AAA to conduct insurance business should have been filed
within the requisite time period following that decision. The letter dated December 5, 2001 merely reiterated the
Department's position that it violated no statutes or regulations when making the decision of August 9, 2001. It did not
constitute a new order or decision made by the Department and, therefore, was not appealable. As a result, the appeal filed
by AIA on January 7, 2002, is barred by the statute of limitations. The Department's Motion to Dismiss, therefore, must be
granted.
IT IS HEREBY ORDERED that the Department's Motion to Dismiss is granted and this appeal is dismissed with
prejudice.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
May 14, 2002
Columbia, South Carolina |
