Robert D. Helfand | PropertyCasualtyFocus | January 27, 2017
Nearly two years ago, a California appellate court invalidated a rule promulgated by the state’s Insurance Commissioner, on the ground that the regulator lacks authority to prohibit “deceptive acts or practices” which are not already identified in California’s Unfair Insurance Practices Act (UIPA), Cal. Ins. Code §§ 790 et seq. This week, in Assoc. of Cal. Ins. Cos. v. Jones, S22659 (Cal. Jan. 23, 2017), the Supreme Court of California unanimously reversed that decision, reinstating a rule that effectively creates a statutory tort for property insurers, if their replacement cost estimates fail to conform to the Commissioner’s guidelines. Although the new decision declared that the lower court had read the scope of Commissioner’s rulemaking authority too narrowly, the outcome of the case actually turned on an expansive view of a different power: the Commissioner’s ability to identify “statements” that violate the UIPA, because they are “untrue, deceptive, or misleading.” By endorsing the use of that power to prescribe the manner in which a business operation must be carried out, the court provided the regulator with a potentially powerful tool.
It’s Tough To Make Predictions
Wildfires are a recurring feature of life in California. In the 1990s and 2000s, large numbers of wildfire victims discovered that their property insurance policies would not cover the full cost of repairing or replacing their homes. In many of those cases, policy limits had been set on the basis of an estimate of future replacement costs that had been provided by the insurer.
Several different causes produced these cases of “underinsurance.” To begin with, replacement costs can spike when many homes in the same area are damaged at the same time. In some instances, the mass damage also occurred in remote or unusual locations, creating conditions (such as restricted access) that were not adequately factored into the standard models for estimating replacement costs. In other cases, the insured had failed to understand that the actual calculation of replacement cost at the time of a loss would take account of any depreciation of the property since the sale of the policy. In still others, the policyholder simply failed to comply with conditions on the replacement coverage.
California’s Legislature made repeated attempts to remedy this problem: in 2005, for example, it prohibited insurers who promise to pay “replacement cost” from making any deduction for “physical depreciation,” and it extended the insured’s time to comply with policy conditions in some cases. Cal. Ins. Code, § 2051.5. Nevertheless, when the state’s Insurance Commissioner conducted a market conduct examination of four large insurers, he found that most of the homes affected by wildfires in 2007 had less coverage than would actually be needed to rebuild them.
In April 2010, the Commissioner gave notice of a proposed rule that would require insurers who provide replacement cost estimates in connection with the sale or renewal of property policies to “include the expenses that would reasonably be incurred to rebuild the insured structure.” The proposed rule was modified in response to comments, and the final rule was promulgated in December 2010. 10 CCR § 2695.183.
What’s In The Rule
The Commissioner’s Rule contains several provisions governing the contents of any estimate of replacement costs. It specifies four categories of expense (including contractors’ “overhead and profit”) that must be included in every estimate, and eleven features of the insured structure that every estimate has to “consider[].”
It also requires insurers to re-evaluate the process often: “no less frequently than annually,” each insurer must “take reasonable steps to verify that the sources and methods used to generate the estimate … are kept current.”
Separately, the rule declares that any estimate which does not “comport” with these content requirements constitutes “making a statement with respect to the business of insurance which is misleading and which by the exercise of reasonable care should be known to be misleading.” That declaration means that a non-conforming estimate is one of the “unfair and deceptive acts or practices” that are prohibited by Section 790.03(b) of the UIPA.
This fact is important, because (among other reasons) California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq., “borrows violations of other laws and treats them as unlawful practices that … [it] makes independently actionable.” Cordas v. JPMorgan Chase Bank, N.A., 2012 WL 5902914, at *6 (Cal. Ct. App. Nov. 26, 2012). Any consumer who has suffered an “injury in fact” may seek injunctive relief and disgorgement under the Unfair Competition Law, either individually or on behalf of a putative class.
For this reason, the effect of the Commissioner’s rule is to create a new category of statutory tort: insurers who fail to prepare estimates in precisely the way the Commissioner has prescribed, or who fail to take what a policyholder considers “reasonable steps” to verify its sources, are subject to suits (including class action suits) in which plaintiffs may seek both the return of premiums and significant attorneys’ fees.
Sez Who?
The new rule was challenged in a declaratory judgment action brought by two trade associations, the Association of California Insurance Companies and the Personal Insurance Federation of California. Among other things, the plaintiffs asserted that the Commissioner lacked any statutory authority to create new categories of “unfair and deceptive acts” under the UIPA.
Section 790.03 of that statute specifically identifies several different categories of proscribed conduct, including, in Subsection (b):
[m]aking or disseminating or causing to be made or disseminated … in any … manner or means whatsoever, any statement … with respect to the business of insurance … which is untrue, deceptive, or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue, deceptive, or misleading.
The California Insurance Commissioner is authorized to enforce these prohibitions in several ways. Under Section 790.05, he can commence an administrative hearing against any person he suspects of committing any of the unfair acts that are “defined in Section 790.03.” The hearing can result in penalties under Section 790.35.
If the Commissioner believes an insurer is engaged in conduct that “is not defined in Section 790.03,” but which the Commissioner nevertheless considers to be “unfair or deceptive,” he can initiate a similar proceeding. In that case, however, his remedy is limited to injunctive relief.
Finally, under Section 790.10, the Commissioner may
promulgate reasonable rules and regulations, and amendments and additions thereto, as are necessary to administer this article.
In the declaratory judgment action, the plaintiffs argued that the issuance of a non-conforming estimate of replacement costs constitutes conduct that “is not defined in Section 790.03.” They contended that the Commissioner could properly address that conduct in a proceeding under Section 790.06, but not by enacting a rule that adds to the list of deceptive acts created by the Legislature.
In The Court Of Appeal
The plaintiffs succeeded in both the trial court and the Court of Appeal. The appellate court rejected the Commissioner’s argument that the rule merely “administer[s]” the statutory prohibition against “untrue, deceptive, or misleading” statements, finding that the argument “proves too much”:
If that were the case, there would be no need for the Regulation because … the Commissioner … would already have had the means in section 790.05 to assess penalties and issue a cease and desist order against a licensee … [who] had given a lowball or incomplete estimate … .
Assoc. of Cal. Ins. Cos. v. Jones, 185 Cal.Rptr.3d 788 (Cal. Ct. App. 2015).
The court further ruled that the Commissioner could not use his rulemaking authority to address conduct that has not been defined as unfair by the Legislature. It observed that an earlier, un-enacted version of Section 790.10 authorized the Commissioner to issue rules to “implement,” rather than to “administer,” the statutory terms. The plaintiffs argued that the language the Legislature rejected would have given “a broader grant of power,” and the court apparently agreed. It found:
The language of the UIPA reveals the Legislature’s intent to set forth in the statute what … practices are prohibited, and not delegate that function to the Commissioner.
As additional support for that conclusion, the Court of Appeal reasoned that Section 790.06 of the UIPA would be rendered “superfluous,” if the Commissioner could simply declare new conduct to be within the scope of Section 790.03.
In The Supreme Court
The Supreme Court disagreed with every point of that analysis. Describing Section 790.10, the court found that “[w]hat authority the Legislature conferred here appears to be quite broad,” and it cited other cases in which it had interpreted language it deemed to be similar in favor of state regulators. In this context, the court did not “perceive … [a] slight difference in wording” (whether between the UIPA and other statutes, or between “implement” and “administer”) to “evince any substantial distinction in the power the Legislature conveyed.”
Notably, however, the statutory language that the court used to justify its conclusion about the breadth of the Commissioner’s rulemaking authority did not come from the provision (Section 790.10) which granted that authority. It came from Section 790.03—the section that lists prohibited acts. The court noted that the Commissioner may enact rules to administer “this article”—i.e., the entire UIPA—and it went on to observe that the UIPA
includes the prohibition in [§ 790.03(b)] on making or disseminating any untrue, deceptive, or misleading statements with respect to the business of insurance. …
Where, as here, the Legislature uses open-ended language that implicates policy choices of the sort the agency is empowered to make, a court may find the Legislature delegated the task of interpreting or elaborating on the statutory text to the administrative agency.
The real engine of the Supreme Court’s decision, in other words, was a finding that the disputed regulation “does not address an unfair … practice ‘that is not defined in Section 790.03,’” and, rather, that it
does no more than identify a specific class of offending statements within the general statutory prohibition [in Section 790.03(b)] on any untrue, deceptive, or misleading statements in connection with the business of insurance.
In other words, the court held that the rule was designed to “interpret, or make specific” the list of prohibitions provided in Section 790.03—not to add to that list.
The notion that a non-conforming cost estimate is merely a specific type of “untrue, deceptive or misleading” statement is subject to two important objections. First, as the plaintiffs pointed out in their brief, some estimates of future replacement costs might fail to conform to the Commissioner’s standard and still turn out to be correct. Those estimates would not be “untrue, deceptive, or misleading”—at least within the ordinary meaning of those words.
This possibility that the rule is overinclusive did not affect the court’s decision, however, because the plaintiffs were mounting a “facial” challenge to the regulation, rather than a claim based on the rule as applied. “A facial challenge [to a law or regulation] is ‘the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the [law] would be valid.’” T.H. v. San Diego Unified School Dist., 122 Cal.App.4th 1267 (2004). Thus, the Supreme Court ruled:
Because the [plaintiffs] … advanced only a facial challenge to the Regulation, [their] burden was to show, at the least, that a noncompliant estimate would not be misleading in the generality or vast majority of cases. [Plaintiffs] ha[ve] not carried [their] burden.
Secondly, as the Court of Appeal pointed out, an “estimate” of future costs is not a promise or a guarantee; the fact that it ultimately turns out to be inaccurate does not, by itself, mean the estimate was “untrue” or “misleading.” The Supreme Court’s response to that argument boils down to an assertion that the Commissioner has identified the “cost components” that are ”essential” to make any estimate of future repairs reasonable:
[T]he defect sought to be remedied by the Regulation is not the possibility that actual costs … may not align with estimated costs. Rather, the Regulation seeks to reduce the possibility that an estimate would be misleading by ensuring that the estimate include all that is reasonably knowable about actual costs at the time the insurance contract is executed. … The Commissioner could reasonably conclude that replacement cost estimates are likely to mislead the public about the actual cost of repair or replacement when they willfully omit cost components essential to repairing or rebuilding a dwelling.
This argument does not quite shake free of the lower court’s point that an inaccurate prediction is not necessarily a misleading one. In fact, despite the Supreme Court’s denial, this paragraph shows that the “defect” the regulation seeks to remedy is precisely the possibility that the estimate will turn out to be inaccurate. What other defect is addressed by “ensuring that the estimate include all that is reasonably knowable” about replacement costs? What else would it mean to “mislead” the public about “the actual cost of repair”?
What the Supreme Court assumed, however, is that the Commissioner has hit upon the one and only method for making a cost estimate reasonably and in good faith—all other methods being “likely” to diverge from the “actual cost of repair.” Importantly, however, the Commissioner did not purport to promulgate this rule under a statutory directive to determine what the best method for estimating repair costs might be. The Legislature could have instructed the Commissioner to make that determination, since (as the Supreme Court acknowledged) it specifically addressed the problem of underinsurance for victims of wildfires in 2004 and 2005. But it did not do so.
In the absence of that authority, the Commissioner independently made a determination about how cost estimates ought to be prepared, and then enforced it under his power to act against deliberate falsehoods—statements that are knowingly “untrue, deceptive, or misleading.” The Supreme Court’s slightly tangled argument approved that procedure.
How Far Can They Go?
In connection with last month’s decision from Minnesota, this blog predicted there will be more battles in the near future over the power of regulators to control aspects of the insurance business that are common to other, unregulated industries.
In that case (Matter of the Petition of the Property Casualty Insurers Association of America, Inc., 41 Minn. State Register 830 (Dec. 7, 2016)), an administrative law judge ruled that a review of insurers’ diversity practices was not authorized by a statute which allowed Minnesota’s Commissioner of Commerce to investigate matters relating to “the duties and responsibilities entrusted to” him. The result might have been different, however, if the Commissioner had relied on a statute that granted broad rule-making authority—such as a statute from North Carolina, which expressly authorizes regulators to adopt “rules that define unfair methods of competition or unfair or deceptive … [insurance] practices.” N.C. G.S.A. § 58-63-65. See also Wash. Ins. Code § 48.30.010(2); 24-A Maine Rev. Stat. Ann. § 2151-B. Or one from Texas, granting power to make “rules … necessary to implement and augment the purposes and provisions of this subchapter.” Tex. Ins. Code § 542.014.
The rulemaking authorization in California’s UIPA is narrower than those provisions, and the Supreme Court’s decision in Jones did not announce a particularly expansive reading of it. On the other hand, the court’s emphasis on the UIPA’s prohibition against “any” misleading statement “with respect to the business of insurance” suggests that statements made in connection with such generic business functions as procurement or employment—and, almost certainly, marketing—could still be fair game for regulation.
In Jones, the Commissioner developed what he considers the best method for carrying out a particular business process—predicting the cost of future repairs—and then mandated compliance with that method under a statute governing “statements” that are knowingly “untrue” or “misleading.” The fact that California’s Supreme Court endorsed that approach to regulation means aggressive regulators will have plenty to work with.