GOLDEN RULE INSURANCE COMPANY, an Illinois Corporation Plaintiff,
v.
James E. LONG, Individually and as Commissioner of Insurance for the State of North Carolina Defendants.
No. 9210SC677.
Court of Appeals of North Carolina.
August 3, 1993. Ordered Published December 23, 1993.*602 Curtis J. Dickinson, Indianapolis, IN, and Burford & Pugh, by Robert J. Burford, Raleigh, for plaintiff-appellant.
LeBouef, Lamb, Leiby & MacRae by George R. Ragsdale, Kristin K. Eldridge and E. Daniels Nelson and North Carolina Dept. of Ins. by Ann W. Spragens, Gen. Counsel, for defendant-appellee, individually; and Atty. Gen. Lacy H. Thornburg, by Sr. Deputy Atty. Gen. Isham B. Hudson, Jr., Raleigh, for defendant-appellee, officially.
ARNOLD, Chief Judge.
When a suit is brought against a public official in his official capacity the issue of sovereign immunity is raised. See Bland v. City of Wilmington, 278 N.C. 657, 180 S.E.2d 813 (1971). "The doctrine of sovereign immunitythat the State cannot be sued without its consenthas long been the law in North Carolina." Smith v. State, 289 N.C. 303, 309, 222 S.E.2d 412, 417 (1976). The doctrine proscribes, among others, "suits to prevent a State officer or Commission from performing official duties or to control the exercise of judgment on the part of State *603 officers or agencies." Id. at 310, 222 S.E.2d at 417.
Sovereign immunity is absolute unless the defendant expressly consents to be sued or waives immunity under a statutorily created waiver. State v. Taylor, 322 N.C. 433, 368 S.E.2d 601 (1988). Plaintiff cites several statutory provisions which it alleges authorize waiver of sovereign immunity up to the amount of the insurance available for the coverage of liability in the policy purchased. But the State's insurance policy at issue does not cover any cause of action related to this dispute. Rather, the insurance purchased on behalf of the State government as named insured covers bodily injury liability and property damage liability, neither of which is alleged in the case at bar. Defendant has not waived sovereign immunity. The waiver of immunity extends only to injuries which are specifically covered by the insurance policy, and plaintiff alleges no injuries covered by the policy. See Overcash v. Statesville City Bd. of Educ., 83 N.C.App. 21, 348 S.E.2d 524 (1986).
The official status of state officers, standing alone, however, does not immunize them from suit. Smith, 289 N.C. at 331, 222 S.E.2d at 430; Lewis v. White, 287 N.C. 625, 643, 216 S.E.2d 134, 146 (1975). A public official, engaged in the performance of governmental duties involving the exercise of discretion, may be held personally liable if it is alleged and proved that his act, or failure to act, was corrupt or malicious, or that he acted outside of and beyond the scope of his authority. Smith, 289 N.C. at 331, 222 S.E.2d at 430; see also Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992). "As long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtue of his office, keeps within the scope of his official authority, and acts without malice or corruption, he is protected from liability." Smith, 289 N.C. at 331, 222 S.E.2d at 430. Golden Rule contends that Commissioner Long did not act within the scope of his authority, and that he acted maliciously, thereby removing him from his official status and making him personally liable. We disagree.
SCOPE OF AUTHORITY
Golden Rule alleges that Commissioner Long acted outside the scope of his authority in several ways. First, they contend that Commissioner Long acted outside his scope of authority by conditioning approval of Golden Rule's requested 73.6% rate increase by imposing a one-year guarantee of rates and anniversary date implementation restrictions. Golden Rule insists that these conditions were not requirements enacted by the Legislature, nor were they properly promulgated as a rule, and, therefore, Commissioner Long exceeded his authority.
The relevant statute governing the authority of the Commissioner of Insurance at the time of this controversy was N.C.Gen.Stat. § 58-251.2(a), which provided in part:
The insurer upon a showing of inadequacy of the rates chargeable on such policies upon which notice of nonrenewal has been given, and a finding as to the same by the Commissioner of Insurance, may increase such rates with the approval of the Commissioner.
(Emphasis added.) Golden Rule argues that the statutory language quoted above does not give the Commissioner the authority to demand a delay in implementation or a guarantee of rates for one year.
"An issue as to the existence of power or authority in a particular administrative agency is one primarily of statutory construction." State ex rel. Comm'r of Ins. v. Rate Bureau, 300 N.C. 381, 399, 269 S.E.2d 547, 561, reh'g denied, 301 N.C. 107, 273 S.E.2d 300 (1980). In construing laws regarding statutory authority of an administrative agency, the court's function is to ensure that the purpose of the Legislature in enacting the law is accomplished. Id. The court can look to the language of the statute, the spirit of the act and what the act seeks to accomplish. Id. Here, the purpose of the statute conferring upon the Commissioner the authority to approve requested rate increases was best stated by the Attorney General in the following 1969 opinion:
The Act was designed to curb the abuse, at that time, of A & H companies collecting premiums, then mass cancelling of policies. *604 In order to prevent companies from being locked in on inadequate rates, however, the General Assembly provided a method whereby the company, after giving the proper notice of non-renewal, could seek a rate increase.
40 Op.Att'y.Gen. 340, 341 (1969); see also, American Nat'l Ins. Co. v. Ingram, 63 N.C.App. 38, 303 S.E.2d 649, cert. denied, 309 N.C. 819, 310 S.E.2d 348 (1983). Furthermore, as to plaintiff's argument that had the Legislature intended to give the power to Commissioner Long to approve a full year fixed rate for accident and health insurance policies it would have done so explicitly, the Supreme Court of North Carolina has responded to this argument by stating that:
The Legislature can obviously not anticipate every problem which will arise before an administrative agency in the administration of an act. The legislative process would be completely frustrated if that body were required to appraise beforehand the myriad situations to which it wished a particular policy to be applied and to formulate specific rules for each situation. Clearly, then, we must ... leave to executive officers the authority to accomplish the legislative purpose.... The modern tendency is to be more liberal in permitting grants of discretion to administrative agencies in order to ease the administration of laws as the complexity of economic and governmental conditions increases.
State ex rel. Comm'r of Ins. v. Rate Bureau, 300 N.C. at 402, 269 S.E.2d at 563 (citation omitted). Moreover, then applicable N.C.Gen.Stat. § 58-254.7 (1981) provided that the Commissioner may disapprove any accident and health policy in which the benefits provided therein are unreasonable in relation to the premium, or where the policy contains provisions that are unfair, unjust, or inequitable. We conclude that Commissioner Long's approval of the requested rate increase conditioned upon a delayed implementation date and one-year guarantee was within his statutory scope of authority.
Second, Golden Rule argues that Commissioner Long exceeded his authority by violating provisions of the Unfair Trade Practices Act. Commissioner Long initially asserts that the Wake County Superior Court has no jurisdiction over plaintiff's cause of action because jurisdiction lies in the Office of the Commissioner of Insurance under N.C.Gen.Stat. § 58-63-40 (1991), therefore, summary judgment was properly allowed. Although it is true that jurisdiction under the Insurance UPTA lies in the Commissioner's office, defendant fails to recognize that unfair and deceptive acts in the insurance area are not regulated exclusively by N.C.Gen.Stat. § 58-63 (1991), but are also actionable under N.C.Gen.Stat. § 75-1.1 (1988). Ellis v. Smith-Broadhurst, Inc., 48 N.C.App. 180, 268 S.E.2d 271 (1980). Plaintiff is therefore correct. Chapter 58 did not create the only means by which an injured party can seek recovery for damages, and a claim for unfair and deceptive acts and practices within the insurance industry may constitute the basis for recovery under G.S. § 75-1.1.
Nevertheless, plaintiff's argument is untenable. In Sperry Corp. v. Patterson, 73 N.C.App. 123, 325 S.E.2d 642 (1985), this Court held that G.S. § 75-1.1 does not create a cause of action against state officers when they act as representatives of the State. Long was a representative of the State in this matter, and plaintiff, therefore, has no cause of action.
Third, Golden Rule asserts that Commissioner Long exceeded his scope of authority by soliciting business for BCBS, by granting BCBS extraordinary rate relief as the quid pro quo for BCBS's willingness to provide coverage for Golden Rule policyholders, and by arbitrarily favoring BCBS in rate review. Golden Rule sets forth this assignment of error in its main brief separately as evidence that Commissioner Long acted outside the scope of his authority. Golden Rule also sets forth these allegations concerning BCBS as evidence of violations of the UTPA. In either instance, we hold that Golden Rule's claim alleging political favoritism and discrimination against Golden Rule in favor of BCBS is not evidence that Commissioner Long acted outside his scope of authority.
As previously discussed, Long cannot be sued under Chapter 75. Furthermore, Golden *605 Rule's separate allegation that BCBS received favorable treatment that discriminated against Golden Rule does not constitute a recognized cause of action. Golden Rule's mere allegations regarding special treatment of BCBS by the DOI and Commissioner Long are unsupported by law or fact. Golden Rule fails to afford this Court any citations of authority or portions of the record on which it relies to support its argument. This assignment of error is, therefore, deemed abandoned. N.C.R.App.P. 28; S.J. Groves & Sons & Co. v. State, 50 N.C.App. 1, 52, 273 S.E.2d 465, 491-92 (1980), disc. review denied, 302 N.C. 396, 279 S.E.2d 353 (1981).
Finally, Golden Rule argues that Commissioner Long exceeded his authority by initiating a retaliatory market conduct examination of Golden Rule. These allegations are contained in the second amended complaint, and, as we discuss in detail below, plaintiff's motion to file the second amended complaint was properly denied. This claim, therefore, is not subject to review.
MALICE
Although Commissioner Long did not act outside the scope of his statutory authority, he may still be liable in his individual capacity if plaintiff can establish that he acted with malice. Plaintiff argues that sufficient evidence of malice exists to defeat Long's summary judgment motion. We disagree.
Plaintiff points to Commissioner Long's communications with other insurance commissioners at the NAIC meeting as evidence of malice. At that meeting, Commissioner Long discussed his concerns over plaintiff's behavior in North Carolina, and the evidence shows that many of the commissioners expressed similar concerns about plaintiff. Plaintiff concedes that discussions between insurance commissioners about common concerns are legitimate but argues that Commissioner Long's discussions are evidence of malice. We fail to see how a legitimate act, carried out in the performance of official duties, that is Commissioner Long's discussions with other insurance commissioners, could be evidence of malice. If that were the case, public officials would be immobilized at every threat of litigation.
As additional evidence of malice plaintiff contends that during the 6 February 1989 meeting between the DOI and plaintiff, Commissioner Long became angry and told plaintiff's CEO that he would get plaintiff in the press if plaintiff continued to take the dispute between the DOI and plaintiff to the public. Commissioner Long, according to plaintiff, also threatened to leave the meeting and stated that "if that's all we have to talk about ... this meeting is over." In his deposition Commissioner Long also remarked several times that Golden Rule was holding the citizens of North Carolina hostage.
Although acts of hostility and anger may be used as evidence to prove malice we must reject plaintiff's characterization of such in this case. Given the antagonistic relationship that had developed between the parties we cannot imagine how Commissioner Long's reaction at the 6 February 1989 meeting could have been more predictable. We see no probative value in evidence that Commissioner Long threatened to leave the meeting or use the press against plaintiff. It is irrational to assume that Commissioner Long would not use the press since Golden Rule already had issued public statements against Commissioner Long and the DOI.
42 U.S.C. § 1983 CLAIMS
Plaintiff conceded that summary judgment was properly granted on the § 1983 claim against Commissioner Long in his official capacity, so there is no need to address that portion of the trial court's order.
Plaintiff has abandoned the § 1983 claim against Commissioner Long individually by failing to include any discussion of that claim in its initial brief. N.C.R.App.P. 28(b)(5) dictates that the appellant's brief must contain an argument setting forth the contentions of the appellant and citations of authority upon which the appellant relies. Failure to do so abandons the argument. S.J. Groves & Sons & Co. v. State, 50 N.C.App. 1, 273 S.E.2d 465 (1980), disc. review denied, 302 N.C. 396, 279 S.E.2d 353 (1981).
*606 We are aware that plaintiff argued the merits of the § 1983 claim against Commissioner Long individually in plaintiff's reply brief to Commissioner Long's official capacity brief. That argument however did not mend the defect in plaintiff's initial brief. Plaintiff could not address new questions in its brief unless they were raised in defendant's brief, N.C.R.App.P. 28(h), and defendant's individual capacity brief contained no discussion of § 1983. Accordingly, plaintiff's reply brief could not resurrect the abandoned claim. See Animal Protection Society v. State, 95 N.C.App. 258, 382 S.E.2d 801 (1989).
Plaintiff suggests that an argument on the merits of the § 1983 claim was unnecessary because summary judgment was granted on all claims on the basis of Commissioner Long's qualified immunity. Even if that is true, plaintiff's claim is still deemed abandoned. Plaintiff did not present any argument as to why Commissioner Long's qualified immunity defense should fail. In order to defeat the qualified immunity, plaintiff had to show that defendant violated some clearly established constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). This standard determines if further proceedings are barred by qualified immunity by examining the law in existence at the time of the offense to determine if it contained "clearly established... rights of which a reasonable person would have known." Id. at 818, 102 S. Ct. at 2738, 73 L.Ed.2d at 410. Plaintiff pled violations of the due process clause, the equal protection clause, and the contract clause, but we are in the dark as to which particular rights plaintiff contends were violated, how they were violated, if they are well established, or even if plaintiff is alleging substantive or procedural due process violations. Because of these deficiencies, plaintiff's claim is deemed abandoned.
SECOND AMENDED COMPLAINT
Golden Rule's second assignment of error is that the trial court erred in denying its motion to file a second amended complaint. Plaintiff sought leave to file the second amended complaint on 13 December 1991 "in order to conform the complaint to the evidence obtained in discovery, to clarify ambiguities, clarify the limitation of the § 1983 claim to Jim Long, individually, and to facilitate presentation of the merits of this action at trial." The second amended complaint sought to amend Count III of the original amended complaint in order to hold Commissioner Long, individually, liable for alleged violations of 42 U.S.C. § 1983 and to allege specific facts regarding violations that had not yet been pled. Judge Stephens denied the motion based on plaintiff's failure to exercise due diligence in filing the motion before the eve of trial. Furthermore, Judge Stephens concluded that to allow the motion would create a likelihood of further delay and possibility of undue prejudice to defendant, individually.
Leave to amend pursuant to N.C.Gen.Stat. § 1A-1, Rule 15(a) should be "freely given except where the party objecting can show material prejudice by the granting of a motion to amend." Brown v. Lyons, 93 N.C.App. 453, 456, 378 S.E.2d 243, 245 (1989) (quoting Martin v. Hare, 78 N.C.App. 358, 360, 337 S.E.2d 632, 634 (1985)). The trial court may deny a motion to amend a complaint based on "a) undue delay, b) bad faith, c) undue prejudice, d) futility of amendment, and e) repeated failure to cure defects by previous amendments." Martin, 78 N.C.App. at 361, 337 S.E.2d at 634. A ruling on a motion to amend is addressed to the sound discretion of the trial court and is not reviewable absent an abuse of discretion. Id. In this case, we find no abuse of discretion on behalf of the trial judge.
Plaintiff did not file its motion to amend until almost two years and six months after the first amended complaint was filed. Both parties had engaged in extensive discovery and various matters had been brought before the court. Golden Rule filed the motion only thirty-nine days prior to the date set for trial. Moreover, the evidence also indicates that Golden Rule's delay was undue and would likely prejudice defendant. Factual allegations raised for the first time in the proposed second amended complaint *607 were found by the trial court to be known by plaintiff, at the latest, in May 1991 when the matter was peremptorily set for trial. The trial judge, therefore, properly exercised his discretion in denying plaintiff's motion to file a second amended complaint.
Affirmed.
ORR and MARTIN, JJ., concur.