First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Ind., in his Official Capacity, on Behalf of the Ind. Dept. of Insurance

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE ATTORNEYS FOR AMICUS
Thomas E. Wheeler Gregory F. Zoeller CURIAE INDIANAPOLIS BAR
Sarah Steele Riordan Attorney General of Indiana ASSOCIATION APPELLATE
Maggie L. Smith
Frost Brown Todd LLC Thomas M. Fisher
PRACTICE SECTION
Indianapolis, Indiana Solicitor General Stephen J. Peters
Plunkett Cooney, P.C.
David L. Steiner Indianapolis, Indiana
Deputy Attorney General
Josh S. Tatum
Heather Hagan McVeigh Plews Shadley Racher & Braun LLP
Deputy Attorney General Indianapolis, Indiana
Indianapolis, Indiana
AMICUS CURIAE IN SUPPORT
OF APPELLEE/CROSS-
APPELLANT
Jeffrey O. Cooper
Indiana University Robert H.
McKinney School of Law
Indianapolis, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court
_________________________________ Mar 26 2015, 9:40 am

No. 49S04-1311-PL-732

FIRST AMERICAN TITLE INSURANCE
COMPANY,
Appellant and Cross-Appellee
(Petitioner below),

v.

STEPHEN W. ROBERTSON, INSURANCE
COMMISSIONER OF THE STATE OF INDIANA,
IN HIS OFFICIAL CAPACITY, ON BEHALF OF THE
INDIANA DEPARTMENT OF INSURANCE,
Appellee and Cross-Appellant
(Respondent below).
_________________________________

Appeal from the Marion Superior Court No. 7, No. 49D07-1105-PL-019374
The Honorable Michael D. Keele, Judge
_________________________________

On Petition For Rehearing
_________________________________
 March 26, 2015

Rucker, Justice.

The Commissioner of the Indiana Department of Insurance (“Commissioner”) seeks
rehearing of this Court’s opinion in which we determined a petitioner seeking judicial review of
an agency decision must file the agency record as defined by the Administrative Orders and
Procedures Act and that the failure to do so results in dismissal of the petition. See American
Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind. 2014). The essential facts are these. Seeking
judicial review of an agency order, First American Title Insurance Company did not file the
agency record as required. Instead, First American filed various papers supporting its argument
that the agency order was void. Commissioner moved to dismiss for lack of an agency record.
The trial court denied the motion. On review the Court of Appeals affirmed the trial court in part
declaring, among other things, the order was untimely and void. On transfer, focusing on First
American’s failure to file the agency record, we reversed the trial court’s judgment. We
summarily affirmed various other portions of the Court of Appeals opinion. In a footnote the
Court announced, “We also summarily affirm that portion of the Court of Appeals opinion
declaring the Commissioner’s hearing order untimely and void, as well as that portion of the
opinion declaring that a petitioner seeking judicial review of an agency decision need not
demonstrate a separate showing of prejudice.” Id. at 760 n.3.

In his Petition for Rehearing, the Commissioner takes issue with the first clause of the
footnote contending, “the Court’s judgment reversing the trial court for failing to dismiss the
First American petition for judicial review appears inconsistent with its summary affirmance of
the Court of Appeals concerning the timeliness of the Commissioner’s hearing order and First
American’s failure to exhaust administrative remedies.” Pet. for Reh’g at 1. According to the
Commissioner, “there is substantial tension, if not outright conflict, among these statements.” Id.
at 3. We agree and therefore grant rehearing to delete the first clause of footnote three. In all
other respects the original opinion is affirmed.

Rush, C.J., and Dickson, David and Massa, JJ., concur.

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