Dissenting Opinion
DeBruler, J.—Inthis case we are called upon to interpret
and apply the provisions of I.C. 27-1-20-23, being Burns § 39-5023, which provides:
“No order, judgment, or decree providing for an accounting or enjoining, restraining or interfering with the operation of the business of any insurance company, association, or society, to which any provision of this act is applicable, or for the appointment of a temporary or permanent receiver thereof, shall be made or granted otherwise than upon the application of the department, except in an action by a judgment creditor or in proceedings supplemental to execution.”
The intent of the Legislature in enacting § 39-5023, is to insulate insurance companies from broad, equitable court orders, judgments and decrees, the effect of which would be to destroy or substantially impair the ability of an insurance company to continue operating as an ongoing business. Judgment creditors and the Department of Insurance are excepted from the prohibition of the statute, and thus may obtain such broad judicial orders. The statute clearly focuses on the judicial remedy which a court may grant on behalf of a court claimant against an insurance company. In legal effect, the statute bars the institution of no claim. In practical effect, and in accordance with cases interpreting this statute, a trial court may dismiss a claim on a Rule 12(B) (6) motion, if the sole remedy sought by the claimant is one prohibited by the statute. If a claimant seeks two remedies, one which is prohibited by the statute, and another which is not so prohibited, the trial court has jurisdiction to hear the suit and afford the non-prohibited remedy. State ex rel. Mid-West *449Insurance Co. v. Superior Court of Marion County, et al. (1952), 231 Ind. 94, 106 N. E. 2d 924.
In the mandate suit below Judge Bach denied a Eule 12 (B) (6) motion, and in so doing determined that he had jurisdiction to try the question of whether or not the plaintiffs were entitled to examine and inspect the stockholder lists of the two defendant corporations, in which plaintiffs were stockholders. This was clearly correct. Section 39-5023 does not bar the instituting and maintaining of a suit to compel an insurance company to permit examination and inspection of its stockholders list by a stockholder. A mandate order requiring such an inspection would not interfere with the operation of the insurance company, in the sense contemplated by the statute. The majority is clearly in error in mandating the trial court to grant the motion to dismiss the mandate action below, being Cause No. 72-C-37.
In the derivative suit below, plaintiffs are stockholders of Great Fidelity Life Insurance Company, and instituted their action “on behalf of other stockholders similarly situated, in the right of Great Fidelity Insurance Company and for its benefit.” Defendants in the suit are Great Fidelity Insurance Company, Southern Securities Corporation, and seventeen individual defendants who are the directors and officers of Great Fidelity and Southern Securities Corporations. This suit is correctly characterized as requesting some remedies which are prohibited by the terms of § 39-5023, and also requesting some remedies which are not so prohibited. For example, this statute would not serve to prohibit any order or judgment against Southern Securities Corporation, since that corporation is admittedly not an insurance company itself, although it owns the majority of stock in the Great Fidelity Insurance Company which is an insurance company. State ex rel. Meade v. Marion Superior Court (1961), 242 Ind. 22, 174 N. E. 2d 408. However, on the other hand, plaintiffs make the following as part of the prayer of their complaint:
*450“5. Great Fidelity be restrained and enjoined from holding its annual meetings of stockholders and directors until such time as this Court can hear and determine the merits of the matters herein alleged and can make proper orders for the protection of Great Fidelity and its stockholders.”
This part of the prayer could reasonably be construed as requesting a remedy, which if granted by the court would constitute an interference with the business of the defendant insurance company, Great Fidelity. Such an interference is prohibited by the statute. Under the holding of this Court in State ex rel. Mid-West Insurance Company v. Superior Court of Marion County, et al., supra, the Posey Circuit Court below would have jurisdiction to entertain this derivative suit and afford any proper remedies against Southern Securities warranted by the law and evidence, and the effect of the statute would be to prohibit the court from enjoining the stockholders and directors meetings of Great Fidelity. Viewed correctly, this statute does not prohibit the exercise of jurisdiction of the trial court over a suit which requests both prohibited and non-prohibited remedies. The majority is in error in mandating the trial court to grant the motion to dismiss the entire suit below, being Cause No. 72-C-38.
I therefore dissent to the majority opinion and vote to deny the writ.
Prentice, J., concurs.Note.—Reported in 288 N. E. 2d 143.