DISCLOSURE: Bordas & Bordas, PLLC, represents Paul Lightner in this case.
Whether or not the Insurance Commissioner's discretion in respect to insurance rates is essentially un-reviewable, either in an Administrative Procedure Act appeal, or in an action for damages under W.Va. Code Sec. 46A-3-101 et seq.
In this APA appeal, Paul Lightner challenges the decision of the Kanawha County Circuit Court that upheld the decision of the West Virginia Insurance Commissioner that certain rates charged for credit insurance products by Citifinancial and Triton Insurance, were reasonable within the meaning of the West Virginia Consumer Credit Protection Act. The case has previously been before the Supreme Court of Appeals as SER Citifinancial v. Madden (2008).
Lightner takes the position that the rates are unreasonable in view of the administrative record as a whole, and that the Commissioner abused its discretion in finding them to be reasonable. He also protests the refusal of a hearing on the merits before the Insurance Commissioner. Lightner likewise argues that the Circuit Court abused its discretion in affirming the Commissioner's decision without meaningful review.
The Commissioner takes the view that his discretion in respect to insurance rates is essentially unfettered by APA review or by statute. The Commissioner argues that his specialized expertise makes the Commissioner the only entity qualified to judge the reasonableness of insurance rates in West Virginia and that allowing review by Circuit Courts, juries or other judicial actors would be disruptive. Finally, the Commissioner takes the view that it has discretion to refuse hearings in any instance where the Commissioner finds that a hearing would not be "useful."
Combined with SER Citifinancial v. Madden and Brickstreet v. Bunch, this case may make-or-break the possibility of judicial review of Insurance Commissioner actions in respect to insurance rates. In both Madden, and Bunch, the Court expressed serious concerns and reservations about the Insurance Commissioner's failure to hold hearings and the sweeping claims of authority to approve any rate without meaningful review either in hearings before the Commissioner, or after the fact. Nonetheless, in both Bunch and Madden, the Court ultimately sided with the Commissioner. Lightner, because of the extreme nature of the rates charged and the denial of any hearing even after the Madden decision remanded for a hearing, presents the starkest challenge yet to the Commissioner's claims of essentially unreviewable discretion.