COURT OF APPEALS DECISION DATED AND RELEASED June 8, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-0852
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
DONALD A. MARKWALDER,
Petitioner-Appellant,
v.
OFFICE OF THE
COMMISSIONER OF
INSURANCE OF
WISCONSIN,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Dane County:
ANGELA B. BARTELL, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Sundby, J.
PER CURIAM. Donald A. Markwalder
appeals from a circuit court order affirming a decision of the Office of the
Commissioner of Insurance (OCI) revoking his insurance intermediary's license
and prohibiting him from reapplying for a new license for two years. An examiner found that Markwalder violated
§ 628.34, Stats., which
prohibits unfair marketing practices, including misrepresentation respecting
insurance contracts. For the reasons
set forth below, we affirm.
BACKGROUND
In 1992, Markwalder held
an insurance intermediary's license which permitted him to sell insurance to
the public. For several months in 1992,
Markwalder accepted premiums from clients for insurance policies never issued,
misled clients as to whether they were insured, provided false insurance
documents to clients, refused to return client calls, and made promises and
excuses to clients in lieu of providing service.[1] Consumer complaints led to an OCI
investigation.
OCI issued a notice of
hearing, Markwalder responded to the allegations in the notice, and a prehearing
conference was conducted, followed in January 1993 by a hearing before a
hearing examiner. The hearing was
continued to February 1993, and the matter was resolved by a Final Decision and
Order which revoked Markwalder's
license and prohibited him from reapplying for a period of two years. Markwalder sought ch. 227, Stats., review before the circuit
court, which affirmed. He then appealed
to this court.
STANDARD OF REVIEW
In reviewing
administrative decisions, we are confined to the record. Section 227.57(1), Stats. We affirm the
agency unless we find that the agency erroneously interpreted the law, and a
correct interpretation compels a different result. Section 227.57(5). OCI is
charged with administering insurance intermediary licenses, and has been for
many years. Thus, its experience,
competency and knowledge in enforcing the relevant statutes entitle its
decisions to "great weight." Sauk
County v. WERC, 165 Wis.2d 406, 413, 477 N.W.2d 267, 270 (1991).
ANALYSIS
Markwalder makes three arguments. He claims that § 628.34, Stats., does not apply to his
acts. If the statute does apply, he
argues that § 628.34 requires "intent," and he claims the
evidence does not support a finding that he intended to make misrepresentations
as to insurance matters. He also argues
that the OCI hearing examiner acted capriciously in refusing to consider
evidence that OCI had imposed lesser penalties on others whose behavior was as
bad as, or worse than, his own. We
consider each of these arguments in turn.
1) Whether § 628.34, Stats.
applies.
Section 628.34, Stats., is captioned "Unfair
marketing practices." Subsection
(1)(a) is titled "Misrepresentation ... Conduct forbidden," and reads
as follows:
No
person who is or should be licensed under chs. 600 to 646, no employe or agent
of any such person, no person whose primary interest is as a competitor of a
person licensed under chs. 600 to 646, and no person on behalf of any of the
foregoing persons may make or cause to be made any communication relating to an
insurance contract, the insurance business, any insurer or any intermediary
which contains false or misleading information, including information
misleading because of incompleteness.
Filing a report and, with intent to deceive a person examining it,
making a false entry in a record or wilfully refraining from making a proper
entry, are "communications" within the meaning of this
paragraph. No intermediary or insurer
may use any business name, slogan, emblem or related device that is misleading
or likely to cause the intermediary or insurer to be mistaken for another
insurer or intermediary already in business.
Markwalder
argues that he was not engaged in "marketing" because his alleged
wrongdoing occurred after clients had already retained him. However, Markwalder ignores
§ 990.001(6), Stats. That section provides:
The titles to subchapters, sections,
subsections, paragraphs and subdivisions of the statutes and history notes are
not part of the statutes.
Thus,
the title of the statute is irrelevant.
Section 628.34(1)(a) is clear and unambiguous; it prohibits a person
licensed under chs. 600 to 646, Stats.,
from making misrepresentations as to insurance contracts, the insurance
business or an insurer or intermediary.
2)
Whether § 628.34(1)(a), Stats.,
requires "intent."
Markwalder argues that
§ 628.34(1)(a), Stats.,
requires "intent" to do the prohibited acts. He claims that because of his depression and
alcohol dependency, he could not form the requisite "intent." We disagree.
The first sentence of
§ 628.34(1)(a), Stats., sets
forth what is prohibited: "No
person ... licensed under chs. 600 to 646 ... may
make ... any communication relating to an insurance
contract, the insurance business, any insurer or any
intermediary which contains false or misleading
information ...." The second
sentence makes clear that "[f]iling a report and, with intent to deceive a
person examining it, making a false entry in a record or wilfully refraining from
making a proper entry, are `communications' within the meaning of this
paragraph." However, the fact that
intentional deceptions are included in the term "communications" does
not mean that only intentional deceptions are
"communications." Markwalder erroneously
reasons from the specific to the general.
Further, this interpretation renders the phrase "with intent to
deceive" superfluous. If intent
were necessary to the first sentence, there would be no reason to specify
"intent" in the second. Because
superfluity is to be avoided whenever possible, Kollasch v. Adamany, 104 Wis.2d 552, 563, 313
N.W.2d 47, 52 (1981), we reject this interpretation.[2]
3)
Whether the disposition was "arbitrary and capricious."
Markwalder argues that
the hearing examiner erred when she refused to consider his evidence that the
punishment imposed was disproportionate to punishment imposed in other
cases. He contends that this failure
violates § 227.57(8), Stats.,
which provides that reversal is required where OCI's disposition is
"inconsistent with ... prior agency practice." Markwalder concludes that the hearing
examiner's decision was "arbitrary and capricious." We reject this argument.
The record discloses
that, although the hearing was continued by one month, Markwalder first sought
to present the comparative punishment information after the hearing was
closed. OCI argues that we should not
consider this evidence because it did not have an opportunity to respond at the
hearing. However, OCI also presented
evidence to the hearing examiner that the other cases were
distinguishable. We do not reach that
issue because we agree that Markwalder's presentation was untimely.
Further, the disposition
was not "arbitrary and capricious."
Markwalder's therapist testified that although Markwalder's depression
was lifting, he had still failed to control his drinking problem. The therapist testified that it was
"just as well that ... [Markwalder] refrain from that [insurance]
business" at the present time.
CONCLUSION
OCI has an obligation to
protect the people of Wisconsin from insurance agents who engage in unlawful
practices. From the point of view of
public safety, it is irrelevant whether the agent's wrongdoing stems from personal
problems, or whether the agent lacked volitional "intent" to commit
bad acts. The legislature has made
clear that
the
commissioner may revoke, suspend or limit in whole or in part the license of
any intermediary if the commissioner finds that the licensee is unqualified as
an intermediary ... or has repeatedly or knowingly violated an
insurance statute ... or if the intermediary's methods and practices
in the conduct of business endanger ... the legitimate interests of
customers and the public....
Section
628.10(2)(b), Stats. Markwalder admits to business practices
which "endanger" customers and the public, and admits to
"repeated" violations of behavior prohibited under § 628.34, Stats. (i.e., he admits to making
repeated false and misleading communications).
OCI acted correctly.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[2] See also § 628.10(2)(b), Stats., quoted in the last paragraph of this opinion. That statute permits OCI to revoke an intermediary's license for an intermediary's "repeated[] or knowing[]" violations. (Emphasis added.) If only intentional (i.e., "knowing") violations counted, there would be no reason to distinguish between "repeated" and "knowing."