In The Matter of Earl Turner Carr
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 1851 IN THE MATTER OF EARL TURNER CARR NOY Judgment Rendered 9 2011 On Appeal from the 19 Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 585 550 The Honorable Todd Hernandez Judge Presiding Terrel J Broussard New Orleans La and Attorneys for Appellant Louisiana Department of Insurance through James J Donelon Barry E Ward Baton Rouge La Richard P Ieyoub Attorney for Appellee Baton Rouge La Earl Turner Carr BEFORE CARTER C GAIDRY AND WELCH JJ J CARTER C J The Louisiana Department of Insurance LDOI appeals a judgment of the district court that overturned the decision of the Division of Administrative Law DAL and ordered that Earl Turner Carr should be allowed to work as a public adjuster FACTS AND PROCEDURAL HISTORY Carr began working as a public adjuster in Louisiana in 2000 At that time adjusters were not regulated or required to be licensed In 2006 the Louisiana Legislature enacted provisions that required adjusters to be licensed by the LDOI In compliance with the new regulations Carr submitted his application for licensure The licensure application sets forth seven background questions including whether the applicant has a prior felony conviction Carr responded affirmatively disclosing that in 1996 he pleaded guilty to one count of pension fund fraud in violation of title 18 U C S 664 The application further questions whether the applicant has applied for a waiver under title 18 U C S 1033 1033 waiver which provides that a person who has committed certain enumerated offenses may engage or participate in the business of insurance only if he has obtained the written consent of the appropriate insurance regulatory official Carr indicated that he had requested such a waiver and attached his request to his licensure application Within the LDOI 1033 waiver requests are handled by the fraud division The division investigates the request then presents the request to a 1033 committee and the Insurance Commissioner The committee makes a recommendation and the Insurance Commissioner decides whether to grant or deny the request Pending action on his waiver request Carr licensure s it application was held in abeyance After reviewing Carr 1033 waiver request and s receiving the committee recommendation Insurance Commissioner James J s Donelon denied Carr a 1033 waiver Carr requested a review hearing before the DAL pursuant to Louisiana Revised Statutes Annotated section 1700 22 The DAL affirmed the s Commissioner decision to deny the waiver Carr then petitioned the district court for review pursuant to Louisiana Revised Statutes Annotated section 49 964 arguing that title 18 U C S 1033 does not apply to public adjusters because they are not engaged in the business of insurance and alternatively that the decision of the Insurance Commissioner was arbitrary and capricious The district court found that public adjusters are not engaged in the business of insurance as defined by title 18 U C S 1033 and overturned the decision of the DAL The district court further ordered that Carr should be allowed to work as a public adjuster The LDOI now appeals the decision of the district court Carr has answered the appeal seeking an award of attorney fees and costs and further contending that the LDOI appeal is frivolous thereby warranting damages costs and attorney s fees STANDARD OF REVIEW The Louisiana Administrative Procedure Act APA governs judicial review of a final decision in an agency adjudication providing that The court may affirm the decision of the agency or remand the case for further proceedings The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings inferences conclusions or decisions are 1 In violation of constitutional or statutory provisions 2 In excess of the statutory authority of the agency The letter that Carr received informing him of the denial was signed by the LD01 s executive counsel however the testimony at the hearing established that the ultimate decision in every 1033 waiver case is made by the Insurance Commissioner ki 3 Made upon unlawful procedure 4 Affected by other error of law 5 Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion or 6 Not supported and sustainable by a preponderance of the evidence as determined by the reviewing court In the application of this rule the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review Where the agency has the opportunity to judge the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not due regard shall be given to the agency s determination of credibility issues La Rev Stat Ann 49 964G Any one of the six bases listed in the statute is sufficient to modify or reverse an agency determination Wild v State Dept ofHealth and Hospitals 08 1056 La App 1 Cir 12 7 So 3d 1 4 The APA further specifies that 08 23 judicial review shall be conducted by the court without a jury and shall be confined to the record La Rev Stat Ann 964F 49 When reviewing a final administrative decision the district court functions as an appellate court Maraist v Alton Ochsner Medical Foundation 022677 La App 1 Cir 5 879 So 2d 81 817 Once a final judgment is rendered by 04 26 5 the district court an aggrieved party may seek review by appeal to the appropriate appellate court La Rev Stat Ann 965 49 On review of the district court s judgment no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the courts of appeal Maraist 879 So 2d at 817 Consequently this court will conduct its own independent review of the record in accordance with the standards provided in Section 49 964G 4 DISCUSSION sPublic Adjuster Act is set forth in Louisiana Revised Statutes Louisiana Annotated 1691 22 et seg and governs the qualifications and procedures for the licensing of public adjusters The Act defines a public adjuster as one who engages in public adjusting which means either a Investigating appraising or evaluating and reporting to an insured in relation to a firstparty claim for which coverage is provided by an insurance contract that insures the property of the insured Public adjusting does not include acting in any manner in relation to claims for damages to or arising out of the operation of a motor vehicle Public adjusting does not include any activities which may constitute the unauthorized practice of law Nothing in this Part shall be considered as permitting the unauthorized practice of law b Advertising for employment as a public adjuster of insurance claims or soliciting business or representing himself to the public as a public adjuster of firstparty insurance claims for losses or damages arising out of policies of insurance that insure real or personal property La Rev Stat Ann 1692 22 7 8 A person wishing to hold himself out as a public adjuster must apply to the Insurance Commissioner for a license using the application prescribed by the Insurance Commissioner La Rev Stat Ann 1693 221694 Before issuing a public adjuster license the Insurance Commissioner must find among other things that the applicant When applicable has the written consent of the commissioner of insurance pursuant to title 18 U 1 or any successor statute C S 033 regulating crimes by or affecting persons engaged in the business of insurance whose activities affect interstate commerce La Rev Stat Ann 5 1695A 22 As explained in Donelon v Louisiana Div of Admin Law ex rel Wise 522 F 564 565 5th Cir 2008 3d Congress enacted 18 U C S 1033 as part of the Violent Crime Control and Law Enforcement Act of 1994 the Act which included criminal and civil enforcement provisions aimed at white collar and insurance fraud Engaging in the insurance business with a prior felony conviction making 5 false material statements and embezzlement are among insurance related crimes defined by the statute Section 1033 allows a person who has been convicted of 2 e any offense enumerated in the statute as well as any criminal felony involving dishonesty or a breach of trust to engage in the insurance business only if the person has the written consent of any insurance regulatory official authorized to regulate the insurer Citations and footnote omitted The interpretation of a statute begins with the language of the statute itself Denham Springs Economic Development Dist v All Taxpayers Property Owners 041674 La 2 894 So 2d 325 330 When a law is clear and unambiguous 05 4 and its application does not lead to absurd consequences the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature Denham Springs Economic Development Dist 894 So 2d at 330331 Pursuant to the standard rules for statutory construction developed in the jurisprudence 1 it is presumed that every provision of law was intended to serve some useful purpose 2 it is not presumed that the lawmaker intended for any part of a law to be meaningless 3 the lawmaker is presumed to have enacted the law with full knowledge of all other laws pertaining to the same subject matter 4 it is the duty of the courts to interpret a provision of law so as to harmonize and reconcile it with other provisions pertaining to the same subject matter and 5 when a law is susceptible to two or more interpretations that which affords a reasonable and practical effect to the entire act is preferred to one that renders part of the act nugatory SEMO Inc v Board of Com for Atchafalaya Basin Levee rs Dist 072571 La App 1 Cir 6 993 So 2d 222 225 08 Additionally rendering the whole or a part of a law meaningless is the last option available to a court when it interprets a law SEMO 993 So 2d at 225 226 Where a statute is ambiguous and susceptible of two constructions the courts will provide the construction that best comports with the principles of reason justice on and convenience for it is presumed that the legislature intended such construction of its language as would avoid injustice oppression or absurd consequences SEMO 993 So 2d at 226 The specific language placed at issue here is Louisiana Revised Statute Annotated section 22 srequirement that an applicant have a 1033 waiver 1695A hen w applicable Carr takes the position that the waiver is applicable only in accordance with the terms of 18 U C S business of insurance 1033 which limits itself to those in the Carr further argues that since public adjusters are not engaged in the business of insurance the 1033 waiver is not applicable to him through Section 1695A Carr contends that the legislature could only require public adjusters to obtain 1033 waivers if it defined engaged in the business of insurance for purposes of the Public Adjuster Act and since the legislature did not Section 1695A was unnecessarily or mistakenly included in the Act Based on the plain language of Section 1695A the waiver under title 18 C S U 1033 regulating crimes by or affecting those engaged in the business of insurance is applicable to public adjusters If the applicant has not committed such a crime the waiver is not applicable We decline to interpret Section 1695A as Carr suggests so as to render the provision meaningless Through Section 695A 1 the 1033 waiver is a statutory prerequisite for those who have committed certain crimes such as Carr to obtain a public adjusters license The district court erred as a matter of law in finding otherwise Carr contends that even if a waiver is required denial of his waiver request was arbitrary and capricious and should be overturned See La Rev Stat Ann 5 964G 49 A decision is arbitrary and capricious if there is no rational basis for the action taken Bowers v Firefighter Retirement System 081268 La s 09 17 3 6 So 3d 173 176 VA The testimony presented at the administrative hearing establishes that the LDOI followed its normal procedure in reviewing Carr waiver request s Once received Carr request was referred to the LDOI fraud division where it was s s reviewed to determine that it was complete and that the information contained therein was true and correct A background check was run through the National Crime Information Center maintained by the FBI which revealed nothing further than the information set forth in Carr application and waiver s request The Director of the Fraud Section then scheduled a meeting with the 1033 committee and the Insurance Commissioner At the meeting the director presented the information surrounding Carr s One of the committee members who reviewed Carr request testified at s request the administrative hearing that Carr conviction was reviewed in detail paying s particular attention to how the offense related to what the LDOI considers dishonesty and breach of trust and also considering Carr narrative explaining the s circumstances of the offense A second committee member indicated that the committee fully considered all of the exculpatory information contained in Carr s file including the numerous letters of recommendation The committee then collectively recommended to the Insurance Commissioner who was present and privy the to discussions that s Carr request be denied The Insurance Commissioner accepted the committee recommendation and denied Carr s s request After reviewing this matter pursuant to the standards of Louisiana Revised Statutes Annotated section 49 we cannot conclude that the Insurance 964G s Commissioner decision capricious C S U to deny Carr waiver request was arbitrary s and Carr admittedly committed pension fund fraud in violation of title 18 664 which subjects him to the Insurance Commissioner sdiscretionary 8 authority as to whether a 1 waiver should be granted 033 The decision was reached after thorough review in accordance with LDOI standard internal s procedures and after considering all of the character evidence submitted Although Carr points out that two others with criminal pasts have received 1033 waivers the Insurance Commissioner was within his authority to distinguish the nature of those crimes obstruction of justice and possession of cocaine from Carr crime of s pension fund fraud We find that a rational basis exists for the Insurance sdiscretionary action in denying the 1033 waiver Commissioner CONCLUSION For the foregoing reasons the district court erred in reversing the decision of the DAL Accordingly the judgment of the district court is reversed and the decision of the DAL is reinstated For the same reasons the relief requested in s Carr answer to the appeal is denied Costs of this appeal are assessed to Earl Turner Carr Jr DISTRICT COURT ADMINISTRATIVE APPEAL DENIED LAW JUDGMENT JUDGMENT REVERSED DIVISION OF REINSTATED ANSWER TO
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