NC FIRE INS. RATING BUREAU v. Ingram

224 S.E.2d 229 (1976)

29 N.C. App. 338

NORTH CAROLINA FIRE INSURANCE RATING BUREAU v. John Randolph INGRAM, Commissioner of Insurance for the State of North Carolina.

No. 7510SC621.

Court of Appeals of North Carolina.

May 5, 1976.

*231 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Isham B. Hudson, Jr., Raleigh, for appellant, Commissioner of Insurance.

William T. Joyner and James E. Tucker, Raleigh, for plaintiff, North Carolina Fire Insurance Rating Bureau.

CLARK, Judge.

The pivotal question on appeal is whether the Superior Court had jurisdiction to act on the motion by the Bureau for an injunction. We find that it did not have such jurisdiction. The procedure for appeal from orders of the Commissioner of Insurance is set out in Chapter 58, Insurance, of the General Statutes. G.S. 58-9.3(a) provides in part as follows:

"Any order or decision made, issued or executed by the Commissioner, except an order to make good an impairment of capital or surplus or a deficiency in the amount of admitted assets and except an order or decision that the premium rates charged or filed on all or any class of risks are excessive, inadequate, unreasonable, unfairly discriminatory or are otherwise not in the public interest or that a classification assignment is unwarranted, unreasonable, improper, unfairly discriminatory, or not in the public interest, shall be subject to review in the Superior Court of Wake County . . .." (Emphasis added.)

G.S. 58-9.4 provides:

"Any order or decision of the Commissioner that the premium rates charged or filed on all or any class of risks are excessive, inadequate, unreasonable, unfairly discriminatory or are otherwise not in the public interest or that a classification or classification assignment is unwarranted, unreasonable, improper, unfairly discriminatory or not in the public interest may be appealed to the North Carolina Court of Appeals by any party aggrieved thereby.. . ." (Emphasis added.)

G.S. 58-9.5 provides further that:

"Appeals to the North Carolina Court of Appeals pursuant to G.S. 58-9.4 shall be subject to the following provisions: * * * * * * (10) An appeal under this section shall operate as a stay of the Commissioner's order or decision until said appeal has been dismissed or the questions raised by the appeal determined according to law." (Emphasis added.)

We find that without question the matter involved in this appeal was one continuous rate filing activity. When the Bureau gave notice of appeal to this Court, subject matter jurisdiction over both the 19% and 3.4% decrease became vested in the Court of Appeals, through the terms of G.S. 58-9.3, and 58-9.4. Reading these sections in para materia it is quite clear that the Court of Appeals and not the Superior Court of Wake County has subject matter jurisdiction of this case.

If the Commissioner of Insurance proposes to take action in violation of G.S. 58-9.5(10) which stays his order or decision pending appeal, the proper remedy for the plaintiff Bureau was not to seek an injunction in the Superior Court, but to seek in the Court of Appeals the issuance of the prerogative writ of supersedeas under G.S. 7A-32(c) and App.R. 23.

The order of the Superior Court granting the preliminary injunction was error, and the same is vacated. This cause is remanded to the Superior Court, Wake County, for entry of an Order dismissing plaintiff's action.

Reversed and remanded.

BROCK, C. J., and HEDRICK, J., concur.