State Ex Rel. Com'r of Ins. v. Rate Bureau

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403 S.E.2d 597 (1991)

STATE of North Carolina ex rel. COMMISSIONER OF INSURANCE, Appellee, v. NORTH CAROLINA RATE BUREAU, Appellant. In the Matter of a Filing Dated July 1, 1987 by the North Carolina Rate Bureau for Revised Automobile Insurance RatesPrivate Passenger Cars and Motorcycles.

No. 9010INS647.

Court of Appeals of North Carolina.

May 7, 1991.

*598 Young, Moore, Henderson & Alvis, P.A. by Charles H. Young, Jr., Marvin M. Spivey, Jr., and R. Michael Strickland, Raleigh, for appellant.

Hunter, Wharton & Lynch by John V. Hunter III, and Parker, Sink & Powers by E. Daniels Nelson, Raleigh, for appellee.

EAGLES, Judge.

The sole question presented here is whether the Commissioner of Insurance erred in failing to order the release of funds placed in escrow pending judicial review of the Commission's 1 February 1988 order. Because this appeal is interlocutory, we dismiss it.

The Rate Bureau appeals from the order of the Commissioner dated 1 March 1990 that denied its motion for the release of funds held in escrow under G.S. 58-36-25. "Fragmentary, piecemeal appeals from interlocutory orders are not usually permitted in this state; they are authorized only when it appears that a substantial right of the appellant will be lost if the order is not reviewed before the case has finally run its course in the trial court." Shuping v. NCNB National Bank, 93 N.C.App. 338, 339-40, 377 S.E.2d 802, 803 (1989). The Supreme Court has defined final and interlocutory orders as follows:

A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.... An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order *599 to settle and determine the entire controversy.

Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (citations omitted).

Here, the effect of the order denying the release of the funds is temporary and not permanent. The Commissioner's order only determines that the funds are not to be released now. It does not purport to determine who is entitled to the money. For these reasons, we hold that the appeal is interlocutory.

The order of the Commissioner is not immediately appealable under either G.S. 1A-1 Rule 54(b) or G.S. 1-277 and 7A-27(d). The Rate Bureau has not shown that it will lose any right here that the law regards as substantial. We fail to see how appellants will be prejudiced if the order remains in effect until the Commissioner concludes the proceedings in this rate filing. Accordingly, this appeal is dismissed.

Additionally, we note that even though an appeal is fragmentary and premature, the appellate court may exercise its discretionary power to express an opinion upon the question which appellant has attempted to raise. Cowart v. Honeycutt, 257 N.C. 136, 140, 125 S.E.2d 382, 385 (1962). Here, we find appellant's reading of G.S. 58-36-25 unpersuasive. Appellants contend that this Court's decision in State of North Carolina ex rel. Commissioner of Insurance v. North Carolina Rate Bureau, 95 N.C.App. 157, 381 S.E.2d 801 (1989), constitutes a "final determination" within the meaning of G.S. 58-36-25. We disagree.

G.S. 58-36-25(b) provides:

Whenever a Bureau rate is held to be unfairly discriminatory or excessive and no longer effective by order of the Commissioner issued under G.S. 58-36-20, the members of the Bureau, in accordance with rules and regulations established and adopted by the governing committee, shall have the option to continue to use such rate for the interim period pending judicial review of such order, provided each such member shall place in escrow account the purportedly unfairly discriminatory or excessive portion of the premium collected during such interim period. Upon a final determination by the Court, the Commissioner shall order the escrowed funds to be distributed appropriately....

Appellant argues that "[j]udicial review of the Commissioner's disapproval Order has been completed and the Order has been vacated." We think that "final determination" in G.S. 58-36-25 means all proceedings arising out of a disapproval order in a rate filing, including proceedings on remand.

In our earlier decision in this matter we vacated and remanded the Commissioner's order so that he could make additional findings. The Commissioner has indicated that he will receive additional evidence when he reconsiders the filing pursuant to our 15 August 1989 decision remanding the matter. Until the Commissioner has concluded his proceedings, there is no final determination as to the validity or invalidity of the Commissioner's order. At this point, it has yet to be decided who is entitled to receive the funds being held in escrow. We believe appellant's reading of "final determination" is contrary to the express language of the statute and frustrates the purpose of holding the funds in escrow. It would be illogical to distribute the funds when the issue of whether they belong to the policyholders or the insurance companies has not yet been decided. Had the Rate Bureau not attempted this interlocutory appeal, that ultimate question might well have been decided before now.

Finally, we note that the Commissioner of Insurance challenges the Rate Bureau's standing to bring this appeal. We find the Commissioner's argument on this question without merit. We note that the Rate Bureau is a "party aggrieved" within the meaning of G.S. 58-2-80. Accordingly, it may challenge orders and decisions of the Commissioner that disapprove premium rates. We see no reason to conclude that the Rate Bureau has standing in this context but not in the context of challenging the distribution of funds under G.S. 58-36-25. Under the Administrative *600 Procedure Act, a "person aggrieved" is defined as "any person or group of persons of common interest directly or indirectly affected substantially in his or its person, property, or employment by an administrative decision." G.S. 150B-2(6). Under the Judicial Review Act, the predecessor to the Administrative Procedure Act, the Supreme Court said: "The expression `person aggrieved' has no technical meaning. What it means depends on the circumstances involved." In re Halifax Paper Co., 259 N.C. 589, 595, 131 S.E.2d 441, 446 (1963). Here, we think that the Rate Bureau has standing in its capacity as the representative of its members collectively.

For the reasons stated, we dismiss this appeal as interlocutory.

Appeal dismissed.

PHILLIPS and WYNN, JJ., concur.