American Ins. Ass'n v. State Indus. Com'n

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American Ins. Ass'n v. State Indus. Com'n
1987 OK 107
745 P.2d 737
Case Number: 59963
Decided: 11/03/1987
Supreme Court of Oklahoma

AMERICAN INSURANCE ASSOCIATION, PETITIONER,
v.
STATE INDUSTRIAL COMMISSION AND ASSOCIATED MOTOR CARRIERS, SELF INSURANCE ASSOCIATION, RESPONDENT.

Proceeding for Review of a Decision by the Workers' Compensation Court.

¶0 A proceeding by an association of insurance carriers to review an order by the Workers' Compensation Court en banc which approved the application of a self-insurance association for a license as a group self-insurer.

Order Vacated and Cause Remanded for Reconsideration in Light of After-Enacted Legislation.

Larry Derryberry, Derryberry, Duncan, Gray & Quigley, Oklahoma City, for petitioner.

Francis S. Irvine, Horace G. Rhodes, Don J. Gutteridge, Jr., Kerr, Irvine & Rhodes, Oklahoma City, for respondent.

Gary Payne, Oklahoma City, for amicus curiae Alliance of American Insurers.

Robert Henry, Henry, Henry & Henry, Shawnee, for amicus curiae.

OPALA, Justice.

[745 P.2d 738]

¶1 The dispositive issue - resolved here by an affirmative answer - is whether afterenacted legislation, 85 O.S.Supp. 1984 §§ 61 and 177 and 85 O.S.Supp. 1986 §§ 61 , 66.2 and 149.2 ,

¶2 Respondent, Associated Motor Carriers Self-Insurance Association [Motor Carriers], applied to the Workers' Compensation Court for a license as a group self-insurance association pursuant to the terms of 85 O.S. 1981 § 149.1 .

¶3 Some time later, Petitioner, American Insurance Association [American], which asserted an interest in Motor Carriers' application for a license that would pool its [745 P.2d 739] members' resources to meet their workers' compensation obligation, was allowed to intervene and to challenge the validity of the pertinent statute. American, a trade association composed of insurance companies writing workers' compensation coverage, premised its standing to intervene upon a claim to representing the public's interest. Its attack on § 149.1 rested below upon four grounds.

¶4 The Workers' Compensation Court en banc upheld the constitutionality of § 149.1 and approved the Motor Carriers' application for a license as a group self-insurance association. American, urging the same attack as that advanced in the trial tribunal, now seeks review of the licensing order.

¶5 During the pendency of this proceeding additional provisions, which regulate group self-insurance, were passed in 1984 and 1986 and one of these was later amended in 1986, although § 149.1 has remained in force in its original verbal form.

¶6 The initial question we must determine is whether the controversy sought to be presented has been rendered moot, in whole or in part, by the passage of afterenacted legislation.

[745 P.2d 740]

¶7 The principle of repeal by implication, though not favored in law inasmuch as all statutory provisions must be given effect, if possible,

¶8 Unless there be present on review some property or liberty interest which requires that we apply to the accrued or vested rights in controversy the law in force at a fixed point in time that is anterior to its most recent change,

¶9 The trial tribunal's order is accordingly vacated and the cause remanded with directions to afford the petitioner (American) full opportunity to recast its challenges and direct its arguments to § 149.1, to be construed together with all pertinent afterenacted legislative provisions.

¶10 DOOLIN, C.J., HARGRAVE, V.C.J., and HODGES, LAVENDER, SIMMS, KAUGER and SUMMERS, JJ., concur.

Footnotes:

1 The terms of 85 O.S.Supp. 1986 § 61 provide in pertinent part:

"An employer shall secure compensation to his employees in in one of the following ways: (d) By furnishing satisfactory proof to the Administrator of the employer's financial ability to pay such compensation. The Administrator, pursuant to rules adopted by the Court for an individual self-insured or own risk carrier or a group pool association, shall require an employer that has: *

* *

(e) The provisions of this title shall not be construed to limit or restrict the ability of political subdivisions of this state or employers subject to the provisions of the Workers' Compensation Act from joining together to form group pool associations pursuant to law or rules promulgated by the Court." [Emphasis supplied.]

The terms of 85 O.S.Supp. 1986 § 66.2 provide in pertinent part:

"A. There is hereby created the `Group Self-Insurance Association Guaranty Fund Board'. The Board shall have supervision over the administration and operation of the Group Self-Insurance Association Guaranty Fund." Subdivision B of § 66.2 pertains to the membership of the Board; Subdivisions C - I prescribe procedures for funding the Group Self-Insurance Association Guaranty Fund and for making claims against it.

The terms of 85 O.S.Supp. 1986 § 149.2 provide:

"The Workers' Compensation Court shall adopt rules permitting two or more group self-insurance associations to pool their liabilities under this act for the purpose of providing such group self-insurance associations specific and aggregate excess insurance."

2 The terms of 85 O.S. 1981 § 149.1 provide:

"The Worker's Compensation Court shall adopt rules permitting two or more employers not otherwise subject to the provisions of Section 149 of Title 85 of the Oklahoma statutes to pool together liabilities under this Act for the purpose of qualifying as a group self-insurer and each such employer shall be classified as a self-insurer."

By this statute the legislature gave the Workers' Compensation Court certain rule-making powers and placed in it authority to regulate the new group self-insurance associations.

3 Motor Carriers applied for a license as a group self-insurance association pursuant to Rule 39 of the Workers' Compensation. Rule 39, § 4 , 85 O.S. 1981, Ch. 4, App., provides in pertinent part:

"Application for Approval as Group Self-Insurance Association Requirements . . . Two or more employers having a common interest . . . may be approved by the Court as a group self-insurance association for the purpose of entering into agreements to pool their liabilities under the act. . . ."

4 See Attorney's General Opinion No. 82-186 (October 25, 1982). The Attorney General opined that § 149.1 - which authorizes the Workers' Compensation Court to adopt rules permitting two or more employers to pool together liabilities for the purpose of qualifying as a group self-insurer - is a product of unconstitutional delegation of legislative power to the judiciary since the Act fails to express either the lawmakers' policy or any other guidelines for the Workers' Compensation Court to follow.

5 American grounded its attack on 85 O.S. 1981 § 149.1 upon four separate arguments: (1) The granting to the Workers' Compensation Court of power constitutionally vested in the executive branch is a violation of the Oklahoma Constitution. (2) The title to 85 O.S. 1981 § 149.1 is defective because it does not reflect the substance of the enactment. (3) House Bill 1259, of which § 149.1 was a part, contains diverse and unconnected topics and is hence violative of Art. V § 57, Okl.Const. (4) Section 149.1 does not provide sufficient standards to guide the Workers' Compensation Court in exercising its delegated power.

6 The after-enacted legislation, 85 O.S.Supp. 1984 §§ 61 and 177 and 85 O.S.Supp. 1986 §§ 61 , 66.2 , 149.2 and 177 , covers the very same area of regulation for self-insurance associations as did the earlier statute, 85 O.S. 1981 § 149.1 . The latter is the target of American's constitutional attack.

The title to the 1984 amendatory statutes, 85 O.S.Supp. 1984 §§ 61 and 177 (Okl.Sess.L. 1984, Ch. 258), sets forth in greater detail the ambit of the enactment:

"AN ACT RELATING TO WORKERS' COMPENSATION; AMENDING 85 O.S. 1981, SECTIONS 61 AND 177 , AS AMENDED BY SECTION 7, CHAPTER 271, O.S.L. 1982 (85 O.S. SUPP. 1983, SECTION 177 ); PROVIDING CERTAIN WAYS THAT AN EMPLOYER MAY INSURE AGAINST LIABILITY; PERMITTING SELF-INSURANCE IN CERTAIN SITUATIONS; MODIFYING RESTRICTIONS; PROVIDING FOR PENALTY; PROVIDING FOR GROUP POOL ASSOCIATIONS; PROVIDING FOR THE WORKERS' COMPENSATION ADMINISTRATION FUND; MODIFYING USE OF THE FUND; PROVIDING CERTAIN PROCEDURES; PROVIDING FOR TRANSFER OF CERTAIN MONIES; PROVIDING OPERATIVE DATES; AND DECLARING AN EMERGENCY." [Emphasis supplied.]

See also the title to the 1986 amendatory statutes, 85 O.S.Supp. 1986 §§ 61 , 66.2 and 149.2 (Okl.Sess.L. 1986, Ch. 222) which reflects in pertinent part:

"* * * CREATING THE INDIVIDUAL SELF-INSURED GUARANTY FUND BOARD AND THE GROUP SELF-INSURANCE ASSOCIATION GUARANTY FUND BOARD; PROVIDING PROCEDURES RELATED THERETO; * * *"

7 A case can become moot by reason of new or amendatory legislation which supersedes existing legislation. See Thomas v. Zoning Bd. of Appeals, Etc., 381 A.2d 643, 646-647 [Me. 1978] and James v. City of Round Rock, 630 S.W.2d 466, 468 [Tex. App. 1982].

As a general rule, an action will be dismissed if the issues are or have become moot. A case is moot when the issue sought to be resolved has become abstract and hypothetical - no longer part of a lively "case or controversy" between antagonistic demands. Lawrence v. Cleveland County Home Loan Auth., Okl., 626 P.2d 314, 315 [1981]. Although there are two well-recognized exceptions to the doctrine - public-interest and the likelihood-of-recurrence exceptions - which have met with our approbation, Lawrence, supra; Payne v. Jones, 193 Okl. 609, 146 P.2d 113, 116-117 [1944] and Peppers Refining Co. v. Corporation Commission, 198 Okl. 451, 179 P.2d 899, 901 [1947], neither of them is properly invocable here as a basis for securing appellate review. See Westinghouse Elec. v. Grand River Dam Auth., Okl., 720 P.2d 713, 720 [1986].

8 Greer County Election Board v. Elliott, 26 Okl. 546, 109 P. 731, 732 [1910]; Webb v. Oklahoma Gas & Electric Co., 88 Okl. 183, 211 P. 932 [1923]; Goldsmith v. City of Ardmore, 136 Okl. 201, 277 P. 230, 231 [1929]; Maxwell v. City of Tulsa, 145 Okl. 155, 292 P. 66 [1930]; Westgate Oil Co. v. Refiners Production Co., 172 Okl. 260, 44 P.2d 993 [1935]; Christensen v. Quality Oil Co., 205 Okl. 212, 236 P.2d 673 [1951]; Dutton v. City of Oklahoma City, 208 Okl. 208, 254 P.2d 995 [1953]; Duncan v. Sims, Okl. 277 P.2d 145, 146 [1954]; Post v. Kingdom Hall of Jehovah's Witnesses, Okl., 283 P.2d 528, 529 [1955] and Lawrence v. Cleveland County Home Loan Authority, Okl., 626 P.2d 314-316 [1981].

9 Citicorp. Sav. & Trust Co. v. Banking Bd., Okl., 704 P.2d 490, 494 [1985]; City of Sand Springs v. Dept. of Pub. Wel., Okl., 608 P.2d 1139, 1151 [1980]; Ex parte Burns, 80 Okl.Cr. 270, 202 P.2d 433, 435 [1949]; Smith v. State Board of Education, 190 Okl. 556, 126 P.2d 241, 242 [1942] and Ritchie v. Raines, Okl.Cr., 374 P.2d 772, 775-776 [1962].

10 After-enacted legislation may have the effect of occupying the entire field of the subject covered by an earlier statute. State v. Empire Oil Corporation, Okl., 353 P.2d 130, 134 [1960]; In re Layman's Estate, 208 Okl. 174, 254 P.2d 784, 786 [1953]; see also, Creek County v. Robinson, 114 Okl. 163, 245 P. 584, 586 [1926]; City of Pawhuska v. Pawhuska Oil & Gas Co., 64 Okl. 214, 166 P. 1058, 1060 [1917] and Consumers Co-op Ass'n v. Titus, 201 Okl. 344, 205 P.2d 1162, 1163, [1949].

11 Ritchie v. Raines, supra note 9, and Ex parte Burns, supra note 9.

12 In re Layman's Estate, supra note 10 at 786; Ritchie v. Raines, supra note 9 and City of Sand Springs v. Dept. of Pub. Wel., supra note 9.

13 See Art. 5 §§ 52 and 54, Okl.Const; see in this connection First National Bank of Pauls Valley v. Crudup, Okl., 656 P.2d 914, 916-917 [1983].

14 Diffenderfer v. Cent. Baptist Church of Miami, Fla., Inc., 404 U.S. 412, 414-415, 92 S. Ct. 574, 575-576, 30 L. Ed. 2d 567 [1972] and Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 282-283, 89 S. Ct. 518, 526, 21 L. Ed. 2d 474 [1969].

15 An appellate forum cannot exercise first-instance jurisdiction by making initial decisions on facts or law. When necessary findings are absent, the case must be remanded with directions that they be made by the trial court. Davis v. Gwaltney, Okl., 291 P.2d 820, 824 [1955] and Matter of Estate of Bartlett, Okl., 680 P.2d 369, 377 [1984]; see also Thomas v. Zoning Bd. of Appeals, supra note 7 at 646.

16 We do not pass here on the constitutionality either of § 149.1 or of the later-passed provisions. Claims based upon potential invasion of rights by later-enacted legislation are not enough to warrant judicial intervention. State of Arizona v. State of California, 283 U.S. 423, 462, 51 S. Ct. 522, 528, 75 L. Ed. 1154, 1169 [1931].