David Boyd, et ux. v. The Goodman

- Gable

- Gould Company , No. 2139, September Term

2019. Opinion by Eyler, James R., J. Administrative Law
- Collateral Estoppel Facts : In 2016, a fire destroyed the home of David Boyd and Penny Coco

- Boyd (collectively “the B oyds”), appellants. They gave notice of their loss to State Farm Fire and Casualty Company (“State Farm”), their homeowners’ insurer. They later engaged a public adjuste r, The Goodman

- Gable

- Gould Co., d/b/a Goodman

- Gable

- Gould Co./Adjusters International ( “GGG”), appellee, to adjust their claim with State Farm in exchange for a fee of six percent of any proceeds collected on their behalf. Unsatisfied with GGG’s services , the Boyds filed a complaint with the Maryland Insurance Administration (“MIA”), alleg ing that GGG, through its agents, engaged in fraudulent and dishonest practices, displayed incompetence, and wrongfully withheld monies from them. The Boyds sought over $100,000 in restitution and the return of insurance proceeds they alleged were being wi thheld by GGG. They also asked the MIA to impose administrative penalties on GGG. While that complaint remained pending, the Boyds filed in the Circuit Court for Montgomery County against GGG a complaint for declaratory judgment, the instant action, seek ing a declaration that they had a legal right to terminate their contract with GGG. After the MIA completed its investigation o f the administrative complaint and issued a preliminary decision in GGG’s favor, the Boyds did not request an administrative hear ing to contest that determination. They filed an amended complaint in the circuit court action adding claims for breach of cont ract, restitution, negligence, and fraud, and seeking compensatory and punitive damages. GGG moved for summary judgment on the ground that the Boyds were collaterally estopped by the MIA decision from pursuing any relief and moved to strike the amended c omplaint. Following a hearing, the circuit court granted GGG’s motions for summary judgment and to strike, concluding respectivel y that the Boyds were collaterally estopped by the MIA decision and that GGG suffered actual prejudice occasioned by the timing of the amendments to the complaint. The Boyds’ motions for reconsideration and to alter or amend were denied. The issues on app eal were whether the court erred in granting summary judgment and erred in striking the amended complaint. Held : The MIA actio n initiated by the Boyds was a complaint, not an “examination” within the meaning of the Insurance Article and implementing regul ations, but the MIA decision was not a quasi

- judicial proceeding, and thus, the Boyds were not collaterally estopped by the dec ision. Moreover, the Boyds were not required to exhaustadministrative remedies before pursuing relief in the circuit court becau se the relevant

factors weighed in favor of concurrent jurisdiction. Thus, the circuit court erred in granting summary judgmen t. Because the circuit court struck the amended complaint on the ground of collateral estoppel, the court also erred in that ruli ng.Circuit Court for Montgomery C oun ty

Case No. 444997 V REPORTED IN THE COURT OF SPECIAL APPEALS

OF MARYLAND
No. 2139 September Term, 20 19

______________________________________

DAVID BOYD, ET UX.

v. THE GOO DMAN

- GABLE

- GOULD COMPANY D/B/A GOODMAN

- GA BL E

GOULD/ADJUSTERS INTERNATIONAL

______________________________________ Fader , C.J. Beachley , Eyler , James R

. (Senior Judge, Specially Assigned) , JJ.

______________________________________ Opinion b y Eyler , James R., J.

___________________ __ _________________ Filed: May 27, 2021In 2016, a fire destroyed the home of David Boyd and Penny Coco

- Boyd

(collectively “the Boyds”), appellants. They gave notice of their loss to State Farm Fire and Casualty Company (“S ta te Farm”) , their homeowners’ insurer . T he y later engaged a public adjuster, The Goodman

- Gable

- Gould Co., d/b/a Goodman

- Gable

- Gould Co. /Adjusters International (“GGG”), appellee, to adjust their claim with State Farm in exchange for a fee of six percent o f any proceeds collected on their behalf

. Unsatisfied with GGG’s services, the Boyds ultimately filed a complaint with the Maryland Insurance Administration (“MIA”), alleging that GGG, through its agents, engaged in fraudulent and dishonest practices, dis pl ayed incompetenc e , and wrongfully withh el d monies from them

. The Boyds sought over $100,000 in restitution and the return of insurance proceeds they alleged were being withheld by GGG

. They also asked the MIA to impose administrative penalties on GGG.
W hi le that complaint remained pending, the B oyds filed i n the Circuit Court for Montgomery Count y against GGG and State Farm, 1 a complaint for declaratory judgment, the instant action, seeking a declaration that they had a legal right to terminate their con tr act with GGG

. After the MIA completed i ts investigation of the administrative complaint and issued a preliminary decision in GGG’s favor, the Boyds did not request an administrative hearing to contest that determination

. They filed an amended complaint
i n the circuit court action adding claims fo r breach of contract, restitution, negligence, and fraud, and seeking compensatory and punitive damages.

1 The Boyd s voluntarily dismissed their claim against State Farm on March 29, 2019

.- 2

-

GGG moved for summary judgment on the ground that the Boyds were collaterally estopped by the MIA decision fr om pursuing any relief and moved to str ik e the amended complaint

. Following a hearing, the circuit court granted GGG’s motions for summary judgment and to strike , concluding respectively that the Boyds were collaterally estopped by the MIA decision and t ha t GGG suffered actual prejudice occasio ne d by the timing of the amendments to the complaint

. The Boyds’ motions for reconsideration and to alter or amend were denied. On appeal, the Boyds present six questions, 2 which we have condensed and rephrased as t wo : I. Did the trial court err by grantin g summary judgment in favor of GGG on the ground of collateral estoppel? II. Did the trial court err or abuse its discretion by granting GGG’s motion to strike the amended complaint?

2 The questions as posed by the Boyds are: 1. Did t he trial court misapply provi s io ns of t he Insurance Article concerning a request for an administrativ e hearing pertaining to a proposed examination report of a Maryland Insurance Administration investigation of a public adjuster to the Boyds? 2. Did the tr ial court commit reversible e r ro r in gr an ting GGG’s motion for summary judgment based on collateral e stoppel? 3. Did the trial court deprive the Boyds of procedural due process by denying them an adjudication? 4. Did the trial court commit reversible err or by striking the Amended Comp l ai nt? 5. Di d the trial court commit reversible error by denying the Mot ion to Alter or Amend Judgment? 6. Did the trial court commit reversible error by denying the Motion for Reconsideration of the Order granting GGG’s Moti on to Strike?- 3

-

For the following reasons, w e reverse the grant of summary judgment i n favor of GGG and remand for further proceedings not inconsistent with this opinion. FACTS AND PROCEEDINGS 3 A. Background The Boyds’ property , located at 14001 Gorky Drive in Potomac , was insured by State Farm un de r a homeowners policy

. As pertinent, un d e r “Coverage A

– Dwelling,” the policy provided replacement coverage for the dwelling up to $945,758 and under

“ Coverage A

– Dwelling Extension” additional coverage up to $ 94,576 for “other structures on the reside nc e premises , separated from the dwelling b y clear space ” and not attached to the dwelling, except by a “fence, utility line, or similar connection [

. ] ” On June 13, 2016 , the dwelling on the Property was destroyed by a fire

. An adjacent or adjoining deck co nstructed of Brazilian Ipé Walnut hardw o o d valued at $112,344 was damaged by the fire, but the Boyds believed much of the wood could be salvaged

. A gazebo , driveway , and landscaping on the Property also sustained damage in the fire

. The Boyds’ State Farm i nsurance agent, Amy James, advised them t hat the property was a “total loss ” and would exceed their policy limits. On July 13, 2016 , the Boyds contracted with GGG for it to adjust their claim with State Farm

. The terms of the one - page contract were tha t GGG would assist the Boyds in their eff o r t to recover for the loss to their dwelling and personal property “ for a fee of six

3 Because the B o yd s appea l from a summary judgment, we present the underlying facts in the light most favorable to them. We note, however, that GGG disputes many of these allegations.- 4

-

percent (6%) of the gross amount adjusted or otherwise recovered as a result of said claim or claims” and assist the Boyds to rec ov er additional living expenses (“ALE” ) wit hout any fee

. The Boyds assigned to GGG the right to proceeds paid by State Farm up to the amount of the six percent fee

. With some exceptions, GGG would bear the cost of estimates and any expert opinions necessar y to support the Boyds ’ claim

. Zachary
F orr est, a GGG senior vice president, met with the Boyds to discuss their claim

. He expressed the view that the deck , along with a gazebo that sustained fire damage, should be demolished and rebuilt

. He advised the Bo yd s that they could obtain additional

c o ver age to replace the deck and gazebo under the Dwelling Extension coverage , maximizing their coverage under the policy

. In January 2017, Forrest transmitted to State Farm the Boyds’ estimates for their losses , whi ch were prepared by a building consult a n t r etained by GGG

. The estimates exceeded the Boyds’ policy limits. On March 17, 2017, before State Farm had responded to the estimates , demolition commenced at the Property

. On or about March 18, 2017, the Boyds ’ c on tractors demolished the deck

. Ultima te ly, State Farm paid the Boyds their policy limits under Coverage A

– Dwelling, but only paid about one quarter of the Dwelling Extension Coverage limits because it did not deem the deck to be an “other structure.” As J ames explained in a March 29, 2017 l et ter to Forrest: “the decks on the home are not considered covered under the dwelling extension coverage and are considered part of the main structure

. The dwelling extension portion of the estimate includes the walkw ay , driveway and fence.” In the month s t hat followed that letter , Forrest , in consultation with- 5

-

the Boyds, followed up with James to clarify State Farm’s position relative to the deck

. In June 2017, State Farm denied coverage for the deck as a d welling e x te nsion because it concluded that the de ck was permanently attached to the dwelling and was not separated from the dwelling by a clear space. By January 2018, the Boyds had retained counsel , who sent a demand letter to GGG and gave notice of the Boyds’ in te nt to terminate the ir contract. B. Th e M IA complaint On March 13, 2018, the Boyds, through counsel, filed a “Property & Casualty Complaint [] ” with the MIA. On the complaint form, they designated GGG as the public adjust e r against whom they were register in g their complaint and Forrest as th e ir ag ent

. In the section provided for “BRIEF DETAILS OF YOUR COMPLAINT,” the Boyds cross

referenced a n attached 11

- page “COMPLAINT” with 18 exhibits. The complaint detailed the Boyds’ history with GGG and Forrest; the un successful claim for replacement of th e d eck under the “Dwelling Extension” coverage ; GGG’s retention of insurance proceeds from State Farm; and other issues pertaining to GGG’s handling of their claim. The Boyds alleged that GGG had violated section 10

- 41 0(a)(3), (4), (5) and (9) of the
In s ur anc e ( “ Ins. ” ) Article , 4 authorizing the Insurance Commissioner (“Commissioner”) to suspend or revoke a public adjust e r’s license if it violated the Insurance Article, engaged in fraud or dishonesty, demonstrated inco mp etency or untrustworthiness, or fai l ed to pa y money due on demand

. The relief sought by the Boyds included $112,344 in restitution

4 All references to the Insurance Article are to the 2 01 7 Replacement Volume, unless o th erwise in dicated.- 6

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for the loss of their deck ; “compensation for loss of Replacement Cost reimbursement for their personal property” ; ALE they e xpected to incur ; “additional lands c ap ing

re imbursement” ; and storage fees they had incurred. They also asked the MIA to impose fines on GGG for each violation of the Insurance Article and to issue an order directing GGG to release the funds withheld fro m them

. On April 4, 2018, Andrew Bea t ty , a n M IA “Insurance Investigator , ” wrote to GGG to inform it that it was the subject of a complaint filed by Ms. Boyd and attaching a copy of the complaint. Beatty directed GGG to provide him with a “complete copy of [ its] claim file/log, including copi e s of all correspondence”; copies of photographs and estimates; a “list of all payments received from the insurer, and all disbursements made on the claim”; and to specifically respond to the Boyds’ complaints concernin g the deck damage claim, the personal pr ope rty and landscaping claims, the ALE and storage claims, and the claim that GGG had not released $72,048 in proceeds to them. Beatty advised that he would review GGG’s response pursuant to Ins. §§ 27

- 303 and 27

- 304 a nd COMAR 31.15.07.03. 5 On May 1, 2 0 18 , G GG responded to the Boyd s ’ complaint.

5 Title 27 of the Insurance Article governs “Unfai r Trade Practices and Other Prohibited Practices” and Subtitle 3 of that Title pertains to “Unfair Claim Settlement Practices” by insurers

. See Ins. § § 2 7

- 303 & 27

- 304 (prohibiting an “ in surer, no nprofit health service plan, or health maintenance organizat ion” from engaging in certain practices) . COMAR 31.15.07.03 likewise pertains to unfair claim settlement practices by insurers

. See COMAR 31.15.07.03A (“ a prohibited unfair claim settl e me nt prac ti ce occurs if an insurer commits” certain acts)

.- 7

-

Sometime after June 7, 2018, the Boyds supplemented their complaint with the MIA by submitting a 28

- page “Deck Claim Analysis.” On October 6, 2018, the Boyds, through counse l, wrote to Beatty to determine when h e exp ect ed to complete his investigation and issue a decision “pursuant to
COMAR 31.16 .10.04 .” 6 The Boyds emphasized that simultaneous ly with the MIA Action, they were purs u ing declaratory relief in the circuit court t o terminate their contract with GGG and a vo id any obligation to pay future commissions. By letter dated October 6, 2018, counsel for the Boyds sent a letter to the MIA investigator stating that “any ensuing hearing before the Office of Administrative Heari ng s will produce a ruling which could be co nsider ed binding on the Parties, it would make sense to conclude the administrative process before litigating in Circuit Court.” A little over three weeks later, i n an eight

- page single

- spaced letter, Beatty advi se d the Boyds’ counsel that the MIA had “ co mplete d the review of the issues raised in [their] complaint, . . . [GGG’s] response . . ., the documents contained in [GGG’s] file, and the documents contained in State Farm[’s] . . . claim file” and had “determi ne d that GGG’s actions [were] not in vio l at ion of Maryland insurance law.” The letter addressed each of the Boyd s ’ complaint s relative to the deck claim, the landscaping claim, the content s

6 This re gulation falls under the “Miscellaneous” Subtitle of the MIA regulations applicable to “ carriers that issue or deliver insurance policies or health maint en ance organization contracts i n M aryland .” COMAR 31.16.10.01. The specific regulation cited by the Boy ds pertains to a determination following a complaint investigation. It requires the Commissioner, or his or her designee, to “ document the findings of th e complaint investigation in a d et erminat io n letter ” and provide those findings to “ to the complainant and the carrier that was the subject of the complaint [.]” COMAR 31.16.10.04.- 8

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claim, and the ALE claim. Beatty explained that the MIA’s review o f “the propriety of GGG’s handling of th e c laim” was circumscribed by Ins. § 10

- 41 0 , which specifies the grounds for discipline of a public adjuster. Beatty focused upon four subsections that authorize the MIA to discipline a public adjuster who violates t he Insurance Article; engages in fraudul e nt or di shonest practices; demonstrates incompetency or untrustworthiness; or misappropriates, converts, or unlawfully withholds money that belongs to an insured

. Ins. § 10

- 410(a)(1), (3), (4) & (5). Beatty reasoned t hat though the Boyds were “ not . . . s a ti sfied with GGG’s handling of their claim, GGG’s actions ha[d] not demonstrated a lack of trustworthiness or competence or otherwise been shown to be in violation of the Insurance Article.” Beatty closed by advisin g the Boyds’ attorney: This determinatio n i s subj ect to your clients’ right to a hearing pursuant to the Annotated Code of Maryland, Insurance Article, Section 2

- 210 [ 7 ] and the Code of Maryland Regulations (“COMAR”) 31.02.01

. [ 8 ] To request a hearing you mu st do so in writing and the request must be recei ved by the Insurance Administration within thirty (30) days of the date of this letter

. Such a request shall specify the grounds to be relied upon as a basis for the relief to be demanded at a hearing

. Attac he d please find a copy of the COMAR Regu l at ion th at addresses your right to a hearing

. If a hearing is not timely requested, this determination will be final.

7 Ins. § 2

- 210 governs hearings before the Insurance Commissioner or his or h er designee, and provides, as pe rtinent , that the Commissioner “shall hold a hearing . . . on written demand by a person aggrieved by any act of, threatened act of, or failure to act by the Commissioner or by any report, regulation, or order of the Commi ss ioner[.]” Ins. § 2

- 210(a)(2). He arings ar e to be conducted in accordance with the contested case prov isions of the Administrative Procedure Act. Ins. § 2

- 210(c).

8 COMAR 31.02.01 governs contested case hearings held before the Commissioner or his or he r designee, and contested case h ea rings d el egated to the Office of Administrative Hearings.- 9

-

A copy of COMAR 31.02.01. 03 , 9 an MIA “Hearing Request Form , ” and a “Consumer Questionnaire” w e re attached to the letter. The hearing r e qu est fo rm was prefilled with the Boyds’ attorney’s name; their case number; and their attorney’s address. It had blanks for the Boyds to complete explaining how they were aggrieved, the facts of their case, and wha t relief they were requesting from the M I A. The Boyds did not request a hearing. C. The Circuit Court Proceedings Meanwhile, on March 29, 2018, just two weeks after the Boyds filed their MIA

c omplaint, they filed a “Complaint for Declaratory Judgment” in the circuit court against GGG and S tat e Farm. They sought a declaration that GGG was “contractually obliged to endorse settlement drafts issued by State Farm ” for personal property losses and landscaping damage, in exchange for the Boyds’ payment of the 6 percent commission on those amounts ; t ha t the Boyds had a “lawful basis” to terminate the contract with GGG; that the termination did not require GGG’s written consent; that State Farm must acknowledge the termination of the contract; and that all futur e insurance payments must be made dire ctl y to the Boyds. Because the Boyds sought only declaratory relief, the matter was designated “Track 0 ” in the circuit court’s differentiated case management plan

. Consequently, no scheduling order was issued, and i t was set for trial on December 12, 20 18.

9 COMAR 3 1.02.01.03 pertains to all requests for hearings “except a request for a hearing on a proposed examination report.”- 10

-

About a week after the letter decision in the MIA Action , GGG filed an amended

answer in which it asserted collateral estoppel, “claim and issue preclusion,” and failure to exhaust administrative remedies as affi rm ative defenses. GGG maintained that the

m atter must be “stayed or dismissed” as a result of the MIA Case. It attached Beatty’s letter and the MIA Complaint , with exhibits, to its amended answer. GGG subsequently moved to stay or dismiss the circuit cour t case based upon Beatty’s letter. It arg ue d that the final adjudication in the administrative proceeding would be binding upon the parties and, thus, the circuit court case should be stayed until the MIA Action was finally decided. It further maintained t ha t the administrative remedy was “pri mar y” and, consequently, that the Boyds were obligated to exhaust that remedy before resorting to the circuit court. The Boyds also mo ved to stay the circuit court action. They asserted that they would be requesting a hearing in the MIA Action before the Of fi ce of Administrative Hearings (“OAH”) pursuant to Ins. § 2

- 210 and COMAR 31.02.01 and that because the hearing would be scheduled after the trial in the circuit court action, a stay was appropriate to permit the a dm inistrative proceeding to conclude p rio r to the trial in the circuit court. The Boyds asked the court not to stay discovery, however. Both motions to stay were denied.- 11

-

On November 26, 2018, the circuit court postponed the trial date until April 17,
2 01 9. 10
Over three months before trial , o n Januar y 7, 2019, the Boyds filed an amended complaint. They added 108 general factual allegations and four new counts

. In Count I , they asserted that GGG breach ed its contract by failing to exercise reasonable dil ig ence and due care in adjusting the B oyd s’ claim with State Farm and sought $417,504.37 in damages. 11 Count II requested the same declaratory relief as in the original complaint

. Count III asserted a claim for restitution of the commission payments made to G GG, totaling $60,150.21, on the grou nd th at the re was no consideration supporting the contract given that State Farm already had agreed to pay t he Boyds’ policy limits under Coverage A. Count IV asserted a claim for negligence , premised upon statutory du ti es set forth in Ins. § 10

- 410(a) , se eki ng the s ame damages as for breach of contract. Count V asserted a claim for fraud, alleging that Forrest, as agent for GGG, made willfully false representations to the Boyds relative to the potential coverage for th e damaged deck and

10 The trial date was continued on a mo tion filed by GGG on November 1, 2018, du e to a scheduling conflict for its counsel.

11 That amount comprised six categories of damages: 1) $112,344 for the value of the deck; 2) $3,771.09 for the six percent fee paid on an allegedly “inflated demoliti on estimate”; 3) $48,651.58 rep r es enting th e difference between the amount charged by GGG’s sister comp any for demolition and the actual cost of demolition; 4) $6,106.10 representing the difference between the amount charged for debris removal and the amou nt covered under the Boyds’ Pol i cy ; 5) $5 7, 480 for four months of lease payments for alternative housin g and moving expenses; and 6) $189,151.60 for loss of “Option ID Inflation Coverage” occasioned by GGG’s delays.- 12

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the cost of demolit ion

. The Bo yds sought $106, 237.78 in compensatory damages and $300,000 in punitive damages under that count

. On January 23, 2019, GGG moved to strike the amendments to the complaint and for summary judgment

. In its m ot ion to strike, GGG asserted that it w as p rejud iced by the late amendments because there was insufficient time before trial to complete discovery on the new claims and because the Boyds now sought more than half a million dollars in damages, whereas the o ri ginal complaint sought only declarat ory r elief

. Further, because the Boyds had elected not to appeal from the letter determination issued by Beatty, GGG maintained that that decision was final and binding upon them, precluding the relitigati on of the sam e claims asserted in the MIA Action.
In i ts mo tion for summary judgment, 12 GGG asserted that all the facts alleged in the amended complaint were substantively identical to those alleged in the MIA complaint and that the MIA finally determined that GGG had n ot violated the Insurance Article by it s handl ing of the Boyds’ claim. Citing Garrity v. Maryland State Board of Plumbing , 447 Md. 359 (2016), GGG argued that the Boyds were collaterally estopped from pursuing any of their claims in the circuit court. Th e Boyds opposed the motions. The c our t held a hearing on the motions on April 8 , 2019 and ruled from the bench, granting both motions

. The court reasoned that t hough the Boyds had not been

12 GGG subsequently filed a second moti on for summary judgment address e d to the me rits of each claim in the amended complaint. As we shall dis cuss, however, the circuit court granted summary judgment solely on the ground of collateral estoppel.- 13

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afforded a full administrative hearing before the MIA, because it was their choice not to request a h ear in g, th ey had been afforded “every opportunity to pursue their claims” administratively and were estopped from doing so in the circuit court

. On the motion to strike , the court ruled that because “no new facts [were ] developed in the amended complaint” and t he Bo yds waited until just 3 months before trial to add four counts and damages claims, GGG was prejudiced by the Boyds’ late amendments. The court entered

an order to that effect on April 10, 2019

. Within ten d ay s, the Boyds moved for reconsiderati on of the grant of the motion to strike and to alter or amend the judgment. The court held a hearing on the post

- judgment motions and denied them. It amplified its earlier reasoning, emphasizing that Beatty made fact ua l findings in his letter and that th e B oy ds we re bound by those findings in light of their decision not to request an administrative hearing. It further reiterated its ruling that GGG was prejudiced by the Boyds’ undue delay in amending their complaint

. Th is timely appeal followed. We shall in cl ude a dditional facts as necessary to our resolution of the issues. DISCUSSION I. Motion for Summary Judgment Pursuant to Maryland Rule 2

- 501, a trial court may grant summary judgment when there is no genuine disp ut e of material fact and a party is en tit le d to judgment as a matter of law

. “W hether a circuit court ’ s grant of summary judgment is proper in a particular case is a question of law, subject to a non

- deferential review on appeal.” Tyler v. City of- 14

-

College Pa rk , 415 Md. 475, 498 (2010) (citatio ns om itted )

. Thus, in assessing the propriety of the grant of summary judgment, we consider whether “ the trial court ’ s legal conclusions were legally correct.” Messing v. Bank of Am., N.A ., 373 Md. 672, 684 (2003) (cit at ions omitted). The Boyds contend th at th e cir cuit court legally erred in ruling that their claims in the circuit court action were barred by collateral estoppel or related principles of failure to exhaust administrative remedies

. Their primary position is that Beatty did not investigate an adm in istra tive complaint for the MIA, but rather conducted an “examination” of a public adjust e r pursuant to Ins. § 2

- 206(1)

. They maintain that , in his capacity as an examiner, Beatty did not act in a quasi

- judicial m an ner ; that his letter was not a decis ion , but a “proposed examination report” ; and that despite the representation in the letter that the Boyd s had a right to a hearing to contest Beatty’s determination t hat GGG did not violate the Insurance Article, they w ere not in fact entitled to a heari ng . Ra ther , the Boyds assert that only GGG was entitled to a hearing had it been aggrieved by Beatty’s proposed examination report. GGG responds that the argument that Bea tty’s letter was a proposed examination report f rom which the Boyds were not entitl ed t o appe al is without merit and, in any event, is waived because it was not advanced in the circuit court

. It maintains that the circuit court correctly ruled that the Boyds were collaterally estopped from pursuing th ei r claims in the circuit court becau se t he y el ected to pursue c laims premised on the same core facts before the MIA, which rendered a decision adverse to them that became final when they did not administratively appeal within 30 days

. Further, GGG argues th at the- 15

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administrative remedy was pr imar y and, thus, that the Boyds were obligated to exhaust that remedy before pursuing a civil action.

a. We begin by assessing the nature of the MIA A ction and the Boyds’ administrative rights and remedies

. The Commiss io ner is empowered to enforce the
Ins uran ce Art icle by, among other things, imposing “any penalty or remedy authorized by [the] article, against a person that is under investigation for or charged with a violation of [the] article [.]” Ins. § 2

- 201(e)

. The Co mmissioner is authorized to conduct any i nves tigation “necessary to fulfill the purposes of [the] article” even if not “expressly authorized.” Ins. § 2

- 108

. In conducting an investigation, examination, or hearing, the Commissioner, deputy Commissioner, o r an examiner authorized by the Commi ssio ne r

ma y administer oaths, examine persons, and issue subpoenas compelling witnesses to appear and testify or produce documents

. Ins. § 2

- 203.
P ublic adjust e rs are regulated under Title 10, Subtitle 4 of the Insura nc e Article

. 13 A public adjust e r must be l ic ense d to offer services in Maryland

. Ins. § 10

- 403 (a)

. Section 10

- 410 governs the suspension or revocation of the license of a public adjust e r . As pertinent, t he Commissioner may suspend or revoke a public adjust e r’ s license “after notice and opportu nity f

or a hearing under [Ins.] §§ 2

- 210 through 2

- 214 . . . if . . . the licensee” violate s the Insurance A rticle, “ engage [ s ] in fraudulent or dishonest practices,”

13 In 2017, after the Boyds entered into their con tr act with GGG, the legislature si gnifica nt ly amended and expanded Title 10, Subtitle 4. See 2017 Md. L aws, ch. 106 § 1 (effective Jan. 1, 2018).- 16

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“ demonstrate [ s ] incompetency or untrustworthiness,” “ mi sappropriate [ s ] , convert [ s ] , or unl awfu ll y wi th[ h olds ] money ,” or “fail[s] or refuse[s] to pay on demand money that belongs to an . . . insured[.]” Ins. § 10

- 410(a)

. In addition to suspension or revocation of a license, the Commissioner is empowered to i mp ose a penalty of between $100 and $ 500 fo r ea ch violation of the Insurance Article and to order the public adjust e r to pay

“ restitution to any citizen who has suffered financial injury because of the violation of [the] article. ” Ins. § 10

- 410(c) & (d). Se ction 2

- 206 governs “examinations” of i ns uran ce brokers, agents, and public adjust e rs . It authorizes the Commissioner to “ examine the accounts, records, documents, and transactions that relate to the insurance affairs or proposed insurance affairs ” of th os e persons or entities whenever “ adv isab le to determine compliance ” with the Insurance Article

. Ins. § 2

- 206

. An examination is conducted at the place of business of the person or entity being examined or the “ place where records of the person are kept. ” In s. § 2

- 207(a) (2)

. The person being exam in ed m ust make available to the examiner “ the accounts, records, documents, files, information, assets, and matters that are in the possession or control of the person and relate to the subject of the examination ” a nd assist with the examination to “th e ex te nt r easonably possible.” Ins. § 2

- 207(b)

. At the conclusion of an examination, the examiner prepares a proposed examination report, which contains “facts” ascertained from “t he books, records, or documents of the pe rson being examined; or

. . . deter mine d from statements of individuals about the person ’ s affairs. ” Ins. § 2

- 209(b)

. The proposed examination report must be served on the person examined and if, within 30 days thereafter, that person requests a hearing, t he- 17

-

Commissioner shall grant the req uest

. Ins. § 2

- 209(c)

. T he proposed examination report may not be adopted until the hearing has been held

. Id

. After an examination report is adopted by the Commissioner, it may be admitted in evidence in any action bro ug ht by the Commissioner against an i ndiv id ual

. Ins. § 2

- 209(d).
Ins

. § 2

- 210 pertains to hearings

. T he Commissioner “may hold hearings” that he or she “ considers necessary for any purpose under [ the ] article ” and “shall hold a hearing” required by the a rt icle or “ on written demand by a per son ag grieved by any act of, threatened act of, or failure to act by the Commissioner or by any report, regulation, or order of the Commissioner, except an order to hold a hearing or an order resulting from a hearing .” In s. § 2

- 210(a)

. Hearings are governe d by t he contested case provisions of the Administrative Procedure Act

. Ins. § 2

- 210(c)

. In holding a hearing under Title 2, Subtitle 2, the Commissioner “sits in a quasi

- judicial capacity.” Ins. § 2

- 214(a)

. Following a h earing, the Commissioner shall issu e an o rder setting forth a concise statement of the facts found, the conclusions drawn from those facts, and setting forth the effective date, purpose, the grounds for the Commissioner’s action , and the provisions of th e article upon which he or she relied

. In s. § § 2

- 2 1 4 (c) & 2

- 204(b)

. A s pertinent, a party aggrieved by “ an order resulting from a hearing or a refusal to hold a hearing” may petition for judicial review in the circuit court

. Ins. § 2

- 215. The Commissione r has adopted regulations to carry ou t th e article which appear at Title 31 of the Code of Maryland Regulations (COMAR)

. See Ins. § 2

- 109(a) (authorizing the Commissioner to adopt regulations)

. The definitions in Subtitle 2 , pertaining to “Powers and Dutie s

– Hearings,” are pertinent to our a naly si s . An- 18

-

“Administrative c omplaint” i ncludes “a document that . . . [ i ] s received by the Commissioner from any person” that “[a]lleges a violation of . . . [ a ] law or regulation enforced by the Commissioner[.]” COMAR § 31.02.01.02

. B(2)

. A contested case is de fined to include a proceeding “[a]rising out of a determination made by the Commissioner,” “[r]egarding a license . . .,” “on a proposed examination report , ” or “arising out of any other act of, threatened act of, o r failure to act by the Commissione r th at aggrieves a person.” COMAR § 31.02.01.02

. B(3)

. A “Determination” means “a decision by the Commissioner that requires [him or her] to provide the opportunity for a hearing to a person aggrieved by the decision . .

. [pursuant to Ins.] § 2

- 210[.]” COM AR § 3 1.02.01.02

. B(4)(a)

. It includes “[a] decision as to whether a person against whom an administrative complaint has been received violated a law, regulation, or order[.]” COMAR § 31.02.01

. 02. B(4)(b) (i)

. An “Examinat io n Report” is defined to include “a
repo rt of the examination of . . . [ a ] public adjuster [.] ” COMAR § 31.02.01.02 .B(5) (a)(ii)

. A “[p]roposed examination report” is the report mailed “to the person examined . . . [a]t the conclusion of an examination” tha t “informs the person being examined of t he
per son’s right to request a hearing pursuant to Regulation .04C[.]” COMAR 31.02.01.02.B(9). COMAR § 31.02.01.03 “applies to all requests for a hearing except a request for a hearing on a proposed examination rep or t.” As mentioned, a copy of this regula ti on w as appended to Beatty’s letter to the Boyds

. A request made under this regulation must be received by the Commissioner “within 30 days of the date of the letter notifying the party of the Commissioner’s action , intention to act, or failure to act.” C OM AR- 19

-

3 1.02.01.03

. C(1)

. The request must specify the “action or non

- action of the Commissioner causing the person requesting the hearing to be aggrieved[.]” COMAR
31.02.01.03

. D(1). COMAR § 31.02.01.04 governs reque st s for hearings on proposed examination

re port s . A proposed examination report must be mailed to the “person that was examined” 30 days before the proposed report is filed and must advise the person examined if the Commissioner “intends to impose a fine o r other penalty or require restitution or o ther remedy as a result of the findings of the proposed examination report[.]” COMAR § 31.02.01.04

. B

. The person examined may, within 30 days of receipt of the proposed examination report, request a hearing

. COMAR § 31.02.01.04

. C. In either case, once a hear ing is scheduled, the parties are entitled to limited discovery by filing requests for production and by subpoenaing witnesses

. COMAR §§ 31.02.01.05

- 1 & .06

. b. We discern from the statutes and regulations s et out above that the MIA Action was init ia ted by the Boyds’ filing of an administrative complaint; that it was not an examination; that Beatty’s letter was an MIA “Determination”; and that the Boyds, as parties aggrieved by that determination , were entitl ed to a contested case hearing, had they el ecte d to request one

. We explain. An examination is like an audit

. It may be initiated by the Commissioner to determine general compliance with the Insurance Article or specific provisions of it

. It is conducted a t the place of business of the person t o be e xamined and the findings resulting- 20

-

from the examination are served upon the person examined, who is entitled to an exceptions hearing , upon request , before the proposed examination report may be adopted.
In c on trast to that procedure, here the Boyds f iled a complaint using a complaint form available on the MIA’s website

. They identified a specific claim that GGG allegedly mishandled

. In response to their complaint, Beatty, who identified himself as an “Insuran ce Investigator,” not an examiner, advise d GGG that a complaint had been made against them and that he was charged with investigating that complaint, and direct ed them to provide him with the Boyds’ claim file and any related documents and correspondence. He did not come to GGG’s place of business t o exam ine its records and accounts and he did not seek records outside of the scope of the Boyds’ complaint. 14 Further, at the end of Beatty’s investigation, he served his letter summarizing his findings and concl us ions up on the Boyds , not upon GGG.
Beat t y’ s le tter to the Boyds’ counsel was “[a] decision as to whether a person against whom an administrative complaint has been received violated a law, regulation, or order [

. ] ” COMAR 31.02.01.02

. B(4)

. I t follows tha t to the extent the Boyds were aggrieved by th at d ecision, they were entitled to a hearing upon their request

. COMAR 31.02.01 .02

. B(4); Ins. § 2

- 210(a)(2)

. This was consistent with Beatty’s letter, which advised them that they could request a hearing within 3 0 days of their receipt of his letter

14 We do not mean to suggest that an examination never could result from an administrative complaint, but onl y that that was not what occurr e d here.- 21

-

and at tach ed a copy of COMAR 31.02.01.03 , which is the regulation governing hearing requests generally, not hearing requests in response to a proposed examination report.

c. We now turn to the impact, if any, that th e Boyds’ decision to pursue a n administra t i v e co mplaint, but not to request a hearing after the MIA’s preliminary decision , had upon their right to pursue their judicial action in the circuit court

. GGG maintains that the Boyds were collaterally estopped b y the MIA decision from relitigating the s a m e is sues in the circuit court or , in the alternative, that by their decision not to request a contested case hearing , they failed to exhaust their administrative remedies

. W e conclude that the MIA decision was no t the product of a quasi

- judicial proceed i n g and , consequently, the Boyds were not collaterally estoppe d by it

. Further, we conclude that the administrative remedy was n either exclusive n or primary but was fully concurrent with the judicial remedy

. Thus, t he Boyds were not obligated to exhaust ad m i n istr ative remedies to pursue their judicial action

. Thus , we shall reverse the circuit court’s grant of GGG’s motion for summary judgment.
In Batson v. Shiflett , 325 Md. 684, 705 (1992), the Court of Appeals h el d that the decision of an administrative a g e ncy may have preclusive effect if the agency decision

was the product of a quasi

- judicial proceeding

. T he Court adopted the three

- part test set out by the United States Court of Appeals for the Ninth Circuit in E xxon Corp. v. Fischer , 807 F.2d 842, 845

- 4 6 (9 th Cir. 1987), for preclusive effect of agency decisions

. That test provides that an agency decision can have preclusive effect if: (1) the agency acted in a judicial capacity; (2) the issue presented to th e f act- 22

-

finder in the second proceeding was f u l l y li tigated before the agency; and (3) resolution of the issue was necessary to the agency ’s decision. Garrity , 447 Md. at 380 (citing Batson , 325 Md. at 701)

. If the test is satisfied, “agency findings made i n the course of proceedings that are judici a l in n ature should be given the same preclusive effect as findings made by a court.” Batson , 325 Md. at 702. Applying that test, GGG asserts that the MIA “convened a ‘contested hearing’, in which the Boyds were ca lled upon to prove their assertions and G G [ G ] wa s called upon to contest those assertions.” Ins. § 2

- 214(a) makes plain, however, that the Commissioner acts in a quasi

-

judicial manner when holding a hearing pursuant to Ins. § 2

- 210

. As discussed, though th e Boyds were entitled to a hearing under I n s . § 2

- 210 following the MIA’s determination that GGG had not violated the Insurance Article by its handling of their claim, a hearing as that term is used in the Insurance Article had not yet occurred

. See COMA R 31.02.01.02.B(4) (defining “ Determination ” t o me an “ a decision by the Commissioner that requires the Commissioner to provide the opportunity for a hearing to a person aggrieved by the decision under Insurance Article §2

- 210 ” ) (emphasis added)

. Likewise , th e administrative complaint submitted by t h e Boyds , though contested by GGG, did not become a “contested case” until the determination was made that aggrieved either the Boyds or GGG

. See COMAR 31.02.01.02

. B(3) (defining “Contested Case” to include a proc ee ding “[a]rising out of a determination ma d e by th e Commissioner” or

“ any other act of, threatened act of, or failure to act by the Commissioner that aggrieves a
person ”) (emphasis added)

. Because the Insurance Article specifies when the Commissioner acts i n a quasi

- judicial manner and that the in v e s tigat ion of an- 23

-

administrative complaint precedes the exercise of those powers , we conclude that the investigation of the Boyds’ complaint resulting in the preliminary agency decision was not a quasi

-

judicial pr oc eeding. Our conclusion is bolstered by t h e fact the Boyds did not participate in an adversarial hearing prior to the decision

. GGG’s analogy to Garrity in this regard is misplaced

. In that case, the Court of Appeals held that the Consumer Protection
Di vi sion’s ( “ CPD ” ) final decision that a plum b e r violated the Consumer Protection Act, imposing fines, and ordering him to pay restitution, had preclusive effect in a second administrative proceeding brought against the same plumber by his licensing board to

r evoke his license and impose additional p e n a lties

. There, the CPD’s decision had followed a two

- day administrative hearing before an Administrative Law Judge at the Office of Administrative Hearings

. In this case, in contrast, there was no oral hearing;

no ne of the parties testified, called witne s s e s, or cross - e xamined adverse parties; and Beatty did not make credibility determinations in assessing the parties’ competing positions

. GGG nevertheless maintains, citing Alitalia Linee Aeree Italiane v. Torn il lo , 320 Md. 192 (1990), 15 that Beatty cond u c t ed a “paper h earing. ” Even if the investigation may

15 In Alitalia , 320 Md. at 192, the Court of Appeals considere d whether a motion for rehearing filed by an employer before the Worker s Compensation Commission must have been preceded by an oral, adversarial hearing to be effective. The employee, T or nillo, ha d filed a claim form alleging that he suffered an accidenta l injury arising out of his employment. Alitalia did not request a hearing within the requisite time and the Commission made an award based upon the evide nc e in the record, i.e. , the c la im form. Th ereafter, Alitalia moved to strike the award and/or for a r ehearing. The Commission ( c ontinued...)- 24

-

have amounted to a “paper hearing” as that term has been defined in our case law and satisfied the Boyds’ and GGG’s due process rights at that preliminary sta ge of the agency review , it does not follow t h at it was a q uasi

- judicial proceeding for purposes of collateral estoppel

. For the reasons already discussed, we conclude that it was not

. Given this conclusion, the three

- part Exxon test is not satisfied here, a nd collateral estoppel does not apply

. Co n s e quently, we n eed not assess whether the the issues presented by the Boyds in the circuit court action were “fully litigated before the [MIA]” or whether “resolution of th[ose] issues was necessary to the [MIA ’s ] decision.” Garrity , 447 Md. at 380. d.
W e t urn to the al ternative basis offered by GGG for affirmance of the grant of summary judgment: that the Boyds were obligated to exhaust administrative remedies before purs u ing relief in the circuit court

. “Whenev er the Legislature provides an administrati v e and judicial review remedy for a particular matter or matters, the (...continued) denied the motion. On judicial review, Tornillo argued that the petition was untimely because it was filed more than thirty days af ter the award of compensatio n an d that th e petition for rehearing had not tolled the time to appeal because no hearing ever had been held. The circuit court agreed and entered judgment in favor of Tornillo. This Court affirmed that judgment. In t he Cour t of Appeals , it characterized t he issue be fore it as “whether the word ‘hearing’ must be strictly lim ited to a proceeding at which counsel or parties in fact are heard

– or at least have the opportunity to be heard: i.e. , to present evidence and to make o ra l presentations to the tribu na l. ” Id . a t 197. It reasoned that the history of the Worker’s Compensat ion statute at issue supported the view that a motion for rehearing operated like a motion for reconsideration. The Court further opined: “No violence is do ne to the meaning of ‘hearin g’ b y readi ng it as extending to something other than an oral presentati on before the tribunal. We have recognized the concept of a ‘paper hearing.’” Id . at 199 (citing Phillips v. Venker , 316 Md. 212, 218, 221

- 222 (1989) (add it ional citations omitted)).- 25

-

relationship between that administrative remedy and a possible alternative judicial remedy will ordinarily fall into one of three categories.” Za ppone v. Liberty Life Ins. Co ., 349 Md. 4 5 , 60 (1998).

F irst , the administrative remedy may be exclusive, thus precluding any resort to an alternative remedy

. Under this scenario, there simply is no alternative cause of action for matters covered by the s tatutory administrative remedy. Second , t h e administrati ve remedy may be primary but not exclusive

. In this situation, a claimant must invoke and exhaust the administrative remedy, and seek judicial review of an adverse administrative decision, before a c ourt can properly adjudicate the merits o f t he alternativ e judicial remedy. Third , the administrative remedy and the alternative judicial remedy may be fully concurrent, with neither remedy being primary, and the plaintiff at his or her option may pursu e the judicial remedy without the necessity o f invoking and exhausting the administrative remedy. Id . at 60

- 61 (citations omitted) (emphasis in original)

. “Whether a plaintiff must exhaust administrative remedies prior to bringing suit is a legal issue w hi ch [we] review[] de novo .” United Ins. Co

. o f Am. v. Md. Ins. Admin ., 450 Md. 1, 14 (2016)

. We determine whether an administrative remedy is exclusive, primary, or concurrent by assessing the legislative intent

. Zappone , 349 Md. at 61. If the legislature e xpressly states that an administrative re m e d y is intended to be exclusive, primary, or concurrent, then a reviewing court need not examine other factors to discern the legislature ’ s intent

. Id

. On the other hand, “[i]n the absence of specific statutory
l an guage indicating the type of administrati v e remedy, there is a rebuttable presumption that an administrative remedy was intended to be primary

. Thus, ‘a claimant cannot maintain the alternative judicial action without first invoking and exhausting the ad mi nistrative remedy. ’ ” United Ins

. , 450 Md. a t 15 ( citing Z appone , 349 Md. at 63 ).- 26

-

GGG does not contend that the MIA’s jurisdiction was exclusive but argues that the MIA’s jurisdiction was primary and, thus, the Boyds, were obligated to pursue that forum to “a hearing or a final decision” before p u r s uing j udicial relief. The Boyds respond that the circuit court ’s jurisdiction was fully concurrent with the MIA’s jurisdiction with respect to their claims. In any event, t o the extent they were required to exh au st administrative rem e dies, they did so b y p ursuin g an MIA complaint but then “electing not to pursue a hearing before the OAH [,]” thereby “terminat[ing] the administrative process” and rendering Beatty’s letter determination final with respect to their ad ministrative remedies. Title 10, Subtit l e 4 of t he Insurance Article does not express a legislative intent to grant the MIA exclusive jurisdiction over a complaint against a public adjust e r for breach of contract, negligence, fraud, and related claims

. W e thus turn to whether the presumption th a t the MI A had primary jurisdiction over those claims was rebutted here.
In Zappone , the Court of Appeals held that the presumption of primary jurisdiction was rebutted in a judicial action brought by an insured ag ainst an insurer and an insurance agent f

o r allege d acts of fraud, negligent misrepresentation, and negligence

. 349 Md. at 50

. Those claims arose from allegations that Liberty Life and its agents had misrepresented the benefits and the tax consequences o f a life insurance policy that Zappone purc h a s ed

. On appeal from the dismissal of Zappone’s judicial action for failure to exhaust administrative remedies, t he Court of Appeals rejected the argument that Zappone was obligated first to exhaust his remedies un der the Unfair Trade Practices title of t h e Insura nce Article.- 27

-

In so holding, t he Court explained that four factors were germane to the determination of whether the presumption of a primary remedy has been rebutted: 1) “ the comprehensiveness of the admi ni strative remedy ” ; 2) “ the administrative a g e ncy ’ s view of its own jurisdiction ” ; 3) t he claim ’ s “ dependen [ ce ] upon the statutory scheme which also contains the administrative remedy” ; and 4) the claim ’ s dependen ce “ upon the expertise of the administrativ e agency . ” Id . at 64

- 65

. It concluded that a l l four fa ctors weighed against the MIA having primary jurisdiction. The Court reasoned that Zappone set forth “recognized common law causes of action” that were “wholly independent of the Insurance Code’s Unfair T rade Practices subtitle.” Id . at 67. The I n s urance C ommissioner , who had filed an amicus brief supporting Zappone’s position, did not view its jurisdiction to be primary. Id . at 67

- 68. Further, the Unfair Trade Practices title
express ly stated that an or de r issued by the Commissioner under the ti t l e did not relieve an insurer of other liability , reflecting an intent to permit alternative judicial relief

. The Court reached a similar result in Mardirossian v. Paul Revere Life Insurance
Co ., 376 Md. 640 (20 03 ). Mardirossian , like the Boyds here, ini t i a lly file d an administrative complaint against Paul Revere, alleging that it had wrongfully failed to issue a disability insurance policy to him, based upon an oral contract to issue that policy. The MIA investi ga tor charged with investigating his compla i n t consult ed with the MIA’s chief enforcement officer, who determined that the complaint should not be pursued because it would be inappropriate to hold an insurance company responsible for not issuing a disabili ty policy based upon an agent’s representat i o n to a br oker. The investigator advised Mardirossian of this “preliminary finding” and Mardirossian “did not- 28

-

pursue the administrative complaint to a higher level within the MIA.” Id . at 645. In a footnote, the Co urt emphasized that Mardirossian was enti t l e d to an adversar ial hearing to contest the MIA investigator’s preliminary finding not to pursue his complaint. Id . at 645, n.2. Mardirossian then filed a complaint in the circuit court seeking specific perform an ce of the oral contract. That case was re m o v ed to th e U nited States District C ourt for the District of Maryland , which ruled that the administrative remedies were exclusive and primary and Mardirossi a n was obligated to exhaust them before pursuing the sp ec ific performance claim. On appeal, t he Fo u r t h Circui t Court of Appeals vacated that judgment and remanded to the district court with instructions to certify the issue of whether the Insurance Article created a primary administrative remedy , supplanting
M ar yland’s common law contract remedy , to th e C ourt of Appeals. In deciding that certified question , the Court of Appeals , relying on Zappone , reasoned that an action for specific performance to enforce an oral contract for insurance was well

- established in Maryland law and that the Unfair and Dec e p t ive Trad e Practices subtitle of the Insurance Code did not evidence an intent to supplant that remedy. It concluded that the legislature “did not intend that the Insurance Commissioner’s authority , to restrain un fair practices [would] modif [y] Maryland [ ’ s ] common law contract enforceability pr inciple s.” Id . at 649. The Court determined that the remedies available under the Insurance Code were neither exclusive nor primary and that the “common law contract remedy [ was] fully concurrent , and may be pursued i n court- 29

-

witho ut exhausting the administrative remedy[.]” Id

. Of significance , Mardirossian , like the Boyds, elected not to appeal from the MIA’s adverse finding against him. Conversely, in cases involving clai ms that arise out of violations of the Insu r a n ce Article, the Court of Appeals has held that the administrative remedy is primary and must be exhausted before adjudication of a judicial action . In Carter v. Huntington Title & Escrow, LLC , 420 Md. 605, 6 09 (2 011) , Maurice Carter filed in the circuit c o urt a putati ve class action suit on behalf of himself and similarly situated persons , claiming that a title insurer overcharged them on title insurance during loan refinance transactions in violation of the Unf ai r Trade Practices Title of the Insurance Ar t i cle . He also asserted claims for “ money had and received ” and for “ negligent misrepresentation. ” Id . at 610

- 11. In support of his claims, Carter relied upon provisions of the Insurance Article requiring title in surers to file their rates with the MIA a nd n ot deviate from those rates

onc e approved

. Id . at 611. The title insurer moved to dismiss the complaint, arguing that the MIA had primary jurisdiction over Carter’s claims. The circuit court granted the motion t o dismiss and Carter’s appeal from that r ul i n g reached the Court of Appeals. Distinguishing Zappone and Mardirossian , the Court observed that in those cases, the “behavior of the defendants violated the Insurance Article ” but the “consumers possessed a ‘r ecognized independent tort remedy’ and a ‘c o m mon law contract remedy,’
respe ctively, and therefore could seek relief outside the administrative regulatory scheme.” Id . at 626. In contrast, Carter’s claims alleged “purely statutory violations.” Id

. Ana ly sis of the four factors enunciated in Zap po n e weighed in favor of the primac y of the administrative remedy. The Insurance Article reflected a legislative intent- 30

-

to create a “comprehensive, if not complex, regulatory and remedial scheme [

. ] ” Id . at 627. Th e Court framed the question as whether that s c h eme was “sufficiently comprehen sive” to reflect an intent for a claim like Carter’s to proceed first administratively. Id . Given that Carter’s claims alleged and “depend[ed] on a statutory benchmark violation , ” though recast as common law claims , the C ou r t concluded that it did. Id . at 628. Under t he second factor, the Court pointed out that in another case involving a violation of a statutory obligation under the Insurance Article, the Insurance Commissioner h ad filed an amicus brief taking the positio n t h at the MIA had primary jurisdiction

. Under the third factor, the Court reasoned that Carter’s claims would not exist “without an essential underpinning found in the Insurance Article.” Id . at 630. The fourth f ac tor did not weigh strongly either way. Ov er a l l, the Court held that primary jurisdiction vested with the MIA and that Carter was obligated to first exhaust his administrative remedies. Likewise, i n United Insurance , the Court held that an insurer was o bl igated to exhaust its right to an adminis tr a t ive hearing under Ins. § 2

- 210 before it could seek dec laratory relief in the circuit court against the MIA to challenge the Commissioner’s stated intent to give retroactive effect to a newly enacted statute g ov ern ing life insurance policies

. Citing Ca rt e r , the Court emphasized the overall breadth of the Insur ance Article ’s remedial scheme and, specifically, that United Insurance’s claim for declaratory relief turned upon the Commissioner’s interpretation and a pp lication of a statute it was tasked with en f

o rcing. 450 Md. at 17

- 18. It emphasized that the MIA , which had successful ly moved to dismiss the declaratory judgment action in the circuit court, clearly- 31

-

viewed its jurisdiction over the claim as primary. Id

. a t 22. Under the third Zappone factor, t he C o u rt held that the insurer’s claims were dependent upon the statutory schem e because the enactment of the statute and the Commissioner’s threat to enforce the statute retroactively formed the basis for claim for d eclaratory relief

. Finally, it was approp ri a t e to accord deference to the MIA, in the first instance, to pass upon the issue of retroactive application of the statute. Id. at 27.
We r eturn to the instant case

. As in Zappone and Mardirossian , assessment o f the relevant factors weighs in favor of c oncurrent jurisdiction over the Boyds’ claims. Though the Unfair Trade Pr actices title of the Insurance Article creates a comprehensive remedial scheme, the regulation of a public adjust e r under Title 10, Subtit le 4 in effect at the time of the acts givi n g rise to the Boyds’ complaint was much more limited in
scope. 16 It regu lated the licensure of a public adjust e r and granted the Commissioner discretion to award restitution for financial harm. The MIA has not par ti cipated in this case and, thus, we cannot g auge its view of its jurisdiction under these facts. Of great

16 A s noted e arlier, after the contract and the events in this case givin g rise to the Boyds’ claims against GGG, the legislature amended and expanded Title 10, Subtitle 4. See 2017 Md. Laws, ch. 106 § 1 (effective Jan. 1, 201 8)

. Section 10

- 411 now prescrib es t he for m of a contract for public adjuster services. Section 10

- 412 r equires public adjusters to deposit funds held on behalf of an insured in a non

- interest

- bearing escrow or trust account. Section 10

- 413 obligates a publ ic adjuster to maintain certain r e c ords. Se ction 10

- 414 sets out the standards of conduct and obligatio ns of a public adjuster. Section 10

- 415 sets forth a public adjuster’s ethical obligations. Section 10

- 416 requires a public adjuster to report to the Co mm issioner any final administra ti v e actio n taken against it in another jurisdiction. We express no opin ion as to whether t hose statutes , which do not apply here, might evince an intent to create a primary or exclusive administrative remedy in future cases

.- 32

-

signific ance, the counts in the Boyds’ amended complaint against GGG allege traditional common law claims for breach of contract, fraud, and negligen ce that are almost entirely independent of a n y violation of the Insurance Article. 17 The Boyds’ count in which resti tution is claimed for the commission charged by GGG rests upon a n alleged lack of consideration, not upon a statutory violation. The Boyds’ d ec laratory judgment count seeking a declara t i on that they have a right to terminate the contract also does not depe nd upon interpretation of any provision of the Insurance Article , but upon construction of the Boyds’ contract with GGG. For these reasons, w e conclude that , as Zappone and Mardiross i a n , Title 10, Subtitle 4 of the Insurance Article does not reflect an i ntent to supplant the common law remedies for breach of contract, fraud, negligence, the equitable remedy of restitution, or the statutory reli ef available under the declaratory judgme n t act, by regulating the licensure of public adjust e rs. Further, as in Mardirossian , the Boyds’ decision not to pursue a contested case hearing to challenge the preliminary determination against them did not precl ud e them from pursuing alternative judi c i al relief. See also Thompson v. State Farm Mutual Automobile Insurance Co ., 196 Md. App. 235, 248 (2010) ( reason ing that a party who pursues an administrative complaint before the MIA and receives an adverse prelimi na ry decision after a paper hearing, bu t el ects not to request a contested case hearing before the OAH , may not then seek judicial review of that decision, but may pursue an

17 The Boyds make one referenc e t o the I ns urance Article in the amended complaint

. In their negligence count, they allege that GGG’s duty of care arose under Ins. § 10

- 410(a)(4), (5) and (9).- 33

-

independent action before the circuit court, assuming that independent statutory, co mmon law, or equitable remedies exist )

. R ather, by electing not to pursue that hearing, the Boyds terminated their concurrent administrative proceeding in favor of their judicial proceeding. This was their prerogative. We recognize that there is an asy mm etry to GGG in this result. Ha d the MIA ’s preliminary decision been favorable to the Boyds, GGG c ould have faced suspension or revocation of its license, fines, and/or an order to pay restitution. Thus, GGG would have be en obligated to request a conteste d case hearing to avoid those ad v e rse out co mes. Given that t he MIA regulates insurers and insurance prof essionals, not insureds, and the fact that the MIA could not have given full relief to the Bo y ds, even if warranted, our construction of the administrat iv e scheme is not unreasonable o r unfair. II. Motion to Strike Amend ed Complaint Given our resolution of the first issue, we conclude that the court erred in granting the motion to strike the amended complaint for the reason given

. The court ’s reasoning i n ruling on the motion to stri ke was in te rtwined with the ruling on summary judgment. It emphasized in granting that motion that GGG was prejudiced by the Boyds’ decision to pursue two avenues for relief simultaneously and that striking the amendments wa s not unfair to the Boyds becaus e they ha d been given an opportunity to litigate their claims before the MIA but elected not to pursue a hearing. As already explained, however, the Boyds were permitted to pursue both their administrative and judicial remed ie s and to terminate their admin is trative c omplaint in favor of the pending judicial action. Any- 34

-

prejudi ce to GGG occasioned by the timing of the amendments to the complaint relative to the then scheduled trial date are moot given that on remand, a new tri al date will be scheduled. JUDG ME NT OF T HE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED . CO STS TO BE PA ID BY APPELL EE .