### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00646-CV

Liberty Mutual Insurance Company, Liberty Insurance Corporation, Liberty Mutual

Fire Insurance Company, LM Insurance Corporation, and First Liberty

Insurance Corporation, Appellants

v.

Betty Griesing, Individually and on behalf of all other persons

similarly situated, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. GN301638, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING

O P I N I O N

Appellee Betty Griesing sought a partial summary judgment to determine whether

appellant Liberty Mutual may lawfully impose a state-mandated fee for theft prevention beyond the

automobile insurance rates filed by Liberty Mutual and approved by the commissioner of insurance

under a state regulatory regime. The district court granted partial summary judgment in favor of

Griesing, declaring that the collection of the theft-prevention fee in addition to the regulated rate is

unlawful, that a rule of the commissioner of insurance, which Griesing alleged allowed Liberty

Mutual to charge the theft-prevention fee in addition to the regulated rate, does not allow the

collection of the fee in addition to the rate, that the rule is void to the extent that it could be read to1 The department of insurance publishes the Texas Automobile Rules and Ratings Manual

,

in which it lists as “Rule 15” language identical to that of rule 5.205. As a result, any discussion in

this opinion concerning rule 5.205 will also apply to the language contained in the Texas Automobile

Rules and Ratings Manual

.

2 Griesing also sued four related Liberty Mutual entities: Liberty Insurance Corporation,

Liberty Mutual Fire Insu rance Company, LM Insurance Corporation, and First Liberty Insurance

Corporation. Because all appellants bring this appeal as one entity, we will refer to them as “Liberty

Mutual.” Liberty Mutual is a rate-regulated automobile insurer subject to article 5.101 of the

insurance code. See Tex. Ins. Code Ann. art. 5.101 (West Supp. 2004).

2 permit the collection of the fee in addition to the rate, and that Liberty Mutual breached its insurance

contract with Griesing. We affirm the district court’s judgment.

BACKGROUND

The legi slature created the Texas Automobile Theft Prevention Authority (ATPA)

in 1991 to combat automobile th eft in this state. S ee Tex. Rev. Civ. Stat. Ann. art. 4413(37), § 2

(West Supp. 20 04). The ATPA is composed of seven members, including the director of the

Department of Public Safety, and six other members appointed by the governor. I d

. § 3. The

ATPA’s statutory mission is to assess the scope of the automobile theft problem in Texas and to

analyze various methods combating the problem. I d

. § 7. An insurer is required to pay one dollar

per insured vehicle per year to the authority (“ATPA fee”). I d

. § 10(b). By rule, the commissioner

of insurance allows automobile insurers to recoup this fee from the policyholder. 28 Tex. Admin.

Code § 5.205(a) (West

2002). The rule mandates that insurers must include a printed notice on

policies that the fee is charged “in addition to the premium due.” 1 Id . § 5.205(b)(1), (2).

The underlying suit in this case is a class action brought by Griesing against her auto

insurer, Liberty Mutual, 2 alleging that Liberty Mutual improperly charged the ATPA fee in addition3 The district court granted permission to bring this interlocutory appeal. A district court

may issue a written order for interlocutory appeal in a civil action not otherwise appealable if the

parties agree that the order involves a controlling question of law as to which there is a substantial

ground for difference of opinion. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (West Supp.

2004). If application is made to the court of appeals with appellate jurisdiction over the action no

later than the tenth day after such orde r is entered, the appellate court may permit an appeal. I d

. § 51.014(f). In this case, we granted Liberty Mutual’s properly submitted application.

3 to her auto insurance rate. She challenges only the manner in which Liberty Mutual recouped the

fee—as a direct pass-through ch arge instead of as an expense to be considered in establishing the

rates regulated under article 5.101 of the insurance code. Both parties filed motions for summary

judgment, and the trial court granted partial summary judgment in favor of Griesing, declaring that

Liberty Mutual may not lawfully impose the ATPA fee on Griesing outside of the rates filed and

established by the insurance companies under article 5.101. It also found that rule 5.205 does not

permit the collection of the ATPA fee outside the article 5. 101 rate, that rule 5.205 is void to the

extent that it could be read to permit the collection of the fee outside the approved rate, and that

Liberty Mutual breached its insurance contract. This appeal followed. 3

DISCUSSION

Liberty Mutual brings three issues on appeal. First, it argues that it is authorized to

collect the fee from policyholders separately from the premium rat e. See T ex. Ins. Code Ann.

§ 21.35B (West Supp. 2004). Second, it asserts that rule 5.205 validly permits the collection of the

ATPA fee in addition to the approved rate. S ee 28 Tex. Admin. Code § 5.205 (West 2002). Third,

it states that no evidence exists on the record that it breached a n automobile insurance contract or4

unlawfully charged the fee. Because this appeal comes from a grant of summary judgment in favor

of Griesing, we begin with the appropriate standard of review.

The propriety of a summary judgment is a question of law, and we review the trial

court’s decision de novo

. N atividad v. Alexsis, Inc.

, 875 S.W.2d 695, 699 (Tex. 1994). The

standards for reviewing traditional summary judgments are: (1) the movant for summary judgment

has the burden of showing that no genuine issues of material fact exist and that it is entitled to

judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding

summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every

reasonable inference must be indulged in f avor of the nonmovant and any doubts resolved in its

favor. Tex. R. Civ. P. 166a(c); N ixon v. Mr. Prop. Mgmt. Co.

, 690 S.W.2d 546, 548-49 (Tex. 1985).

A party moving for summary judgment must conclusively prove all elements of its cause of action

or defense as a matter of law. Tex. R. Civ. P. 166a(c); R hone- Poulenc, Inc. v. Steel , 997 S.W.2d

217, 223 (Tex. 1999); Walker v. Harris

, 924 S.W.2d 375, 377 (Tex. 1996). When both sides move

for summary judgment, as the parties did in this case, and the court grants one motion but denies the

other , the reviewing court should review both sides’ summary-judgment evidence, determine all

qu estions presented, and render the judgment the trial court should have rendered. H oly Cross

Church of God in Christ v. Wolf , 44 S.W.3d 562, 566 (Tex. 2001).

ATPA Fee and the Article 5.101 Regulated Rate

In Liberty Mutual’s first issue, it argues that the district court erred because the ATPA

fee is a tax and the insurance code expressly authorizes it to collect “taxes” from policyholders as

a charge separate from the regulated rate. S ee Tex. Ins. Code Ann. art. 2 1.35B. In response,5

Griesing asserts that the ATPA fee is not a tax and, in any event, article 5.101 of the insurance code

creates the only rate that an insurance company can charge a policyholder. Thus, she believes that

any fee permitted under article 21.35B must be included in the 5.101 regulated rate.

In order to resolve this controversy, we must construe insurance code articles 5.101

and 21.35B. Statutory construction is a question of law, which we also review d e novo

. S ee Johnson

City v. City of Fort Worth , 774 S.W.2d 653, 656 (Tex. 1989). Our objective when we construe a

statute is to determine and give effect to the legislature’s intent. See Liberty Mutual Ins. Co. v.

Garrison Contractors, Inc.

, 966 S.W.2d 482, 484 (Tex. 1998); Union Bankers Ins. Co. v. Shelton

,

889 S.W.2d 278, 280 (Tex. 1994). Any resolution of an issue of statutory construction must begin

with an analysis of the statute. S ee Renaissance Park v. Davila , 27 S.W.3d 252, 256 (Tex.

App.—Austin 2000, no pet.); Ford Motor Co. v. Motor Vehicle Bd.

, 2 1 S.W.3d 744, 762 (Tex.

App.—Austin 2000, pet. denied). We must look at the insurance code as a whole instead of

analyzing individual provisions in isolation from each other. S ee Continental Cas. Co. v. Downs

,

81 S.W.3d 803, 805 (Tex. 2002). We are to consider, among other factors, the language of the

statute, legislative history, the nature and object to be obtained, and the consequences that would

follow from alternate constructions, even when a statute is not ambiguous on its face. S ee Helena

Chem. Co. v. Wilkins

, 47 S.W.3d 486, 493 (Tex. 2001). In case of conflict between a general

statutory provision and a special provision dealing with the same subject, the s pecial provision

controls the genera l. Brazoria County v. Texas Comm’n on Envtl. Quality , 128 S.W.3d 728, 738

(Tex. App.—Austin 2004, no pet.); Commercial Standard Fire & Marine Co. v. Commissioner of

Ins. , 429 S.W.2d 930, 933 (Tex. Civ. App.—Austin 1968, no writ).4 “County mutual” or “non rate-regulated” automobile insurers are the other statutorily

recognized form of automobile insurer and are governed by chapter 912 of the insurance code. S ee

Tex. Ins. Code Ann. §§ 912.001-.804 (West 2004).

5 Before 1991, the insurance business was regulated by the three-member board of insurance

and a commissioner of insurance, who was appointed by the board. In 1991, the legislature created

the department of insurance. See Act of May 27, 1991, 72d Leg., R.S., ch. 242, § 1.01, 1991 Tex.

Gen. Laws 939, 939. Two years later the legislature abolished the Board. Act of May 30, 1993, 73d

Leg., R.S., ch. 685, § 1.02, 1993 Tex. Gen. Laws 2559, 2561. All statutory references to the board

of insurance are now deemed to refer to the department of insurance or the commissioner of

insurance, as consistent with the respective duties of each. S ee Tex. Ins. Code Ann. § 31.007 (West

2004).

6

In the specific context of automobile insurance, the legislature created a regulatory

scheme for “standard” or “rate-regulated” insurers 4 in article 5.101of the insurance code. 5 In article

5.101, “rate” specifically means “ the charge for a particular line for each unit of exposure.” Tex. Ins.

Code Ann. art. 5.101, § 2(5) (West Supp. 2004) (emphasis added). The commissioner annually sets

a benchmark rate for each line of automobile insurance. Id

. §§ 2(1), 3 (West Supp. 2004). This

benchmark rate must be a range of value that “promotes stability in that line” and “produces rates

that are just, reasonable, adequate and not excessive for the risks to which they apply, and not

confiscatory.” I

d

. § 3(b). In promulgating this rate, the commissioner may consider a number of

factors, including: past and prospective loss experience; the peculiar hazards and experience of

individual risks; a reasonable margin for profit; expenses of operation of all insurers; the level and

range of rates and rate changes among insurers; and the investment and underwriting experience of

insurers. S ee id

. § 3(c). The list of factors the commissioner may consider is non-exclusive, and he

may employ “any other factor considered appropriate” by him. Id . § 3(c)(13). The commissioner

may only set the benchmark rate after holding annual public hearings, at which insurers have the

opportunity to present actuarial data and make recommendations. Id . § 3(d).7 This benchmark rate establishes a “flexibility ban d,” a range of rates from thirty

percent below to thirty percent above the benchmark rates set by the commissioner, within which

an insurer may i ncrease or decrease rate levels by classification without prior approval by the

commissioner. I

d

. §§ 2(3), 3(e). An insurer, however, must file its proposed rate with the

commissioner and include with its filing “any statistics to support the rates to be used by the insurer

as required by rule of the commissioner, including information necessary to evidence that the

calculation of the rate does not include disallowed expenses.” I d

. Filed rates within the flexibility

band are presumed to be valid and in compliance with the requirements of section 3(e). Id . § 3(f).

However, after holdi ng a hearing the commissioner may find that the filing does not meet the

requirements of section 3(e) and order the filed rate no longer in effect. I d

. An insurer may not use

a rate outside the upper and lower limits of the flexibility band without the prior approval of the

commissioner. Id . § 3(g).

Article 5.101 also lists factors that may not be considered wh en setting the benchmark

rate or a filed rate, whether within or outside of the flexibility band. I d

. § 3(c )(4), (d), (e), (o).

Among those factors, no rate may include insurer expenses related to administration, lobbying,

advertising, damages in a suit against the insurer for bad faith or as fines or penalties for violation

of law, contributions to organizations engaged in legislative advocacy or to social, relig ious,

political, or fraternal organizations, fees and penalties imposed on the insurer for civil or criminal

violations of law, or fees and asses sments paid to advisory organizations. I d

. § 3(o). In addition,

the commissioner may disallow “a ny unreasonably incurred expenses,” as determined by the

commissioner after notice and hearing. Id . § 3(o)(9).8 The questions of unreasonably high profits or danger of insolvency are at the heart

of the regulatory purpose. I d

. § 3A (West

Supp. 2004). Rates submitted by insurers to the

commission are considered excessive if “the rate is likely to produce a long-term profit that is

unreasonably high.” Id

. § 3A(b)(1). A rate is insufficient if it “endangers the insolvency of an

insurer using the rate.” I

d

. § 3A(b)(2)(A). Consumers must be guaranteed a stable insurance market;

article 5.101 creates stability by capping prices to ensure customers are not priced out of the market.

Id

. § 3A(b)(1). Conversely, the statute maintains stability by ensuring that prices are not set so low

as to risk the insurer’s solvency. I d

. § 3A(b)(2)(A). Finally, as a general provision no

insurer—including automobile insurers—may solicit or collect any “payment” in connection with

an insurance policy other than

(1) premiums;

(2) taxes;

(3) finance charges;

(4) policy fees;

(5) agent fees;

(6) service fees;

(7) inspection fees; or

(8) membership dues in a sponsoring organization.

Id . art. 21.35B(a).6 In its brief, Liberty Mutual refers to the article 5.101 rate as a “premium rate.” That term

does not appear in the statute. See Tex. Ins. Code Ann. art. 5.101 (West Supp. 2004).

9 When we consider articles 5.101 and 21.35B together, we note that article 5.101

creates a highly regulated envi ronment for automobile insurance with specific goals, factors, and

procedures. The commissioner may consider an insurer’s “expenses of operation” when setting the

benchmark rate under article 5.101. S ee id

. art. 5.101, § 3(c). In addition, the commissioner has

wide discretion to disallow “unreaso nably incurred expenses” when setting the benchmark rate, when

reviewing an insurer’s filed rate, and when approving or disapproving an insurer’s application for

a rate outside of the flexibility band. S ee id

. § 3(d), (e), (i), (o). In the context of this regulatory

scheme, article 21.35B acts as a limit on the ability of the commissioner to consider, or of an insurer

to include, the costs of business in establishing a rate. That is, because an insurer may collect no

payment other than premiums, taxes, finances charges, policy fees, and the other article 21.35B

factors, insurers may only include those costs when filing rates with the commissioner. In addition,

although the commissioner has broad authority to consider factors in addition to those enumerated

in section 3(c) of article 5.101, he may not consider any costs not enumerated in article 21.35B.

Liberty Mutual argues that the “premiums” allowed by article 21.35B are equivalent

t o article 5.101 “rates.” 6 It also asserts that article 5.101 does not cap the total charge to the

insurance consumer at the article 5.101 rate . However, the comprehensive regulatory scheme the

legislature created in article 5.101 supports the opposite conclusion. The rate is “ t he charge” for a

line of insurance. I

d

. § 2(5) (emphasis added). Not only must the commissioner hold extensive

hearings when setting the benchmark rate, but also insurers must file supporting statistics and10

information with their proposed rates even when that rate is within the flexibility band. Id . § 3(e).

I nsurers must include evidence to show that the calculation of the filed rate does not include

disallowed expen ses. I

d

. In the specific context of automobile insurance, disallowed expenses

include all expenses not included in article 21.35B and all those enumerated in section 3(o) of article

5.101, even if those section 3(o) expenses would ordinarily be permitted under article 21.35B. When

the legislature listed “premiums” as one of several “payments” an insurer could charge, it can only

have meant that a premium is a component charge of the “rate.”

Liberty Mutual asserts that the list of allowable charges in article 21.35B includes

on ly one article 5.101 regulated charge (premiums) and seven unregulated charges. If this

interpretation w ere correct, it would then follow that when the Commissioner sets rates he would

only be concerned with risk assessment and the appropriate dollar amounts to adequately cover those

risks—what Liberty Mutual calls the “premium.” This construction, however, does not comport with

the comprehensive regulatory intent expressed in the statute. When setting the benchmark rate, the

comm issioner is clearly allowed to consider factors other than risk-assessment—a reasonable margin

for profit, expenses of operations, and any other factor he deems appropriate. S ee id

. § 3(c). These

factors, in addition to the risk-assessment, include the categories of the permissib le payments of

article 21.35B.

As a result, Liberty Mutual’s interpretation would yield unregulated add-ons to the

price of a regulated insurance premium. Consumers would not be protected by the promises of

regulation because the commissioner would not be able to exercise any oversight over an insurer’s

“di scretionary” addition of article 21.35B factors to a consumer’s bill. In fact, its interpretation7 We note that our conclusion is consistent with American Alliance Insurance Co. v. Board

of Commissioners

, 126 S.W.2d 741 (Tex. Civ. App.—Austin 1939, writ ref’d), because our reading

of articles 5.101 and 21.35B requires the commissioner of insurance to include taxes when setting

the benchmark rate and when approving a filed rate.

11 would allow insurer s to charge consumers twice for each of the unregulated factors. An insurer

could first make recommendations to the commissioner for setting the benchmark rate and include

those costs in its suggestions. In filing its actual rates, the insurer would also be able to include those

factors. Then, when billing a consumer the insurer would be able to charge the regulated

rate—already based in part on article 21.35B factors in addition to a reasonable margin for profit and

the expenses of operation—and add the artic le 21.35B factors onto the regulated rate when

generating a policyholder’s total charge. This result would undermine the regulatory structure the

legislature created for automobile insurance.

We conclude that article 21.35B of the insurance code does not create a set of charges

immune from the commissioner’s rate-setting procedures. Rather, it limits the broad discretion of

the commissioner of insurance to include factors enumerated in article 21.35B. 7 Although both

parties briefed the issue whether or not the ATPA fee is a tax as listed in article 21.35B, we need not

determine that issue at this time. Griesing does not dispute that the ATPA fee may be included in

the article 5.101 rate, and in either case we have held that an insurer may not charge the ATPA fee

separate from the regulated rate. We overrule Liberty Mutual’s first issue on appeal.

Validity of 28 Texas Administrative Code Section 5.205

In Liberty Mutual’s second issue, it argues that the commissioner’s rule, as adopted

in 28 Texas Administrative Code section 5.205 (rule 5.205), allowing insurers to “ recoup” the ATPA8 Rule 5.205 requires the insurer to state on the automobile policy either

NOTICE: A fee of $ ______ is payable in addition to the premium due under

this policy. This fee reimburses the insurer, as permitted by 28 TAC § 5.205, for

the $ 1.00 fee per motor vehicle year required to be paid to the Automobile Theft

Prevention Fu n d under Texas Civil Statutes, Article 4413(37), § 10, which

became effective on June 6, 1991

or

NOTICE: The Automobile Theft Prevention Authority fee is payable in addition

12 fee from policyholders, is a valid exercise of the commissioner’s regulatory authority. As a result,

it believes th a t it can rely on rule 5.205 to add the ATPA fee onto the rate charged an individual

policyholder. See 28 Tex. Admin. Code § 5.205.

In exercising the powers and the broad authority granted by the legislature, the only

requirement of administrative agencies is that their rules and regulations must be consistent with the

constitution and statutes of this state. G erst v. Oak Cliff Sav. & Loan Ass’n

, 432 S.W.2d 702, 706

(Tex. 1968). In determining whether a particular administrative agency has exceeded its rule-making

powers, we must ask if the rule’s provisions are in harmon y with the general objectives of the act

involved. I

d

. A rule of an administrative agency is void if it conflicts with a statute. E mployees Ret.

Sys. v. Jones , 58 S.W.3d 148, 154 (Tex. App.—Austin 2001, no pet.).

By rule, the insurance commissioner authorizes each insurer to “recoup [the ATPA]

fee from the policyholder.” 28 Tex. Admin. Code § 5.205(a). Any insurer recouping the fee “must

include on or with each motor vehicle insurance policy.

. . a notice conforming with either paragraph

(1) or paragraph (2)” of the rule. Id . § 5.205(b). These notices inform the policyholder that the

ATPA fee “is payable in addition to the premium due under” the policy. Id . § 5.205(b)(1), (2). 8to the premium due under this policy. This fee reimburses the insurer, as

permitted by 28 TAC § 5.205, for the $ 1.00 fee per motor vehicle year required

to be paid to the Automobile Theft Prevention Fund under Texas Civil Statutes,

Article 4413(37), § 10, which became effective on June 6, 1991.

28 Tex. Admin. Code § 5.205(b)(1), (2) (2002).

13

To the extent that rul e 5.205 allows insurers to recoup the ATPA fee within the

regulated rate and mandates only that insurers include a written notice to consumers if they do so,

the rule is valid. We overrule Liberty Mutual’s second issue.

Breach of Contract

In its brief, Liberty Mutual states a third issue in this way: “Whether there is any

evidence that Liberty Mutual breached an automobile insurance contract or unlawfully charged the

ATPA fee.” However, Liberty Mutual presented no argument on this issue, either in the form of

cited authority or argument concerning the record. S ee Tex. R. App. P. 38.1(h). Bare assertions of

error, without citations to authority, waive error. T renholm v. Radcliff

, 646 S.W.2d 927, 934 (Tex.

1983); see also Fredonia State Bank v. General Am. Life Ins. Co.

, 881 S.W.2d 279, 284 (Tex. 1994)

(appellate court has discretion to wai ve issues due to inadequate briefing). W e overrule Liberty

Mutual’s third issue.

CONCLUSION

We hold that the rate approved by the commissioner of insurance under article 5.101

of the insurance code is the only amount that an automobile insurer may lawfully charge a

policyholder. In a regulated insurance industry, consumers may expect that their total charge has14

been approved by the commissioner. Article 21.35B of the insurance code, in permitting insurers

to collect several types of “payment” from a policyholder, limits the discretion of the commissioner

in considering factors when setting or approving rates. Thus, the Automobile Theft Prevention

Authority fee, regardless of its status as a tax or another type of charg e, must be included in the

article 5.101 rate if it is to be charged to a policyholder. As a result, Liberty Mutual must include

the ATPA fee in its article 5.101 rate in order to charge it to policyholders.

We also conclude that the commissioner’s rule allowing insurers to recoup the ATPA

fee fr om policyholders within the regulated rate does not contradict the legislature’s statutory scheme

of regulation. S ee 28 Tex. Admin. Code § 5.205. Rule 5.205 does not validate collection of the

ATPA fee outside of the article 5.101 regulated rate. In addition, the rule is void to the extent that

it could be read to permit that method of collection.

We affirm the judgment of the district court.

__________________________________________

W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: August 26, 2004