IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

September 2015 Term 

FILED 

November 9, 2015 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK No. 14-1059 SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

ERIE INSURANCE PROPERTY & CASUALTY COMPANY
 

AND WEST VIRGINIA INSURANCE COMMISSIONER,
 

Respondents Below, Petitioners
 

v. 

VINCENT J. KING, 

Petitioner Below, Respondent 

Appeal from the Circuit Court of Kanawha County
 

The Honorable John L. Cummings, Senior Status Judge
 

Civil Action No. 13-AA-95
 

REVERSED AND REMANDED
 

Submitted: October 14, 2015 

Filed: November 9, 2015 

Jill Cranston Rice, Esq. 

Andrew T. Kirkner, Esq. 

Dinsmore & Shohl LLP 

Morgantown, West Virginia 

and 

James D. Lamp, Esq. 

Matthew J. Perrry, Esq. 

Lamp Bartram Levy Trautwein & Perry, PLLC 

Huntington, West Virginia 

Attorneys for Erie Insurance Property & Casualty Company 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Andrew R. Pauley, Esq. 

WV Offices of the Insurance Commissioner 

Charleston, West Virginia 

Attorney for Insurance Commissioner of West Virginia 

Vincent J. King, Esq. 

Cross Lanes, West Virginia 

Pro Se 

Jeffrey M. Wakefield, Esq. 

Keith R. Hoover, Esq. 

Flaherty Sensabaugh Bonasso PLLC 

Charleston, West Virginia 

Attorneys for Amicus Curiae, West Virginia Insurance Federation 

Amy M. Smith, Esq. 

Steptoe & Johnson PLLC 

Bridgeport, West Virginia 

and 

Laurie C. Barbe, Esq. 

Steptoe & Johnson PLLC 

Morgantown, West Virginia 

Attorneys for Amici Curiae, American Insurance Association 

and Property Casualty Insurance Association of America 

JUSTICE LOUGHRY delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “On appeal of an administrative order from a circuit court, this Court 

is bound by the statutory standards contained in W.Va. Code § 29A-5-4(a) and reviews 

questions of law presented de novo; findings of fact by the administrative officer are 

accorded deference unless the reviewing court believes the findings to be clearly wrong.” 

Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). 

2. “In cases where the circuit court has amended the result before the 

administrative agency, this Court reviews the final order of the circuit court and the ultimate 

disposition by it of an administrative law case under an abuse of discretion standard and 

reviews questions of law de novo.” Syl. Pt. 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 

518 (1996). 

3. “Any challenge to an approved insurance rate by an aggrieved person 

or organization should be raised pursuant to the provisions of West Virginia Code § 

33-20-5(d) (1967) (Repl.Vol.2006) in a proceeding before the Insurance Commissioner.” 

Syl. Pt. 3, State ex rel. CitiFinancial, Inc. v. Madden, 223 W.Va. 229, 672 S.E.2d 365 (2008). 

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4. “In providing for a cause of action that permits the recovery of excess 

charges included in a consumer credit transaction pursuant to the provisions of West Virginia 

Code § 46A-3-109 (1998) (Repl.Vol.2006) and § 46A-5-101 (1996) (Repl.Vol.2006), the 

Legislature did not authorize the circuit courts to invade the jurisdiction of the Insurance 

Commissioner and conduct a reexamination of insurance rates previously approved by the 

Commissioner.” Syl. Pt. 2, State ex rel. CitiFinancial, Inc. v. Madden, 223 W.Va. 229, 672 

S.E.2d 365 (2008). 

5. “By design, insurance rate setting involves the prospective use of 

proposed rates which are calculated based on cost projections derived from past experience 

combined with a reasonable expectation of future losses and expenses.” Syl. Pt. 5, W.Va. 

Emp’rs’ Mut. Ins. Co. v. Bunch Co., 231 W.Va. 321, 745 S.E.2d 212 (2013). 

6. “‘The “clearly wrong” and the “arbitrary and capricious” standards of 

review are deferential ones which presume an agency’s actions are valid as long as the 

decision is supported by substantial evidence or by a rational basis.’ Syllabus Point 3, In re 

Queen, 196 W.Va. 442, 473 S.E.2d 483 (1996).” Syl. Pt. 5, Dale v. Oakland, 234 W.Va. 

106, 763 S.E.2d 434 (2014). 

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LOUGHRY, Justice: 

The petitioners, Erie Insurance Property and Casualty Company and the West 

Virginia Insurance Commissioner (“Erie” and “Commissioner” individually or “petitioners” 

collectively), appeal a September 12, 2014, order of the Circuit Court of Kanawha County. 

By that order, the circuit court reversed a July 10, 2013, administrative decision of the 

Commissioner and overruled the Commissioner’s prior approval of a rate, form, and product 

filing submitted by Erie. In this appeal, the petitioners contend that the circuit court 

misapplied the law by failing to afford deference to the Commissioner’s approval authority 

with respect to insurance rates and forms, made erroneous findings of fact, and improperly 

substituted its judgment for that of the Commissioner. Upon consideration of the parties’ 

briefs and arguments,1 the submitted record, and pertinent authorities, we find the circuit 

court erred in reversing the decision of the Commissioner. Accordingly, for the reasons set 

forth below, the circuit court’s order is reversed, and this case is remanded for entry of an 

order reinstating the Commissioner’s decision. 

1

At this juncture, the Court wishes to acknowledge and express appreciation for the 

contributions of amici curiae, West Virginia Insurance Federation, American Insurance 

Association, and Property Casualty Insurance Association of America, who filed briefs in 

support of the petitioners. 

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I. Factual and Procedural Background 

In early February 2010, Erie made a 398-page filing with the Commissioner 

seeking approval for a new product endorsement entitled “Rate Protection Endorsement” 

(“RPE”).2 Erie indicated that the RPE would provide a guarantee that a policy owner’s rate 

would not change once obtained, if three conditions remained static: the car(s), the driver(s), 

and the garaging address. In other words, the premium would remain the same even if there 

were other occurrences that would normally trigger a rate increase. Erie stated that the 

endorsement could be discontinued at any time and was optional.3 The price of the 

endorsement varied by coverage based upon an RPE scoring algorithm. The proposed 

effective date was June 1, 2010. Upon receipt of the filing, the Commissioner undertook an 

investigation and review that resulted in several amendments to the filing by Erie. 

2

According to Erie, the filing included “letters of explanation, WV PPA Proposed 

Manual Rate Pages, WV Proposed Manual Rate Pages, Declarations Page, Filing 

Memorandum, Draft of Marketing Brochure, Draft of Agent Marketing Aid, Important 

Notice, and WV Filing Fee Form.” 

3

The filing included a proposed notice that Erie planned to use to explain the RPE to 

consumers of the policy and buyers of the endorsement. The notice read, in pertinent part, 

as follows: 

The Rate Protection Endorsement is designed to smooth out 

rates over time, and it may initially result in an increase or 

decrease in your total premium depending on a number of 

factors. The endorsement gives you a level of predictability and 

control over your auto insurance premium . . . You may contact 

your insurance agent at any given time to remove the 

endorsement and receive the current non-smoothed rate. 

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Ultimately, the Commissioner approved the Erie filing, as amended, on April 15, 2010, with 

an effective date of July 1, 2010. 

In the spring of 2012, the respondent, Vincent J. King (“Mr. King”), traded his 

2009 Chevrolet Malibu for a 2012 model. Before doing so, Mr. King, an Erie insured, 

contacted his Erie insurance agent at the Garlow Insurance Agency to determine the impact 

the trade would have on his insurance premium. At that time, Mr. King was advised that the 

trade would result in less than a $3.00 annual increase. After making the trade, Mr. King 

notified his agent to substitute vehicles under his Erie policy, stating that he wanted the same 

coverage on his new car. Thereafter, Mr. King, who was unaware that Erie had obtained 

approval for its RPE, received his new policy which reflected a different premium that was 

actually less than the amount he had been quoted when he inquired about the premium prior 

to making his trade. Mr. King observed that while his total premium had decreased, the 

liability premium had increased by forty percent. Mr. King contacted his insurance agent and 

asked for a detailed explanation. According to Mr. King, he was told that the difference in 

premium was the result of “rate protection.” Upon further inquiry, Mr. King received a letter 

from Erie, dated November 16, 2012, stating, in pertinent part: 

The change in premium between the policy renewal on 

February 2, 2012 and the amendment effective April 26, 2012 

was due to the replacement of the 2009 vehicle with a 2012 

vehicle and the addition of the Rate Protection Endorsement. 

Prior to this time, your policy did not include the Rate Protection 

Endorsement. With the advent of this Endorsement, which 

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allows Customers to lock their premium until they make a 

qualifying change, ERIE introduced a different rating plan with 

a higher degree of pricing sophistication than exists in our 

traditional rating plan. 

The Garlow Agency confirmed that its standard business 

practice at the time of a qualifying change, such as the 

replacement of a vehicle, is to offer the Customer the option of 

adding the Rate Protection Endorsement, which you elected to 

do. ERIE’s private passenger auto rates in West Virginia did 

not change during this time period, so the premium change you 

experienced resulted from the change in vehicles and the 

addition of the Rate Protection Endorsement. 

If the replacement of the existing vehicle with the newer 

vehicle had been the only change, then the premium changes for 

the individual coverages would have coincided with your 

expectations. Adding the Rate Protection Endorsement 

provided you with an additional policy feature, while at the same 

time reducing the overall premium. Because the rating plan 

associated with the Endorsement differs from ERIE’s traditional 

rating plan, the price of a policy endorsed with Rate Protection 

may be higher, or lower, than it would be without the 

Endorsement. In your case, the resulting changes by coverage 

were an increase to the liability premium and a decrease in the 

physical damages premiums, for an overall premium decrease. 

Mr. King was certain that he had not been offered the RPE and had not 

consented to the addition of the RPE to his policy despite Erie’s assertion to the contrary. 

Unsatisfied with Erie’s responses to his inquiries, Mr. King sent a letter to Erie on December 

5, 2012, requesting a hearing pursuant to West Virginia Code § 33-20-9 (2011).4 Responding 

4

West Virginia Code § 33-20-9 provides: 

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to Mr. King’s request, Erie made Cody Cook, the Vice President and Product Manager of its 

Personal Lines Division, available for questioning by Mr. King on February 1, 2013. Erie 

also provided approximately 400 pages of publicly-accessible documents related to Erie’s 

RPE rate filing for Mr. King to review. According to Mr. King, after eliciting testimony 

from Mr. Cook, he sought to question Phil Garlow, his insurance agent, but Erie stopped the 

hearing because Mr. Garlow requested time to obtain counsel. While Mr. King believed the 

hearing was going to continue at a later date, Erie instead filed a Petition for Declaratory 

Ruling with the Commissioner, seeking a declaratory ruling as to the scope and applicability 

of the provisions of West Virginia Code § 33-20-9. In response, Mr. King filed an 

(a) Every rating organization and every insurer which 

makes its own rates shall, within a reasonable time after 

receiving written request therefor and upon payment of such 

reasonable charge as it may make, furnish to any insured 

affected by a rate made by it, or to the authorized representative 

of such insured, all pertinent information as to such rate. 

(b) Every rating organization and every insurer which 

makes its own rates shall provide within this State reasonable 

means whereby any person aggrieved by the application of its 

rating system may be heard in person or by his authorized 

representative, on his written request to review the manner in 

which such rating system has been applied in connection with 

the insurance afforded him. If the rating organization or insurer 

fails to grant or reject such request within thirty days after it is 

made, the applicant may proceed in the same manner as if his 

application had been rejected. Any party affected by the action 

of such rating organization or such insurer on such request may, 

within thirty days after written notice of such action, appeal to 

the commissioner, who, after notice and hearing, may affirm or 

reverse such action. 

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administrative complaint against Erie titled “Petition for Hearing and Issuance of Subpoenas” 

pursuant to West Virginia Code §§ 33-20-5(d) (2011),5 33-2-13 (2011)6 and 33-2-4 (2011),7 

seeking a hearing before the Commissioner to determine “whether Erie accurately 

5

West Virginia Code § 33-20-5(d) provides: 

Any person or organization aggrieved with respect to any 

filing which is in effect may demand a hearing thereon. If, after 

such hearing, the commissioner finds that the filing does not 

meet the requirements of this article, he shall issue an order 

specifying in what respects he finds that such filing fails to meet 

the requirements of this article, and stating when, within a 

reasonable period thereafter, such filing shall be deemed no 

longer effective. Said order shall not affect any contract or 

policy made or issued prior to the expiration of the period set 

forth in said order. 

6

West Virginia Code § 33-2-13 provides, in pertinent part: 

The commissioner may call and hold hearings for any 

purpose deemed necessary by him for the performance of his 

duties. He shall hold hearings when required by the provisions 

of this chapter or upon a written demand therefor by a person 

aggrieved by any act or failure to act by the commissioner or by 

any rule, regulation or order of the commissioner. 

7

West Virginia Code § 33-2-4 provides, in relevant part: 

(a) For the purpose of any investigation or proceeding 

under this chapter, the commissioner or any officer designated 

by him or her may administer oaths and affirmations, subpoena 

witnesses, compel their attendance, take evidence and require 

the production of any books, papers, correspondences, 

memoranda, agreements or other documents or records which 

the commissioner considers relevant or material to the inquiry. 

The commissioner’s authority to subpoena witnesses and 

documents outside the state shall exist to the maximum extent 

permissible under federal constitutional law. 

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represented the risk with respect to its Rate Protection Endorsement and corresponding Rate 

and Rule Manual pages, and whether prior approvals thereof should now be withdrawn.” 

Concluding that a hearing would serve no useful purpose, the Commissioner 

issued a twenty-page order on July 10, 2013, addressing both Erie’s request for a declaratory 

ruling and Mr. King’s administrative complaint. Denying Mr. King relief, the order 

contained detailed findings of fact and conclusions of law, declaring that upon re-review, the 

Commissioner’s prior approval of Erie’s RPE was “in proper accordance with West Virginia 

law.” 

Following the issuance of the Commissioner’s order, Mr. King filed an appeal 

in the Circuit Court of Kanawha County pursuant to the State Administrative Procedures Act 

(“APA”),8 asserting, inter alia, that the Commissioner was statutorily required to withdraw 

the prior approval of Erie’s RPE and that the Commissioner was clearly wrong with respect 

to certain findings of fact.9 The circuit court heard oral arguments on the matter on August 

8

West Virginia Code § 29A-5-4(a) (2015) provides, in pertinent part: “Any party 

adversely affected by a final order or decision in a contested case is entitled to judicial review 

thereof under this chapter, but nothing in this chapter shall be deemed to prevent other means 

of review, redress or relief provided by law.” 

9

Mr. King did not appeal the denial of his request for a hearing before the 

Commissioner. 

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1, 2014. Thereafter, on September 12, 2014, the circuit court issued its final order reversing 

the Commissioner’s decision. The order provides in relevant part: 

Ordinarily, the undersigned would be inclined to remand 

this matter for further proceedings at the administrative level 

but, at oral argument, counsel for the Commissioner made clear 

that the Commissioner’s overriding concern is the perceived 

ramifications of a private citizen challenging the acts of an 

insurer, more so than the merits of any such challenge. Remand, 

therefore, would be an exercise in futility and [Mr. King] would 

simply refile his appeal here. Accordingly, this Court having 

reviewed the same evidence, and having found that Erie’s RPE 

violates Chapter 33; contains misleading clauses; that the title 

itself is misleading; that it is being solicited by deceptive 

marketing; that its benefits are unreasonable in relation to the 

premium charged; and is not in the public’s interest, but the 

Commissioner having failed to withdraw approval as he was 

statutorily required to do, the Order appealed from is hereby 

REVERSED and continued approval of the RPE is 

OVERRULED. The Court leaves to the discretion of the 

Commissioner an orderly process by which policies currently 

subject to RPE are otherwise renewed and converted to 

traditional rating also previously approved. Alternatively, 

nothing herein precludes Erie from again seeking approval, with 

proper fiscal disclosure, deletion of misleading clauses and title, 

neutral rating, proper consumer advertising and agent training, 

all as the Commissioner in full compliance with West Virginia 

law might allow, on a strictly voluntary basis by the consumer. 

Upon entry of the circuit court’s order, this appeal followed.10 

10By agreement of the parties, the circuit court’s order was stayed pending this appeal. 

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II. Standard of Review 

This is an administrative appeal and our review is governed by the same 

statutory standard that applied to the circuit court’s consideration of this matter. As we 

explained in syllabus point one of Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 

(1996): 

On appeal of an administrative order from a circuit court, 

this Court is bound by the statutory standards contained in 

W.Va.Code § 29A-5-4(a) and reviews questions of law 

presented de novo; findings of fact by the administrative officer 

are accorded deference unless the reviewing court believes the 

findings to be clearly wrong. 

We further advised in Muscatell that 

[i]n cases where the circuit court has amended the result 

before the administrative agency, this Court reviews the final 

order of the circuit court and the ultimate disposition by it of an 

administrative law case under an abuse of discretion standard 

and reviews questions of law de novo. 

Id. at 590, 474 S.E.2d at 520, syl. pt. 2. With these standards in mind, we determine whether 

the circuit court erred in reversing the decision of the Commissioner and overruling the prior 

approval of Erie’s RPE. 

III. Discussion 

The primary focus of the arguments in this appeal concerns whether the circuit 

court engaged in an improper re-examination of Erie’s rate and form policy filing for its RPE 

that was approved by the Commissioner in 2010. In that regard, the petitioners contend the 

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circuit court erroneously conducted a de novo review of the prior approval of the RPE and 

unequivocally substituted its own judgment for that of the Commissioner contrary to this 

Court’s decisions in State ex rel. CitiFinancial, Inc. v. Madden, 223 W.Va. 229, 672 S.E.2d 

365 (2008) (“CitiFinancial I”); West Virginia Employers’ Mutual Insurance Co. v. Bunch 

Co., 231 W.Va. 321, 745 S.E.2d 212 (2013) (“Bunch”); and Lightner v. Riley, 233 W.Va. 

573, 760 S.E.2d 142 (2014) (“CitiFinancial II”). By not affording deference to the 

Commissioner’s decision concerning the validity of the RPE as required by this trilogy of 

cases, the petitioners assert that the circuit court misapplied the standard of review for 

administrative appeals set forth in West Virginia Code § 29A-5-4(g).11 In addition, the 

petitioners argue that the circuit court’s decision is clearly wrong because the findings of fact 

contained therein are contrary to the evidence set forth in the record. By making erroneous 

11West Virginia Code § 29A-5-4(g) provides: 

The court may affirm the order or decision of the agency 

or remand the case for further proceedings. It shall reverse, 

vacate or modify the order or decision of the agency if the 

substantial rights of the petitioner or petitioners have been 

prejudiced because the administrative findings, inferences, 

conclusions, decision or order are: 

(1) In violation of constitutional or statutory provisions; or 

(2) In excess of the statutory authority or jurisdiction of the 

agency; or 

(3) Made upon unlawful procedures; or 

(4) Affected by other error of law; or 

(5) Clearly wrong in view of the reliable, probative and 

substantial evidence on the whole record; or 

(6) Arbitrary or capricious or characterized by abuse of 

discretion or clearly unwarranted exercise of discretion. 

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findings of fact and failing to afford deference to the Commissioner’s decision, the 

petitioners submit that the circuit court has invaded the Commissioner’s rate making 

authority thereby violating the separation of powers doctrine set forth in our State 

Constitution. The end result according to the petitioners is an obfuscation of the different 

roles of the Commissioner and the judiciary that will have the effect of destabilizing the 

regulation of insurance in West Virginia.12 

Maintaining this case does not implicate the Commissioner’s rate making 

authority, Mr. King argues that the circuit court applied the appropriate standard of review, 

correctly finding that several of the Commissioner’s findings of fact were clearly wrong and 

that the Commissioner encroached upon judicial functions in reaching several of his 

conclusions of law. Mr. King further contends the circuit court did not err in determining 

that this Court’s decisions in CitiFinancial I, Bunch, and CitiFinancial II were not relevant 

to this matter. In that regard, he states that this case is distinguishable from CitiFinancial I 

because it is an administrative appeal as opposed to a collateral civil action. He claims that 

12The Commissioner, separate and apart from Erie, argues that the circuit court’s 

decision must be reversed because Mr. King is not an “aggrieved party” due to the fact that 

application of the RPE to his policy resulted in a decrease of his total premium. The 

Commissioner maintains that absent the status of an “aggrieved party,” Mr. King had no 

basis to request a hearing and review of the RPE under West Virginia Code § 33-2-13. Upon 

review of the record, we find that we need not address this issue because the proceedings 

before the Commissioner were initiated by Erie upon the filing of its petition for a 

declaratory ruling concerning the scope of West Virginia Code § 33-20-9. 

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Bunch and CitiFinancial II are distinguishable because those decisions focused upon whether 

there was a failure to exhaust administrative remedies due to the Commissioner’s refusal to 

hold a hearing. Mr. King points out that he did not appeal the Commissioner’s decision 

because he was denied a hearing but rather simply asserted there was no basis in the record 

for certain findings of fact and conclusions of law rendered by the Commissioner. In sum, 

Mr. King argues that the circuit court’s decision to reverse the Commissioner’s order was 

based on the record and application of the appropriate standard of review under the APA. 

Despite Mr. King’s claim that this case is “limited to the failure to withdraw 

approval of the Rate Protection Endorsement, not the rates applicable thereto,” the record in 

this case shows that from the outset, he has maintained that “the benefits of the RPE are 

unreasonable in relation to the premium charged.” In fact, it was the resulting forty percent 

increase in Mr. King’s liability premium through the addition of the RPE to his insurance 

policy that caused him to first inquire about the changes thereto. Thus, Mr. King’s assertion 

that this case does not involve rate making rings hollow. Clearly, this is an administrative 

appeal of a rate and form filing approval. As such, the circuit court committed clear error 

by refusing to apply the holdings in this court’s trilogy of cases setting forth the parameters 

of judicial involvement when matters of insurance rate making are at issue. A review of those 

cases illustrates not only the relevance of that precedent but how the circuit court’s rulings 

in this matter are in direct conflict with those decisions. 

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In CitiFinancial I, this Court was required to determine whether an individual, 

Paul W. Lightner, could challenge the reasonableness of an amount charged for credit 

insurance in connection with certain loans through a civil action. The lender, CitiFinancial, 

initiated the civil action when Mr. Lighter defaulted on another loan. CitiFinancial sought 

a writ of prohibition from this Court arguing, inter alia, that whether a charge for insurance 

is unreasonable or excessive is a decision for the Commissioner and, therefore, the circuit 

court should be prohibited from allowing Mr. Lighter to pursue the matter in the underlying 

civil action. Upon examination of the West Virginia Consumer Credit Protection Act and 

the relevant insurance statutes, this Court concluded that the Commissioner’s authority over 

matters involving insurance rate making and insurance-related forms was unquestionable. 

Accordingly, we held that “[a]ny challenge to an approved insurance rate by an aggrieved 

person or organization should be raised pursuant to the provisions of West Virginia Code § 

33-20-5(d) (1967) (Repl.Vol.2006) in a proceeding before the Insurance Commissioner.” 

CitiFinancial I, 223 W.Va. at 231, 672 S.E.2d at 367, syl. pt. 3. In so holding, we explained 

that 

factual evidence on issues such as loss ratios and rates of return 

is required to disprove the reasonableness of an established 

insurance rate. These issues, due to their highly specialized 

nature, are typically reserved to the Commissioner’s bailiwick. 

See W.Va.Code §§ 33-20-3; 33-20-4, 33-6-30(b). It stands to 

reason that if a circuit court is allowed to invade this 

administrative arena and reexamine the issue of whether a given 

insurance rate is reasonable or excessive, the judiciary will 

necessarily be substituting its determinations as to permissible 

insurance rates for those previously determined by the 

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Commissioner and supplanting its opinion in matters expressly 

delegated to the Commissioner’s expertise and jurisdiction. A 

further peril that cannot be overlooked is that judicial 

intervention in the rate making area would open the door to 

conflicting decisions amongst the various circuits regarding 

what constitutes an unreasonable or excessive charge for credit 

insurance. In this manner then, the uniformity of regulation that 

the Legislature has established by delegating all matters 

involving rate making and rate filings to the Commissioner is 

certain to be infringed if circuit courts or jurors are permitted to 

second guess the reasonableness of rates previouslyapproved by 

the Commissioner. 

223 W.Va. at 237, 672 S.E.2d at 373. We also observed that in 2002, the Legislature 

amended West Virginia Code § 33-6-30 adding a presumption of statutory compliance for 

policy forms and rates approved by the Commissioner.13 We determined that 

the inclusion of the statutory language that creates a 

presumption of compliance occurred as part of the Legislature’s 

attempt to strengthen the rate making powers of the 

Commissioner. See W.Va.Code § 33-6-30(b), (c) (2002 

amends). Through its adoption of this statutory language, the 

Legislature established a procedural mechanism by which 

insurance rates are presumed to be in compliance with all 

regulatory requirements upon their approval by the 

Commissioner. While approved insurance rates are still subject 

to challenge, the burden for disproving the validity of such rates 

is placed on the entity who seeks to set the rates aside. 

223 W.Va. at 239, 672 S.E.2d at 375. Accordingly, we concluded that 

13West Virginia Code § 33-6-30(c) (2011) provides, in pertinent part: “Where any 

insurance policy form, including any endorsement thereto, has been approved by the 

commissioner, and the corresponding rate has been approved by the commissioner, there is 

a presumption that the policy forms and rate structure are in full compliance with the 

requirements of this chapter.” 

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[i]n providing for a cause of action that permits the 

recovery of excess charges included in a consumer credit 

transaction pursuant to the provisions of West Virginia Code § 

46A-3-109 (1998) (Repl.Vol.2006) and § 46A-5-101 (1996) 

(Repl.Vol.2006), the Legislature did not authorize the circuit 

courts to invade the jurisdiction of the Insurance Commissioner 

and conduct a reexamination of insurance rates previously 

approved by the Commissioner. 

223 W.Va. at 231, 672 S.E2d. at 367, syl. pt. 2. 

We, of course, recognized in CitiFinancial I that “[a]ny ruling issued by the 

Commissioner on the issue of the reasonableness of insurance rates or compliance with 

statutory provisions is a final order that is subject to the provisions of the Administrative 

Procedures Act (‘APA’).” Id. at 239, 672 S.E.2d at 375. In other words, “judicial review of 

a determination by the Commissioner on the issue of whether insurance rates are reasonable 

and in compliance with statutory requirements does exist.” Id. We proceeded to set forth the 

parameters of that judical review in Bunch. 231 W.Va. 321, 745 S.E.2d 212. 

In Bunch, the petitioners, the West Virginia Employer’s Mutual Insurance 

Company doing business as BrickStreet Mutual Insurance Company (“BrickStreet”) and the 

Commissioner, appealed a decision of the Circuit Court of Kanawha County that reversed 

and vacated an administrative order of the Commissioner upholding previously approved 

workers’ compensation insurance policy rates. Specifically at issue was the expense of an 

agent commission that was included in the worker’s compensation premium BrickStreet was 

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charging to the Bunch Company (“Bunch”) and other similarlysituated insureds. Complying 

with the dictates of CitiFinancial I, Bunch filed a consumer complaint with the 

Commissioner alleging that BrickStreet was “unlawfully charging an agent commission for 

its ‘direct write’ business.” Id. at 325, 745 S.E.2d at 216. Denying Bunch relief, the 

Commissioner’s administrative order provided: 

5. The Insurance Commissioner finds there is no factual 

dispute concerning the filing and approval of the rates and forms 

of BrickStreet . . . and as a matter of law the rate filings and 

BrickStreet’s use of the same should be upheld. 

6. The Insurance Commissioner finds that the rates 

charged by BrickStreet were reasonable in relation to the 

benefits provided due to the fact that certain administrative costs 

and/or expenses are incurred by BrickStreet in handling direct 

written business which would otherwise be handled by 

appointed agents. 

Id. The Commissioner also found that Bunch had not provided any information to rebut the 

presumption of statutory compliance that attaches to insurance rates pursuant to West 

Virginia Code § 33-6-30(c). 231 W.Va. at 325, 745 S.E.2d at 216. 

Bunch appealed the decision, and the circuit court reversed and vacated the 

Commissioner’s order. The circuit court ruled that “the Commissioner erred by allowing 

BrickStreet to charge Bunch a commission when no correlative expense had been incurred” 

and that “the Commissioner erred in finding the subject insurance rates were reasonable.” 

Id. at 325-26, 745 S.E.2d at 216-17. Upon review, we agreed with the petitioners’ assertion 

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that the circuit court had “engaged in a rexamination of approved insurance rates and 

wrongly supplanted its opinion for that of the Commissioner in area that has been expressly 

delegated to the Commissioner’s expertise.” Id. at 328, 745 S.E.2d at 219. We noted, 

Judge Kaufman, during the hearing on this matter, was 

quick to recognize two fundamental concerns presented by this 

case: encroachment on the regulatory rate making process and 

separation of powers. Notwithstanding the trial court’s 

appreciation of these issues, it proceeded to breach established 

precepts pertaining to both of those juridical areas. Specifically 

failing to heed this Court’s recognition in State ex rel. Crist v. 

Cline, 219 W.Va. 202, 632 S.E.2d 358 (2006), “that we . . . give 

deference to [the Insurance Commissioner’s] interpretation, so 

long as it is consistent with the plain meaning of the governing 

statute,” the trial court substituted its judgment for that of the 

Commissioner on a matter that clearly fell within the rate 

making area of the Commissioner’s expertise. Id. at 211, 632 

S.E.2d at 367. As we recognized in Appalachian Power Co. v. 

State Tax Dep’t, 195 W.Va. 573, 466 S.E.2d 424 (1995), “[a]n 

inquiring court–even a court empowered to conduct de novo 

review–must examine a regulatory interpretation of a statute by 

standards that include appropriate deference to agency expertise 

and discretion.” Id. at 582, 466 S.E.2d at 433. Ignoring the 

deference that the Commissioner was entitled to in connection 

with the interpretation of its own regulation, the trial court 

encroached upon a matter that has been expressly delegated to 

the executive branch of our state government. See 

Citifinancial, 223 W.Va. at 237, 672 S.E.2d at 373. In doing 

so, the trial court neglected to regard this Court’s admonition in 

Citifinancial that “the uniformity of regulation that the 

Legislature has established by delegating all matters involving 

rate making and rate filings to the Commissioner is certain to be 

infringed if circuit courts or jurors are permitted to second guess 

the reasonableness of rates previously approved by the 

Commissioner.” Id. 

231 W.Va. at 331-32, 745 S.E.2d at 222-23 (footnote omitted). 

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Less than a year after Bunch was decided, Mr. Lightner and CitiFinancial 

returned to this Court along with Triton Insurance Company, the entity that issued the credit 

insurance policies sold to Mr. Lightner by CitiFinancial. Pursuant to the decision of this 

Court in CitiFinancial I, Mr. Lightner had filed a consumer complaint with the 

Commissioner challenging the rates for the credit insurance he had purchased and seeking 

to have the Commissioner withdraw approval for the rate filings of Triton over a period of 

fourteen years. 233 W.Va. at 576, 760 S.E.2d at 145. Upon receipt of Mr. Lightner’s 

consumer complaint, the Commissioner undertook an extensive investigation of his 

allegations, as well as all of Triton’s rate filings in West Virginia. Id. at 577, 760 S.E.2d at 

146. At the conclusion of the investigation, the Commissioner issued a decision concluding 

(1) that Triton did comply with W.Va. Code § 33-20-3 (2006) in 

its filings and that Triton’s rate filings did not violate W.Va. 

Code § 33-20-3; (2) that there is “no factual dispute as 

concerning the filing and approval of the rates and forms of 

Triton Insurance Company” and that the rates charged by Triton 

were reasonable in relation to the benefits provided; and (3) that 

a hearing upon the administrative complaint would serve no 

useful purpose and, therefore, the request for a hearing was 

denied. 

233 W.Va. at 578, 760 S.E.2d at 147 (footnote omitted). 

Mr. Lighter appealed the decision to the circuit court, which upheld the 

Commissioner’s rulings. He then sought relief from this Court. While Mr. Lightner’s 

primary assignment of error in CitiFinancial II concerned the Commissioner’s refusal to 

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conduct a hearing on his complaint, he also challenged the circuit court’s decision to uphold 

the Commissioner’s finding that the insurance charges were not excessive and were 

reasonable in relation to the benefits provided. Id. at 579, 760 S.E.2d at 148. Mr. Lightner 

maintained that the Commissioner had offered no data or evidence to support his conclusion 

that the lenders rates were reasonable in relation to the benefits provided and that the circuit 

court’s order added nothing to the Commissioner’s findings. Id. Noting that our review was 

controlled by the provisions of West Virginia Code § 29A-5-4(g),14 we found that “the 

Commissioner performed due diligence and questioned the rate filings, but he received 

adequate documentation and explanation from Triton prior to approving the rates from 1994 

though 2003.” 233 W.Va. at 582, 760 S.E.2d at 151. Accordingly, we affirmed the finding 

that the rates charged for the credit insurance were reasonable. Id. 

As in CitiFinancial II, before rendering a decision in this matter, the 

Commissioner undertook another review of Erie’s rate and form filing for the RPE. Finding 

the prior approval to be proper and in accordance with West Virginia law, the Commissioner 

concluded: 

4. Pursuant to W.Va. Code § 33-6-30(c) (2002), “[w]here 

any insurance policy form, including any endorsement thereto, 

has been approved by the commissioner, and the corresponding 

rate has been approved by the commissioner, there is a 

presumption that the policy forms and rate structure are in full 

14CitiFinancial II, 233 W.Va. at 578, 760 S.E.2d at 147. 

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compliance with the requirements of this chapter,” the Insurance 

Commissioner finds that the rates, forms and/or products were 

approved by the Insurance Commissioner and, therefore, 

presumed to be in compliance with Chapter 33 of the W.Va. 

Code. Further, the Commissioner has been provided with no 

information that would in fact rebut such a presumption despite 

the voluminous filings and argument of [Mr. King]. 

5. The Insurance Commissioner finds there is no factual 

dispute concerning the filing and approval of the rates, forms 

and/or products of Erie as referenced herein this Order and the 

subject of [Mr. King’s] administrative complaint and as a matter 

of law the rate, form and/or product filings and Erie’s use of the 

same should be upheld. 

. . . . 

9. The Insurance Commissioner finds that the rates 

charged by Erie were reasonable in relation to the premium 

charged in that the benefits provided and the fact that the filing 

took into account the ramifications and usage of the optional 

endorsement known as the Rate Protection Endorsement and 

that sufficient and adequate if not substantial benefits are 

provided to policyholders who have purchased this product and 

stay within the confines of the program. 

. . . . 

15. The Insurance Commissioner finds and concludes 

that there are no violations of the West Virginia Code in regard 

to the Erie RPE filing and its implementation of the same to this 

policyholder, [Mr.] King. 

16. The Insurance Commissioner finds and concludes 

that the filing does not contain or incorporate by reference any 

inconsistent, ambiguous or misleading clauses, or exceptions 

and conditions which deceptively affect the risk to be assumed 

in the general coverage contract. 

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17. The Insurance Commissioner finds and concludes 

that there are no other provisions of the filing that are 

misleading or were misleading in how it was implemented to 

this policyholder, [Mr.] King. 

18. The Insurance Commissioner finds and concludes 

that the policies sold to [Mr.] King were not procured through 

deceptive advertising. 

19. The Insurance Commissioner finds and concludes 

that the benefits of the RPE and the filing are reasonable in 

relation to the premium charged. 

20. The Insurance Commissioner finds and concludes 

that the coverage provided therein the filing by Erie concerning 

the RPE product was sufficiently broad to be in the public 

interest. 

In reversing the Commissioner’s decision, the circuit court’s order reflects that 

no deference was accorded to the Commissioner’s determination as to the validity of Erie’s 

rate and form filing for its RPE as required by West Virginia Code § 33-6-30(c) and our 

decisions in CitiFinancial I, Bunch, and CitiFinancial II. Failing to mention the presumption 

of statutory compliance embedded in West Virginia Code § 33-6-30(c) and dismissing the 

trilogy of cases in a summary fashion, the circuit court proceeded by express admission to 

“conduct[] its own research and analysis.” The end result was a reversal of the 

Commissioner’s decision based upon misapplication of the law, a complete disregard of the 

record, and an improper substitution of the circuit court’s opinion. 

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Despite our admonition in Bunch that a court may not reexamine matters that 

clearly fall within the Commissioner’s rate making authority and substitute its judgment for 

that of the Commissioner, the trial court proceeded to do that very thing in this case by 

concluding that the benefits of the RPE are “unreasonable in relation to the premium 

charged.” Relegating its finding in this regard to a footnote, the circuit court discredited the 

Commissioner’s determination on this issue on the basis that the 

RPE resulted in a 40% increase in [Mr. King’s] personal 

liability rate . . . RPE has resulted in a net gain to ERIE . . . . The 

Court has not found any cost-benefit analysis or any other entry 

in the Record to support the Commissioner’s finding that the 

benefits provided by the RPE are reasonable in relation to the 

increased liability premium. 

The circuit court’s conclusion that the benefits of the RPE are unreasonable in 

relation to the premium charged overlooked the fact that Mr. King’s overall premium actually 

decreased by the addition of the RPE to his policy. More importantly, the circuit court failed 

to recognize that when Erie sought approval for its RPE, the Commissioner made the 

decision based on 398 pages of documentation, which included experience data and 

projections that Erie had available to it at that time. In Bunch, we explained that “[b]y 

design, insurance rate setting involves the prospective use of proposed rates which are 

calculated based on cost projections derived from past experience combined with a 

reasonable expectation of future losses and expenses.” 231 S.E.2d at 323, 745 S.E.2d at 214, 

syl. pt. 5. Rather than acknowledging the highly complex nature of insurance rate setting and 

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this Court’s recognition that the Legislature has made clear that “rate making [is] not a matter 

intended for the courts,”15 the circuit court second guessed the reasonableness of the rates 

previously approved by the Commissioner. 

In addition to erroneously injecting itself into a rate making matter, the circuit 

court made findings of fact that were contraryto overwhelming evidence in the record below. 

In particular, the circuit court found that the RPE violates Chapter 33; is misleading based 

on its title and clauses contained within; is being solicited by deceptive marketing practices; 

and is not in the public’s interest. The circuit court made these findings by relying, in part, 

upon portions of Mr. Cook’s testimony elicited by Mr. King that were clearly taken out of 

context or simply misunderstood. Contrary to the circuit court, the Commissioner found the 

RPE was not ambiguous, unclear, or in any way misleading nor was the product deceptively 

marketed. The Commissioner pointed out in his decision that Mr. King was given the ability 

to remove the RPE from his policy on more than one occasion, yet he declined to so. Further, 

the evidence indicated that Mr. King had been provided the “Important Notice” issued by 

Erie that detailed the implementation of the product. This Court has held that “‘[t]he “clearly 

wrong” and the “arbitrary and capricious” standards of review are deferential ones which 

presume an agency’s actions are valid as long as the decision is supported by substantial 

evidence or by a rational basis.’ Syllabus Point 3, In re Queen, 196 W.Va. 442, 473 S.E.2d 

15Bunch, 231 W.Va. at 331, 745 S.E.2d at 222. 

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483 (1996).” Syl. Pt. 5, Dale v. Oakland, 234 W.Va. 106, 763 S.E.2d 434 (2014). In this 

instance, the Commissioner’s decision was clearlysupported bysubstantial evidence, and the 

circuit court abused its discretion in substituting its judgment. 

Through the trilogy of cases discussed above, this Court has clearly prescribed 

the role of a reviewing court tasked with an administrative appeal of a matter that implicates 

the rate making authority of the Commissioner. Further, the Legislature had mandated by 

express statutory directive that “[w]here any insurance policy form, including any 

endorsement thereto, has been approved bythe commissioner, and the corresponding rate has 

been approved by the commissioner, there is a presumption that the policy forms and rate 

structure are in full compliance with the requirements of this chapter.” W.Va. Code § 33-6­

30(c). In addition, we have made clear that under the APA, a reviewing court must accord 

deference to the findings of fact made by an administrative agency unless that court believes 

the findings to be clearly wrong. Muscatell, 196 W.Va. at 590, 588 S.E.2d at 520, syl. pt. 1. 

That deference presumes that the agency’s actions are valid if the decision is supported by 

substantial evidence. Dale, 234 W.Va. at 107, 763 S.E.2d at 435, syl. pt. 5. In this instance, 

the circuit court acted independent of these established precepts and substituted its judgment 

for that of the Commissioner. 

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IV. Conclusion 

Accordingly, based on the foregoing, we reverse the September 12, 2014, order 

of the Circuit Court of Kanawha County and remand this case for entry of an order 

reinstating the July 10, 2013, decision of the Commissioner. 

Reversed and remanded. 

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