IF

FOR PUBLICATIONS

ATTORNEY FOR APPELLANT:	ATTORNEYS FOR APPELLEE:

DONALD K. MCCLELLAN	JEFFREY A. MODISETT

McClellan, McClelland & Arnold	Attorney General of Indiana

Muncie, Indiana	

			MARY ANN WEHMUELLER

			Deputy Attorney General

			Indianapolis, Indiana			

	IN THE

	COURT OF APPEALS OF INDIANA

AUTO-OWNERS INSURANCE COMPANY,	)

			)

	Appellant-Respondent,	)

			)

		vs.	)	No. 27A05-9612-CV-487

			)

STATE OF INDIANA,	)

			)

	Appellee-Petitioner.	)

	APPEAL FROM THE GRANT CIRCUIT COURT

	The Honorable Thomas R. Hunt, Judge

	Cause No.  27C01-9602-MI-85

	(Handdown Date)March 20, 199788

	MEMORANDUM DECISION - NOT FOR PUBLICATIONoOPINION - FOR PUBLICATION

RUCKER, Judge

	As part of a civil investigative proceeding the State of Indiana through the offices of the Indiana Attorney General filed a motion with the trial court seeking to compel Auto-

Owners Insurance Company (Auto-Owners) to produce business records and answer

interrogatories.  The trial court granted the motion.  Auto-Owners now appeals contending

the trial court abused its discretion in so doing.  We disagree and therefore affirm.

	Indiana Code § 4-6-3-3 instructs the Attorney General to investigate violations of

various business and trade laws of this state and authorizes discovery pursuant to such an

investigation.1  In accordance with this authority the Attorney General initiated an investigation into the affairs of Auto-Owners.  More specifically the Aattorney Ggeneral sought

to determine whether Auto-Owners was in violation of the Deceptive Consumer Sales Act

and the Salvage Motor Vehicles Act.

	The essential facts giving rise to the Attorney General's investigation are these.  Auto-

Owners is a Michigan domiciled insurance company doing business in Indiana.  It writes insurance policies for new and used motor vehicles and acquires thousands of vehicles that

have been declared a total loss.  In 1995 the consumer protection division of the Attorney

General's office received a complaint that Auto-Owners had sold a total loss vehicle to a

consumer without first obtaining a certificate of salvage title.2  The vehicle, a 1991 GMC Safari van, was originally owned by Bruce Getts.  Getts was insured by Auto-Owners.  After

Getts damaged the vehicle he entered a settlement with Auto-Owners which took possession

of the vehicle declaring it a total loss.  On March 6, 1992 Auto-Owners sold the van to Allan

Abramow.  Thereafter Abramow sued Getts for issuing a faulty odometer disclosure

statement on  the van.  Apparently, as a part of that litigation Getts ordered a title history on

the vehicle and discovered that Auto-Owners had failed to apply for a salvage title; that

Auto-Owners did not appear in the title history of the vehicle; and that the title history

indicated that Getts had sold the vehicle to Abramow.  In February, 1995 Getts filed a written

complaint with the Attorney General's office.

	On April 18, 1995, the State issued a Civil Investigative Demand (hereafter referred

to as the Demand or a C.I.D.) addressed to Auto-Owners consisting of a request for the

production of documents and a set of eleven interrogatories.  The interrogatories dealt with

the identification of each total loss motor vehicle Auto-Owners had acquired since January

1, 1992.  The request for documents included copies of all documentation pertaining to the loss and acquisition of the vehicles referred to in the interrogatories including loss reports,

engineering reports, purchase orders, and odometer disclosure statements.  The Demand

indicated that it was issued pursuant to Ind. Code  § 4-6-3-3 to determine whether Auto-

Owners had violated Ind. Code § 24-5-0.5-1 et seq... (Deceptive Consumer Sales  Act) or Ind. Code § 9-22-3-1 et seq... (Salvage Motor Vehicles Act).  In response Auto-Owners objected to ten of the eleven interrogatories on the grounds that the information sought was over broad

and placed an undue burden and expense on Auto-Owners and that the information sought

was not calculated to lead to the discovery of admissible evidence.  Auto-Owners did

respond to one interrogatory stating that it had sold one vehicle to Allan Abramow since

January 1, 1992, and that was on March 6, 1992 when he purchased a 1991 GMC Safari van

previously owned by Bruce Getts.  With respect to the request for production of documents

Auto-Owners gave the same response that it had given to the interrogatories.  Auto-Owners

did, however, produce all documents pertaining to the sale of the Safari van.  Auto-Owners

also provided the State with a computer printout of 6,790 total loss vehicles it had acquired

since January 1, 1992.  However there was no identifying information on the printout such

as vehicle identification numbers.  Thereafter on April 14, 1996 the State filed a petition with

the trial court to enforce the C.I.D., and Auto-Owners countered with a motion for protective

order.  After conducting a hearing the trial court issued an order denying Auto-Owners'

motion and granting the State's petition.  This interlocutory appeal followed.

	Auto-Owners first contends the trial court abused its discretion by enforcing the C.I.D.

because there is no evidence of a violation of law within the applicable statute of limitations. More specifically Auto-Owners points out that the State has a two- year limitation period

within which to bring an action under the Deceptive Consumer Sales Act.3  The deceptive act in this case, according to Auto-Owners, occurred on March 6, 1992, and thus the outside

date for bringing an action was March 6, 1994.  Therefore, the argument continues, because

the State no longer has a remedy for any alleged violation of the Act, the trial court abused

its discretion by enforcing the C.I.D.  In essence Auto-Owners contends that the State should

not be able to investigate a matter where it can not bring sanctions even if a violation is found.

	We first observe this issue is waived.  At the trial court level Auto-Owners objected

to the enforcement of the C.I.D. on grounds that the interrogatories as well as the request for

production of documents were over broad, placed an undue burden and expense on Auto-

Owners, and the information sought was not calculated to lead to discovery of admissible

evidence.  Auto-Owners did not object to the C.I.D. on statute of limitation grounds.  A party

who does not raise an issue or argument at the trial court level may not raise that issue or

argument for the first time on appeal.  Ansert v. Indiana Farmers Mutual Insurance Co., 659 N.E.2d 614 (Ind. Ct. App. 1995), trans. dismissed.  Waiver notwithstanding Auto-Owners still cannot prevail.

	First, not only is the State investigating potential violations of the Deceptive

Consumer Sales

 Act, but it is also investigating potential violations of the Salvage Motor

Vehicles Act.  The two year limitation period applicable to violations of the Deceptive Consumer Sales Act is not necessarily applicable to violations of the Salvage Motor Vehicles

Act.4  Second, and perhaps more importantly, Auto Owners' argument is based on a faulty premise, namely:   that the only purpose or the primary purpose of conducting an

investigation is to file legal action.  That is not necessarily the case.  Should the State

determine that a party "has engaged in, is engaging in, or is about to engage in [a] deceptive

act" the Attorney General may "accept an assurance of voluntary compliance" from the

offending party with respect to any deceptive practice.  Ind. Code § 24-5-0.5-7.  No "legal

action" is necessary except that the voluntary compliance must be filed with and  subject to

the approval of the trial court.  Id..  Third, nothing in the wording of Ind. Code § 4-6-3-3 limits the State's authority to issue a C.I.D.  based upon the statute of limitations for the act

triggering an  investigation.  Among other things I.C. 4-6-3-3 provides that the Attorney

General may conduct an investigation to determine if a person "is or has been"  engaged in

a violation of any statute enforced by the Attorney General.  Here, the Attorney General was

seeking at least to determine if Auto-Owners has been violating the Deceptive Consumer

Sales Act and the Salvage Motor Vehicles Act.  That the act triggering the investigation may

fall outside the limitation period does not prohibit the State from conducting an investigation

in the first instance. 

	In a related argument, Auto-Owners contends  that  I.C. 4-6-3-3 also provides that the

Attorney General must first have "reasonable cause" to believe that there has been a statutory

violation.  The argument continues that because the State received only a single complaint

concerning a statutory violation and has no evidence of any violation occurring within the

limitation period, the trial court erred in enforcing the C.I.D. We reject the limitations

argument for reasons previously discussed.  As for the "reasonable cause" contention we

disagree with Auto-Owners' reading of I.C. 4-6-3-3.  In pertinent part the statute dictates:

"If the attorney general has reasonable cause to believe that a person may be

in possession, custody, or control of documentary material, or may have

knowledge of a fact that is relevant to an investigation conducted to determine

if a person is or has been engaged in a violation of [various statutory

provisions] or any other statute enforced by the attorney general . . . the

attorney general may issue in writing . . . an investigative demand . . . ." 

Id..  The plain wording of the statute shows that the "reasonable cause" requirement is not addressed to the commission of a violation of law.  Rather it is addressed to whether a person

may have certain information relevant to an investigation.  In this case, after Getts filed his

consumer complaint the State contacted Auto-Owners and confirmed that it had not applied

for a certificate of salvage title as required by the Salvage Motor Vehicles Act.  Once the

State decided to conduct an investigation to determine whether Auto-Owners may have

violated the Act, it was certainly reasonable and logical to believe that Auto-Owners

possessed information relevant to the investigation. 

	One of the tenets of statutory construction provides that statutes are to be construed

so as not to produce an absurdity.  Family and Social Services Admin. v. Calvert, 672 N.E.2d 488, 491-92 (Ind. Ct. App. 1996), trans. denied.  Interpreting I.C. § 4-6-3-3 as requiring reasonable cause to believe that a statutory violation occurred before an investigation wais even

initiated would produce an absurdity.  The very purpose of an investigation under the statute

is to determine if in fact a violation has occurred.  If the State had reasonable cause to believe

that a violation already existed, there would be no need for investigation in the first place. 

	Next,  Auto-Owners contends the trial court abused its discretion by enforcing

the C.I.D. because the State's request for production of documents is unreasonable.  Auto-

Owners directs our attention to Ind. Code § 4-6-3-5 which provides in relevant part "an

investigative demand may not:  (1) contain a requirement that would be unreasonable if

contained in a subpoena or subpoena duces tecum issued by a Court in a grand jury

investigation. . . ."  The standard oOfor reasonableness for purposes of a grand jury subpoena

duces tecum requires that the subpoena be sufficiently limited in scope, relevant in purpose,

and specific in directive so that compliance will not be unreasonably burdensome.  State ex rel. Pollard v. Criminal Court of Marion County, 263 Ind. 236, 329 N.E.2d 586 (Ind. 1975).  In this case the State sought documents extending over a three- year period.  Auto-Owners’

unreasonableness claim is based solely on its statute of limitations argument.  "How can the

State of Indiana have a right to obtain documents extending over a three and one- half [year]

period, when it only has a two- year statute of limitations under which to bring an action for

a violation under I.C. 24-5-0.5-5(b)?"  Brief of Appellant atp. 19-20.  We have already

addressed this issue and decline to explore it further. 

	Judgment affirmed.

SHARPNACK, C.J., and DARDEN, J., concur.