ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Thomas E. Wheeler Gregory F. Zoeller

Sarah Steele Riordan Attorney General of Indiana

Maggie L. Smith

Frost Brown Todd LLC Thomas M. Fisher

Indianapolis, Indiana Solicitor General

David L. Steiner

Deputy Attorney General

Heather Hagan McVeigh

Deputy Attorney General

Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE

INDIANAPOLIS BAR ASSOCIATION

APPELLATE PRACTICE SECTION

Stephen J. Peters

Plunkett Cooney, P.C.

Indianapolis, Indiana

Josh S. Tatum

Plews Shadley Racher & Braun LLP

Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court 

_________________________________

No. 49S04-1311-PL-732

FIRST AMERICAN TITLE INSURANCE

COMPANY,

Appellant and Cross-Appellee 

(Petitioner below),

v.

STEPHEN W. ROBERTSON, INSURANCE

COMMISSIONER OF THE STATE OF INDIANA,

IN HIS OFFICIAL CAPACITY, ON BEHALF OF THE

INDIANA DEPARTMENT OF INSURANCE,

Appellee and Cross-Appellant

(Respondent below).

_________________________________
2

Appeal from the Marion Superior Court No. 7, No. 49D07-1105-PL-019374

The Honorable Michael D. Keele, Judge

_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-1206-PL-326

_________________________________

November 13, 2014

Rucker, Justice.

In another opinion decided today we held that a petitioner seeking judicial review of an 

agency decision must file the agency record as defined by the Administrative Orders and 

Procedures Act and that the failure to do so results in dismissal of the petition. See Teaching 

Our Posterity Success, Inc., v. Ind. Dept. of Educ., ___ N.E.3d ___, No. 49S05-1411-PL-0700

(Ind. Nov. 13, 2014). We apply that holding here. 

Facts and Procedural History

First American Title Insurance Company is an insurer licensed to do business in the State 

of Indiana. As such it is subject to the administrative and regulatory authority of the Indiana 

Department of Insurance through its Commissioner. Under provisions of the Insurance 

Examination Act—Indiana Code sections 27-1-3.1-1 to 27-1-3.1-18—the Commissioner is 

authorized to “conduct an examination of every insurer licensed in Indiana . . . once every five 

(5) years.” Ind. Code § 27-1-3.1-8(a)(2). In consequence on March 31, 2009 the Department 

issued First American a Market Conduct Examination warrant1to review its practices relating to 

premium charges to customers, collections of premiums from its appointed agents, consumer 

disclosures, and collection and remittance of certain fees. App. at 18. The examination covered 

the period between January 1, 2005 and December 31, 2008. For such purposes the 

Commissioner retained the services of a third party examiner who, after conducting its 

 

1

“A market conduct examination is a statutorily provided tool by which the insurance commissioner can 

review a particular aspect of the interaction between an insurance carrier and the general public. A target 

examination is limited to a specific issue which the market behavior of the company has precipitated, and 

is usually conducted on an immediate basis and sometimes with no notice to the company.” State Farm 

Mut. Auto Ins. Co., v. Mortell, 667 N.E.2d 192, 194 (Ind. Ct. App. 1996).
3

examination, submitted a report to the Department on September 30, 2010. In turn the 

Commissioner forwarded the report to First American. Thereafter, on December 10, 2010, First 

American submitted a rebuttal to the report’s findings. The Commissioner was then required to 

take certain action within thirty days, namely: “enter an order” (1) adopting the report with or 

without modification; (2) rejecting the report and instructing the examiners to obtain more 

information and refile the report; or (3) calling for an investigatory hearing to obtain more 

documentation, data, information, and testimony. I.C. § 27-1-3.1-11(a). The Commissioner did 

not enter an order within thirty days. Instead the Commissioner requested that First American 

extend the deadline to permit the parties an opportunity to resolve the issues raised in the report. 

First American agreed to this extension. However the parties were unable to reach a resolution 

during this period, so the Commissioner requested and First American agreed to further extend 

the deadline until February 4, 2011. More than six weeks after that deadline passed, the 

Commissioner requested that First American agree to another extension of time through April 

15, 2011. This time First American refused to agree. On April 15, 2011, the Commissioner 

issued an order ostensibly pursuant to Indiana Code section 27-1-3.1-11(a)(3) calling for a 

hearing and appointing an administrative law judge. The hearing was set for July 12, 2011.

Before the date of the hearing, First American filed a petition in the Marion Superior 

Court seeking judicial review of the Commissioner’s order, contending the order was void

because it was issued beyond the thirty-day time limit set forth in the Insurance Examination 

Act. In support of its petition First American attached a copy of the order and hearing date along 

with a letter from the Department addressed to First American’s legal counsel, and a letter from 

First American’s legal counsel addressed to the Department. The Commissioner countered with 

a motion to dismiss the petition on grounds that First American failed to submit the agency 

record as required by the Administrative Orders and Procedures Act (“AOPA”). After a hearing 

the trial court denied the Commissioner’s motion to dismiss; and it denied First American’s 

petition for judicial review on grounds that First American was required, but failed, to show that 

it was prejudiced by the untimely order.2

 

2 Under AOPA a person is prejudiced by an agency action if it falls within five enumerated categories. 

See I.C. § 4-21.5-5-14(d). Here the trial court determined that in addition to the categories dictated by 

statute First American was also required to make an additional showing of prejudice. See Appellant’s 

App. at 11.
4

Both parties appealed. First American complained the trial court erred in not declaring 

the Commissioner’s hearing order void in that Commissioner failed to comply with the statutory 

deadline, and the trial court erred in requiring First American to demonstrate a separate showing 

of prejudice. On cross-appeal the Commissioner for the first time alleged that First American’s 

petition for judicial review should have been dismissed because First American failed to exhaust

its administrative remedies thereby depriving the trial court of jurisdiction. The Commission 

also argued the trial court erred in failing to dismiss First American’s petition for judicial review 

because First American did not submit an agency record. 

The Court of Appeals affirmed the trial court’s judgment in part, reversed it in part, and 

remanded the case for further proceedings. In so doing the court held: (1) the Commissioner’s 

hearing order was untimely and therefore void; (2) a petitioner seeking judicial review of an 

agency decision need not demonstrate a separate showing of prejudice; (3) the exhaustion of 

administrative remedies under AOPA is a procedural error and does not implicate the trial 

court’s subject matter jurisdiction, and the Commissioner waived this issue by not raising it 

timely; and (4) although First American failed to submit a formal agency record, the documents 

attached to its petition for judicial review were sufficient to allow the trial court to decide the 

issue raised. See First Am. Title Ins. Co. v. Robertson, 990 N.E.2d 9 (Ind. Ct. App. 2013). The 

Commissioner sought transfer contending (1) the failure to exhaust administrative remedies 

deprives a trial court of subject matter jurisdiction, and (2) AOPA mandates the timely filing of a 

certified agency record prior to judicial review of an administrative order. Having previously 

granted transfer we now address these claims and reverse the judgment of trial court. Additional 

facts are set forth below. 

Discussion

I. Exhaustion of Administrative Remedies

We summarily affirm that portion of the Court of Appeals opinion holding that the 

exhaustion of administrative remedies under AOPA is a procedural error and does not implicate 
5

the trial court’s subject matter jurisdiction.3 And because the Commissioner does not otherwise 

challenge the point on transfer, we also agree with our colleagues that by raising this procedural 

issue for the first time on appeal, the Commissioner’s exhaustion claim is waived. We hasten to 

add however that a finding of waiver may not be appropriate in every instance. The facts of a 

particular case may dictate otherwise. As we have previously observed certain benefits accrue in 

requiring the exhaustion of administrative remedies.

Premature litigation may be avoided, an adequate record for 

judicial review may be compiled, and agencies retain the 

opportunity and autonomy to correct their own errors. Even if the 

ground of complaint is the unconstitutionality of the statute, which 

may be beyond the agency’s power to resolve, exhaustion may still 

be required because [“]administrative action may resolve the case 

on other grounds without confronting broader legal issues.[“] 

[Turner v. City of Evansville,] 740 N.E.2d 860, 862 (Ind. 2001) 

(quoting State Bd. of Tax Comm’rs v. Montgomery, 730 N.E.2d 

680, 684 (Ind. 2000)). Justice Sullivan noted several additional 

benefits of this approach: [“]The exhaustion requirement serves to 

avoid collateral, dilatory action of the likes of the instant action 

and to ensure the efficient, uninterrupted progression of 

administrative proceedings and the effective application of judicial 

review. It provides an agency with the opportunity ‘to correct its 

own errors, to afford the parties and the courts the benefit of [the 

agency’s] experience and expertise, and to compile a [factual] 

record which is adequate for review.’[”] Austin Lakes Joint 

Venture v. Avon Utils., Inc., 648 N.E.2d 641, 644 (Ind. 1995) 

(quoting Uniroyal, Inc. v. Marshall, 579 F.2d 1060, 1064 (7th Cir. 

1978)) (alteration in original). 

Advantage Home Health Care, Inc. v. Ind. State Dep’t of Health, 829 N.E.2d 499, 503 (Ind. 

2005) (some alterations in original). Thus, even where a claim of failure to exhaust 

administrative remedies has been raised untimely that fact alone does not necessarily dictate the 

court should declare the claim waived. But we repeat that in this case the Commissioner does 

not argue the point. And we decline to speculate what if any adverse impact the alleged failure 

to exhaust may have had here. 

 

3 We also summarily affirm that portion of the Court of Appeals opinion declaring the Commissioner’s 

hearing order untimely and void, as well as that portion of the opinion declaring that a petitioner seeking 

judicial review of an agency decision need not demonstrate a separate showing of prejudice. 
6

II. Submission of Agency Record

The AOPA governs administrative proceedings and judicial review of decisions of DOE 

and certain other State agencies. See I.C. §§ 4-21.5-2-0.1 to 6. For the agencies to which it 

applies, AOPA includes extensive procedural requirements for adjudications under the Act. See, 

e.g., I.C. § 4-21.5-3-1 (governing notice of agency action); I.C. § 4-21.5-3-13 (governing 

qualifications of adjudicators); I.C. § 4-21.5-3-18 (governing notice and conduct of prehearing 

conferences); I.C. § 4-21.5-3-22 (governing conduct of discovery); I.C. § 4-21.5-3-25 (governing 

conduct of hearings); I.C. § 4-21.5-3-26 (governing presentation of evidence); I.C. § 4-21.5-3-27 

(governing contents of orders); I.C. § 4-21.5-3-33 (governing maintenance of records of 

proceedings). 

In addition to these procedural requirements for agency actions, AOPA includes its own 

provisions for judicial review of agency actions. See I.C. §§ 4-21.5-5-1 to 16. A person

aggrieved by an agency action may file a petition for review in the appropriate trial court, and 

can show the agency action was invalid by demonstrating the party was prejudiced by an agency 

action that was:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law;

(2) contrary to constitutional right, power, privilege, or immunity;

(3) in excess of statutory jurisdiction, authority, or limitations, or 

short of statutory right;

(4) without observance of procedure required by law; or

(5) unsupported by substantial evidence.

I.C. § 4-21.5-5-14. This section also requires that the reviewing court “shall make findings of 

fact on each material issue on which the court’s decision is based.” Id. The court’s review of 

disputed issues of fact “must be confined to the agency record for the agency action . . . . The 

court may not try the cause de novo or substitute its judgment for that of the agency.” I.C. § 4-

21.5-5-11. 

Particularly relevant in the case before us are certain AOPA provisions regarding the 

record of proceedings in the agency and the role of that record in facilitating judicial review. 

AOPA provides that each “agency shall maintain an official record of each proceeding under this 
7

chapter.” I.C. § 4-21.5-3-33. “Upon a written request by the petitioner, the agency taking the 

action being reviewed shall prepare the agency record for the petitioner.” I.C. § 4-21.5-5-13(c). 

Within thirty days after an aggrieved party files its petition for judicial review “or within further 

time allowed by the court or by other law, the petitioner shall transmit to the court the original 

or a certified copy of the agency record for judicial review of the agency action . . . .” I.C. § 4-

21.5-5-13(a) (emphasis added). A petitioner’s “[f]ailure to file the record within the time 

permitted by this subsection, including any extension period ordered by the court, is cause for 

dismissal of the petition for review by the court, on its own motion, or on petition of any party of 

record to the proceeding.” I.C. § 4-21.5-5-13(b) (emphasis added). 

AOPA more specifically provides that “the original or a certified copy of the agency 

record for judicial review . . . consist[s of:]” 

(1) any agency documents expressing the agency action;

(2) other documents identified by the agency as having 

been considered by it before its action and used as a basis 

for its action; and

(3) any other material described in this article as the 

agency record for the type of agency action at issue, subject 

to this section.

I.C. § 4-21.5-5-13(a) (emphasis added). Elsewhere in Article 21.5 is the following description:

The agency record of the proceeding consists only of the 

following:

(1) Notices of all proceedings.

(2) Any prehearing order.

(3) Any motions, pleadings, briefs, petitions, requests, and 

intermediate rulings.

(4) Evidence received or considered.

(5) A statement of matters officially noticed.

(6) Proffers of proof and objections and rulings on them.

(7) Proposed findings, requested orders, and exceptions.

(8) The record prepared for the administrative law judge or 

for the ultimate authority or its designee under sections 28 

through 31 of this chapter, at a hearing, and any transcript 

of the record considered before final disposition of the 

proceeding.

(9) Any final order, nonfinal order, or order on rehearing.

(10) Staff memoranda or data submitted to the 

administrative law judge or a person presiding in a 

proceeding under sections 28 through 31 of this chapter.
8

(11) Matters placed on the record after an ex parte 

communication.

I.C. § 4-21.5-3-33(b). And with certain exceptions not relevant here, “the agency record 

described by subsection (b) constitutes the exclusive basis for agency action in proceedings 

under this chapter and for judicial review of a proceeding under this chapter.” I.C. § 4-21.5-3-

33(c). 

First American acknowledges that it did not transmit the agency record to the trial court 

as anticipated by AOPA. It insists however that the documents presented to the trial court were 

sufficient to decide whether the Commissioner’s hearing order was void. According to First 

American, “the only documents relevant to judicial review were the April 15, 2012 Order 

appointing an ALJ to conduct an investigative hearing and the April 19, 2012 Order setting the 

investigative hearing for July 12, 2012.” Reply Br. of Appellant at 24-25. First American 

correctly notes these documents were attached to its petition for judicial review. In support of its 

contention First American relies heavily on Izaak Walton League of America, Inc. v. Dekalb 

County Surveryor’s Office which declared, among other things: “We think the purposes of the 

statutes governing what constitutes an adequate agency record . . . are clear. The record must 

include all that is necessary . . . to accurately assess the challenged agency action.” 850 N.E.2d 

957 at 965 (Ind. Ct. App. 2006). 

But in an opinion we decide today we declare a “bright line” rule effectively abrogating 

Izaak Walton and similar cases. “[W]e hold a petitioner for review cannot receive consideration 

of its petition where the statutorily-defined agency record has not been filed. In our view this 

bright-line approach best serves the goals of accuracy, efficiency, and judicial economy.” 

Teaching Our Posterity Success, Inc., ___ N.E.3d at ___, No. 49S05-1411-PL-700, slip op. at 9-

10 (footnote omitted). In this case First American did not file the agency record with the trial 

court. Therefore its petition for judicial review cannot be considered. The trial court thus erred 

in failing to grant the Commissioner’s motion to dismiss the petition.
9

Conclusion 

We reverse the judgment of the trial court.

Rush, C.J., and Dickson, David and Massa, JJ., concur.