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NATIONWIDE MUTUAL INSURANCE COMPANY v. MICHAEL L. BROWNE (03/10/82)

decided: March 10, 1982.

NATIONWIDE MUTUAL INSURANCE COMPANY, ET AL., PETITIONERS
v.
MICHAEL L. BROWNE, INSURANCE COMMISSIONER AND THE INSURANCE DEPARTMENT OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY ET AL., PETITIONERS V. MICHAEL L. BROWNE, INSURANCE COMMISSIONER AND THE INSURANCE DEPARTMENT OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Original jurisdiction in the case of Nationwide Mutual Insurance Company, Nationwide General Insurance Company and Nationwide Mutual Fire Insurance Company v. Michael L. Browne, Insurance Commissioner and The Insurance Department of the Commonwealth of Pennsylvania, and in the case of State Farm Mutual Automobile Insurance Company and its affiliate, State Farm Fire and Casualty Company, and Allstate Insurance Company v. Michael L. Browne, Insurance Commissioner and The Insurance Department of the Commonwealth of Pennsylvania.

COUNSEL

Jeffrey B. Clay, with him David E. Lehman, and Eric L. Brossman, McNees, Wallace & Nurick, for petitioners, Nationwide Mutual Insurance Company et al.

James J. McCabe, with him Jane D. Elliott and Susan L. Claypoole, Duane, Morris & Heckscher, for petitioners, State Farm Mutual Automobile Insurance Company et al.

Hannah Leavitt, Assistant Counsel, with her Allen C. Warshaw, Deputy Attorney General and Anthony A. Geyelin, Chief Counsel, for respondents.

President Judge Crumlish, Jr., and Judges Mencer, Rogers, Williams, Jr. and Craig. Opinion by Judge Craig. Judge Palladino did not participate in the decision in this case.

Author: Craig

[ 65 Pa. Commw. Page 237]

These two actions, addressing our original jurisdiction with requests for declaratory and injunctive relief, relate to the order and adjudication of the Insurance Commissioner in the proceeding brought by Philip V. Mattes, the appeal from which we have concurrently decided in Hartford Accident and Indemnity Co. v. Insurance Commission, 65 Pa. Commonwealth Ct. 236,

[ 65 Pa. Commw. Page 238442]

A.2d 382 (1982). In view of the Commissioner's invalidation of an automobile insurance rate filing of Hartford because it involved a sex-based classification, these petitions of Nationwide Mutual Insurance Company, State Farm Mutual Automobile Insurance Company, Allstate Insurance Company and affiliated companies request that we order the Commissioner to withdraw his order in the Hartford case insofar as it applies to insurers other than Hartford, and that we take evidence in this court and thereafter declare that, where there is sound actuarial justification, automobile insurers shall be entitled to use sex as a rating factor.

On behalf of the Commissioner, the Commonwealth has interposed preliminary objections raising various questions, including lack of jurisdiction in this court to entertain the actions. Our conclusion is to sustain the jurisdictional preliminary objections because petitioners have their remedies before the Commissioner under the Casualty and Surety Rate Regulatory Act (Rate Act), Act of June 11, 1947, P.L. 538, 40 P.S. ยงยง 1181-1199.

The petitions ignore the point that the straightforward terms of the Commissioner's order in the Hartford case are confined to invalidating only "the automobile insurance rating plan of Hartford Accident and Indemnity Company, insofar as it contains sexual classifications. . . ." Their concern actually stems from discussion passages in the Commissioner's adjudication, where the Commissioner voices a common-sense recognition of the fact that his action in the Hartford case contains an implication that he will pursue the same principles in subsequent rate filing proceedings; for that reason he deferred the effectiveness of his order as to Hartford until April 17, 1981 and has since extended that effective date to April 17, 1982.

[ 65 Pa. Commw. Page 239]

Petitioners further contend that the Commissioner's action in Hartford amounts to the promulgation of a purported regulation, without pursuing proper regulation-making proceedings. Obviously, the above-noted order, the terms of which apply to ...


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