Insurance Inst of Mich v. Comm Office of Financial & Ins Serv

Order Michigan Supreme Court Lansing, Michigan

May 7, 2009 Marilyn Kelly, Chief Justice

137400 Michael F. Cavanagh 137407 Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. INSURANCE INSTITUTE OF MICHIGAN, Stephen J. Markman HASTINGS MUTUAL INSURANCE Diane M. Hathaway, COMPANY, FARM BUREAU GENERAL Justices INSURANCE COMPANY, FRANKENMUTH CASUALTY INSURANCE, WALTER STAFFORD, JR., and MICHAEL FLOHR, Plaintiffs-Appellees, and MICHIGAN INSURANCE COALITION and CITIZENS INSURANCE COMPANY OF AMERICA, Intervening Plaintiffs-Appellees, v SC: 137400 COA: 262385 Barry CC: 05-000156-CZ COMMISSIONER, FINANCIAL & INSURANCE SERVICES, DEPARTMENT OF LABOR & ECONOMIC GROWTH, Defendant-Appellant.

_________________________________________/

INSURANCE INSTITUTE OF MICHIGAN, HASTINGS MUTUAL INSURANCE COMPANY, FARM BUREAU GENERAL INSURANCE COMPANY, FRANKENMUTH CASUALTY INSURANCE, WALTER STAFFORD, JR., and MICHAEL FLOHR, Plaintiffs-Appellants, and MICHIGAN INSURANCE COALITION and CITIZENS INSURANCE COMPANY OF AMERICA, Intervening Plaintiffs-Appellants,

v SC: 137407 COA: 262385 Barry CC: 05-000156-CZ COMMISSIONER, FINANCIAL & INSURANCE SERVICES, DEPARTMENT OF LABOR & ECONOMIC GROWTH, Defendant-Appellee.

_________________________________________/

On order of the Court, the applications for leave to appeal the August 21, 2008 judgment of the Court of Appeals are considered, and they are GRANTED. The parties shall include among the issues to be briefed: (1) whether, under § 64 of the Administrative Procedures Act, MCL 24.264, the plaintiffs were permitted to bring an original declaratory judgment action in the circuit court without having first requested a declaratory ruling from the defendant; (2) whether § 244(1) of the Insurance Code, MCL 500.244(1), provides the exclusive means of seeking judicial review of rules promulgated by the defendant; (3) whether judicial review of the challenged administrative rules was limited to the administrative record prepared during the public hearing process, see § 104(3) of the APA, MCL 24.304(3), and Michigan Assoc of Home Builders v Michigan Dep’t of Labor and Economic Growth, 481 Mich 496 (2008); and (4) whether the challenged administrative rules (a) violated the plaintiffs’ due process rights, (b) were valid and enforceable under the Insurance Code, (c) were arbitrary and capricious, or (d) exceeded defendant’s rulemaking authority.

The motion for expedited consideration is considered, and it is GRANTED. The Clerk of the Court is directed to place this case on the October 2009 session calendar for argument and submission. The Insurance and Indemnity Law Section of the State Bar of Michigan, the American Insurance Association, the Michigan Consumer Federation, and the National Consumer Law Center are invited to file briefs amicus curiae.

Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. May 7, 2009 _________________________________________ p0430 Clerk