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Coomes v. Maryland Insurance Administration

Court of Special Appeals of Maryland

March 30, 2017

ELIZABETH HARING COOMES
v.
MARYLAND INSURANCE ADMINISTRATION

          Berger, Reed, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Berger, J.

         This appeal arises from several decisions of the Maryland Insurance Commissioner ("Commissioner"), including the Commissioner's decision to: (1) grant summary disposition in favor of the Maryland Insurance Administration ("MIA") against Elizabeth Coomes ("Coomes"); (2) affirm the MIA's Amended Order revoking Coomes's producer's license for violations of various provisions of the Insurance Article; and (3) assess an administrative penalty of $1, 250.00. The relevant facts in this case surround Coomes's "voluntary surrender" of her Virginia producer's license and whether this "surrender" constitutes an "adverse action" requiring Coomes to report the surrender to the MIA.

         On appeal, Coomes presents five issues for our review, [1] which we rephrase as follows:

1. Whether the Commissioner erred as a matter of law by finding that Coomes's voluntary surrender of her Virginia insurance producer's license was an "adverse administrative action" requiring her to report it to the Maryland Insurance Administration.
2. Whether there is substantial evidence in the record to support the Commissioner's conclusion as a matter of law that Coomes violated Md. Code (2002, 2011 Repl. Vol.), § 10-126(a)(1), (6), (12), (13), and (f) of the Insurance Article ("I.A.").
3.Whether Double Jeopardy applies to shield Coomes from having her Maryland producer's license revoked after previously voluntarily surrendering her Virginia producer's license based on the same underlying set of facts.
4. Whether the circuit court abused its discretion under Md. Code (1984, 2014 Repl. Vol., 2016 Supp.), § 10-222(f)(2) of the State Government Article ("S.G.") when it denied Coomes's motion to offer additional evidence on the basis that the evidence was not material.

         BACKGROUND

         In 2004, Elizabeth Coomes became a licensed insurance producer in the Commonwealth of Virginia. That same year, the State of Maryland issued a producer's license to Coomes as a nonresident producer. In September of 2011, the Virginia Department of Insurance ("VDI") began investigating Coomes for alleged acts of misappropriating two checks sent to her in error by Anthem Blue Cross and Blue Shield of Virginia ("Anthem").

         Prior to September 2011, Anthem mistakenly sent two checks totaling approximately $20, 000 to Coomes's agency's home office in Leesburg, Virginia. Both checks were made out to "EBCA" (Employee Benefit Corporation of America). Coomes, or a member of her staff, deposited the checks into her agency's operating account. EBCA and Anthem notified Coomes that the checks were sent to her agency in error on or around August 18, 2011, and they requested the return of the money since the checks were deposited.

         Coomes testified at the hearing before the Commissioner that the agency routinely received commission checks from Anthem and other insurers, and that by the time Anthem demanded repayment for the checks sent in error, she had already spent the money on various business expenses. She further testified that after she informed Anthem that she was not able to repay the money in one lump sum, Anthem refused to take the money out of her future commission payments. Thereafter, she and Anthem came to an agreement for Coomes to repay Anthem immediately with approximately $6, 000 to $10, 000 cash on hand, and the remainder with a small personal loan. A few days later, however, Anthem filed a complaint with VDI and Coomes did not repay the money immediately.

         The VDI began investigating Coomes's conduct in September of 2011 based on allegations that Coomes had misappropriated money through acts of fraud, deception, or dishonesty. The investigation by the VDI addressed Anthem's accusations that Coomes had committed fraud, conversion and had forged endorsements on the checks. Thereafter, Coomes repaid all but $2, 000 of the money owed with a series of three checks sent in February and March of 2012. Coomes, however, refused to repay the remaining $2, 000, averring that Anthem owed her the money for unrelated advertising co-op costs under her contract with Anthem.

         The VDI's investigation ultimately was resolved without a hearing when Coomes agreed to a "voluntary surrender" of her Virginia producer's license. Coomes executed the voluntary surrender agreement with the VDI on or around December 10, 2012, to be effective March 11, 2013.[2] In the agreement, Coomes acknowledged that she voluntarily surrendered her Virginia producer's license "in lieu of a hearing before the State Corporation Commission, which [Coomes] understand[s] may result in revocation or suspension of [Coomes's] authority as an insurance agent or consultant, as well as possible monetary penalty." (Emphasis added). Coomes voluntarily surrendered "all authority . . . to conduct the business of insurance or insurance consulting in the Commonwealth of Virginia." The agreement further provided that "[i]n consideration of the Commission's acceptance of [the] voluntary surrender of [her] license authority in lieu of a hearing before the Commission . . ." Coomes agreed not to apply to "transact the business of insurance in Virginia for a period of one year" from the date of the agreement, and only after she had resolved all of her "financial obligations resulting from [her] insurance activities." Further, the language of the agreement refers to the agreement as an "action . . . taken of [Coomes's] own volition." (Emphasis added).

         Finally, Coomes acknowledged that she

under[stood] that notification of this matter, which may include personal information about [Coomes] including, but not limited to [Coomes's] name, residence address, social security number . . ., date of birth, license and appointment status, and investigation or disciplinary action summary data, may be reported to the National Association of Insurance Commissioners and to other state insurance regulatory authorities or other interested parties.

         Thereafter, in March of 2013, Coomes requested through a letter to the MIA that her residential address be updated and that her Maryland license be changed from nonresident producer to resident producer. In the letter, Coomes stated "I have notified the Virginia Insurance Bureau of my address change and have requested a voluntary surrender of my Virginia resident license." Coomes did not include in the letter any indication of an investigation by the VDI into her mishandling of money, nor did Coomes disclose that she had agreed to voluntarily surrender her license in lieu of facing a hearing to contest the allegations arising from Anthem's complaint. Coomes testified that she did not understand the voluntary surrender to be an "adverse violation" and did not know that there was a requirement that she inform the MIA of the VDI's actions.

         Procedural History

         Pursuant to a revised order issued June 30, 2014, [3] the Maryland Insurance Commissioner ("the Commissioner") issued an order finding the voluntary surrender agreement constituted an "adverse administrative action" that was taken against Coomes. The Commissioner found Coomes to be in violation of I.A. §§ 10-126(a)(1), (6), (12), (13), and (f), and therefore, subject to discipline. The Commissioner revoked Coomes's license to act as an insurance producer in the State of Maryland and ordered her to pay an administrative penalty of $1, 250.00 within 30 days. The pertinent provisions of I.A. § 10-126 are as follows:

(a) The Commissioner may deny a license to an applicant under §§ 2-210 through 2-214 of this article, or suspend, revoke, or refuse to renew or reinstate a license after notice and opportunity for hearing under §§ 2-210 through 2-214 of this article if the applicant or holder of the license:
(1) has willfully violated this article or another law of the State that relates to insurance;
. . .
(6) has committed fraudulent or dishonest practices in the insurance business;
. . .
(12) has failed or refused to pay over on demand money that belongs to an insurer, insurance producer, or other person entitled to the money;
. . .
(13) has otherwise shown a lack of trustworthiness or competence to act as an insurance producer;
. . .
(f)(1) Within 30 days after the final disposition of the matter, an insurance producer shall report to the Commissioner any adverse administrative action taken against the insurance producer:
(i) in another jurisdiction; or
(ii) by another governmental unit in this State.
(2) The report shall include a copy of the order, consent order, and any other relevant legal documents.

I.A. § 10-126(a)(1), (6), (12), (13) and (f) (emphasis added).

         Coomes requested a hearing on the Commissioner's order, pursuant to I.A. § 2-210 and COMAR 31.02.01.03. Coomes appeared before a Commissioner on November 5, 2014 on the MIA's Motion for Summary Disposition, during which Coomes testified but did not call any other witnesses. On December 9, 2014, the Commissioner issued a revised final order granting the MIA's Motion for Summary Disposition, and finding that Coomes violated I.A. §§ 10-126(a)(1), (6), (12), (13), and (f). The Commissioner ordered that Coomes's license be revoked and that she pay an administrative penalty of $1, 250.00 within forty-five days of the order.

         On January 7, 2015, Coomes filed a petition for judicial review in the Circuit Court for Baltimore City. A hearing was held before the circuit court on November 9, 2015, and on November 30, 2015, the circuit court affirmed the decision of the MIA.

         For the reasons explained below, we affirm the Circuit Court for Baltimore City.

         DISCUSSION

         I. ...


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