Opinion

Med. Mut. Ins. Co. of Maine v. Maine Bureau of Ins.

Court
Superior Court of Maine
Filed
Dec 12, 2003
Status
Unpublished
On the bench
Roland A. Cole
Cited by
0 cases
Authority
More cited than 34.1%

The opinion

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STATE OF MAINE CUBE RD See #RIOR COURT

CUMBERLAND, ss. “SERS PCAN ACTION S/S

* DOCKET NO. CV03-453

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MEDICAL MUTUAL INSURANCE

COMPANY OF MAINE, PATRICK A.

DOWLING, M.D., WILLIAM L. MEDD, com pe uuees

M.D., TERRANCE J. SHEEHAN, M.D, Boe DL Go

JOHN P. DOYLE, MICHAEL L. MCCALL, LAS

and DOMENIC J. RESTUCCIA,

JAP 24 700d

Plaintiffs

V. DECISION AND ORDER

MAINE BUREAU OF INSURAN CE, and

ALLESSANDRO A. JUPPA in his capacity as

Superintendent of Insurance,

Defendants

The defendants move to dismiss Counts I and III of the plaintiffs’ Complaint

under Maine Rule of Civil Procedure 12 and move to alter or amend the scheduling

order issued by the court.

FACTS

In this case, a doctor who was a policyholder requested information from

Medical Mutual Insurance Company of Maine (Medical Mutual) regarding the salaries

of highly-compensated employees. This information is contained ina document called

the Supplemental Compensation Exhibit, which is a standard form filed by insurers

with their annual report to the Superintendent of Insurance (Superintendent). Medical

Mutual argued that this information should remain confidential. The Superintendent

allowed the doctor and Medical Mutual to submit arguments as to why this information

should or should not be divulged. The Superintendent then decided that the

information should be made available to the general public.

DISCUSSION

In this case, the defendants move to dismiss, under Rule 12, Count I (Appeal of

Freedom of Access Decision) and Count III (Declaratory Judgment Act) from Plaintiff’s

Complaint. Me. R. Civ. P. 12 (2003). The defendants argue that Count I should be

subsumed in Count II (80C Appeal). The defendants further argue that this court has

no jurisdiction to decide the declaratory judgment action, but only has jurisdiction to

decide the 80C review. The defendants also argue that the independent claim of the

plaintiffs should be dismissed for failure to follow the scheduling procedure prescribed

in Rule 80C(i). Finally, the defendants argue that the Scheduling Order, issued on

September 12, 2003, should be rescinded because it is inapplicable to a Rule 80C review.

The plaintiffs argue that there is an independent claim under 1 M.R.S.A. § 409; that the

plaintiffs have a legitimate claim under the Declaratory Judgment Act; and that the

court should not alter or amend the Scheduling Order.

Review of decisions by agencies are governed by Maine Rule of Civil Procedure

80C. This Rule states that review of agency decisions is subject to the Rules of Civil

Procedure as modified by Rule 80C. In this case, the Plaintiffs are petitioning for review

of a decision of the Maine Bureau of Insurance; namely, the decision to make the

Supplemental Compensation Exhibit available to the general public. In the federal

context, an analogous cause of action is known as a “reverse Freedom of Information

Act” challenge. See Chrysler Corp. v. Brown, 441 US. 281, 285 (1979).'. The federal

Freedom of Information Act (FOIA), like the Maine Freedom of Access (FAA) statute,

allows for an action to compel an agency to disclose information. 5 U.S.C. § 552(a)(4) (B)

(2003); 1 M.R.S.A. § 409(1) (2002). The statutes, however, do not have a cause of action

" See Shaw v. Jendzejec, 1998 ME 208, 14, 717 A.2d 367, 369 (stating that it is “routine practice”

for the Law Court to utilize how other jurisdictions interpret similar statutes in deciding cases).

to enjoin an agency from disclosing information. Id. This decision must be attacked

under the federal Administrative Procedures Act (APA) in the case of a reverse-FOIA

challenge, or under the Maine Administrative Procedures Act (MAPA) in the case of the

FAA. See Brown, 441 U'S. at 290-94, OSHA DATA/CIH Inc. v. United States Dep’t of

Labor, 220 F.3d 153, 160 (3d Cir. 2000); RSR Corp. v. Browner, 1997 U.S. App. LEXIS

9523, at *6-7 (2d Cir. 1997): Pacific Architects and Engineers, Inc. v. United States Dep’t

of State, 906 F.2d 1345, 1348 (9th Cir. 1990); Acumenics Research & Tech. v. United

States Dep’t of Justice, 843 F.2d 800, 804 (4th Cir. 1988).

Further, the Supreme Court has interpreted the APA to allow de novo review of

an adjudicatory action in very limited situations. See, Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971). Section 11007 of the MAPA provides the

manner and scope of review for a court. 5MRS.A. § 11007. Section 11007 does not’

include, nor has it been interpreted to include, trial de novo. Therefore, this court will

proceed on the 80C review and Count I of the complaint is dismissed?

With regard to the action under the Declaratory Judgment Act, when the

Superior Court reviews a complaint which collaterally attacks an agency decision, the

court must determine whether there is the possibility of irreparable harm. “Under the

Principles of res judicata, when an administrative determination becomes final, the

Superior Court should not, through a request for declaratory judgment, grant a

* Plaintiffs in this case argue that footnote 6 in Baker’s Table, Inc. v. Portland, 2000 ME 7, {11 n.

6, 743 A.2d 237, 241, is controlling in this case. That case, and those cases cited in footnote 6,

addresses cases where section 409(2) of the FAA is at issue, i.e., where government entities are

accused of promulgating “ordinances, orders, rules, resolutions, regulations, contracts,

appointments or other official action in an executive session.” 1 M.R.S.A. § 409(2) (emphasis

added). That section gives a right to “trial de novo” upon petition for review to the Superior

Court where decisions have been made in secret, thereby violating the purposes of the FAA.

Section 409(1) only allows this right for review of decisions to deny access to information. In

this case, the parties have argued that section 409(1) is the applicable section, which centers

around the disclosure of records. Those cases cited above relating to the federal FOIA are

therefore analogous and persuasive.

collateral review on the merits of the administrative determination unless direct judicial

review, as provided by statute, is inadequate to prevent irreparable j injury.” Me.

Central R.R. Co. v. Town of Dexter, 588 A.2d 289, 292 (Me. 1991). If there is no way to

prevent irreparable harm within the usual mode of review, the action under the

Declaratory Judgment Act should survive. Id. In this case, the court has ordered, as

agreed by the parties, that the Supplemental Compensation Exhibit shall remain

confidential pending the outcome of this review. Irreparable harm is avoided in this

tespect and the plaintiffs are afforded an Opportunity to review the decision of the

Bureau of Insurance. The court will not, without proper briefing and argument,

second-guess the decision of the agency. See Imagineering, Inc. v. Dept, of Prof’l & Fin.

Regulation, 593 A.2d 1050, 1053 (Me. 1991). Count III of the plaintiffs’ complaint should

be dismissed.

As this case is in essence an 80C review of final agency action, the Scheduling

Order should be modified to be consistent with the briefing schedule set forth in that

Rule. Therefore, the plaintiffs in this shall have 40 days from the date of this Decision

and Order to file their Rule 80C brief. The defendants will have 30 days after service of

the plaintiffs’ brief to tespond with their brief. The plaintiffs will then have 14 days

after the service of the defendants’ brief to file a reply brief?

WHEREFORE, this court GRANTS the defendants motion to dismiss as to

Counts I and III. The court further ORDERS that those portions inconsistent with

Maine Rule of Civil Procedure 80C be struck, and this case proceed as an 80C Review of

Final Agency Action consistent with this Decision and Order.

* As the court has resolved that this case will be resolved as an 80C review the court will not

consider the defendants’ arguments about Rule 80C(i).

Dated: December 1t 2003

Roland A. Cole

Justice, Superior Court

= COURTS

nd County

Ox 287

re 04112-0287

THOMAS STURTEVANT ESQ

83 EDISON DRIVE

AUGUSTA ME 04333

- COURTS

id County

x 287

e 04112-0287

WILLIAM HARWOOD ESQ

PO BOX 586

PORTLAND ME 04112

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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