Opinion

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: Jan 25, 2001
Status: Published
Cited by: 0 cases
Authority: More cited than 36.0%

The opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-00-00354-CV

Dow Chemical Company, Appellant

Carole Keeton Rylander, Comptroller of Public Accounts of the State of Texas; and

John Cornyn, Attorney General of the State of Texas, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. 99-05725, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING

Appellant Dow Chemical Company ("Dow") appeals from the district court's

summary judgment in favor of appellees, Carole Keeton Rylander, Comptroller of Public Accounts

of the State of Texas, and John Cornyn, Attorney General of the State of Texas, denying Dow a

refund of taxes previously paid. (1) Dow also appeals the district court's denial of its own motion

for summary judgment. We will reverse the district court's summary judgment and render

judgment granting Dow's motion for summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Dow is a Delaware corporation headquartered in Michigan and authorized to do

business in Texas. See Tex. Bus. Corp. Act Ann. art. 8.05 (West Supp. 2001). Dow owns real

and personal property in Texas. Although the property is located in Texas, Dow insures it

through out-of-state insurance companies. These insurance companies are not authorized to sell

insurance in Texas. Texas terms such insurance--covering Texas risks but purchased from out-of-state insurance companies--"independently procured insurance" and imposes a tax on it. See Tex.

Ins. Code Ann. §§ 101.252 , .053(b)(4) (West Supp. 2001). Dow is required to file reports with

and pay the tax to the Comptroller. See id . § 101.252(a).

The Comptroller audited Dow for the period January 1, 1991 through December

31, 1997. See Tex. Tax Code Ann. § 111.004 (West 1992). As a result of the audit, the

Comptroller assessed Dow $427,148.80 for independently procured insurance taxes, penalties, and

interest. See Tex. Ins. Code Ann. § 101.252 . Dow paid the assessment under protest and filed

this suit in district court seeking a refund of its payment. See Tex. Tax Code Ann. § 112.151

(West Supp. 2001); Tex. Gov't Code Ann. §§ 403.201 -.204 (West 1998). The parties submitted

competing motions for summary judgment. The district court granted summary judgment in favor

of the Comptroller and denied Dow's motion. By one issue, Dow appeals, asserting that the

district court erred in granting the Comptroller's motion and denying its motion for summary

judgment.

DISCUSSION

Dow Chemical's Failure to Provide Notice

The insurance code requires that an insurer or other person who claims an

exemption based on the United States Constitution must file notice of the claim with the

commissioner of insurance before commencing operations. See Act of May 27, 1985, 69th Leg.,

R.S., ch. 918, § 3, 1985 Tex. Gen. Laws 3088 , 3090 (Tex. Ins. Code Ann. art. 1.14-1, § 14,

since repealed and codified at Tex. Ins. Code Ann. § 101.004 (West Supp. 2001)). (2) Initially, the

Comptroller urges, but does not assert as error, that the notice provision applies to Dow because

of the "State's substantial interest in regulating insurance." The Comptroller "raise[s] this issue

only as a defensive matter" and argues that this Court "should consider remanding the case if it

finds this issue controlling." We do not.

The goal of statutory construction is to give effect to the intent of the legislature.

Sorokolit v. Rhodes , 889 S.W.2d 239, 241 (Tex. 1994). If language in a statute is unambiguous,

a court must seek the intent of the legislature as found in the plain and common meaning of the

words and terms used. Id .

Section 101.004(a) of the insurance code states that Texas's independently procured

insurance tax does "not apply to an insurer or other person to whom, under the constitution or

statutes of the United States or the constitution of this state, it may not apply." Tex. Ins. Code

Ann. § 101.004 (a) (West Supp. 2001). Section 101.004(b) continues, "Before commencing

operations, an insurer or other person claiming an exemption described by Subsection (a) must file

with the commissioner: (1) notice of the claim; and (2) documents supporting the claim." Id .

§ 101.004(b). Although she states that the phrase "before commencing operations" is "admittedly

obscure," the Comptroller urges us to hold that it is "broad enough to cover Dow's operations."

However, the language of this section demonstrates that it is not meant to apply in the manner the

Comptroller suggests. A close look at the policy and purpose behind the statute illustrates this

point. The portion of the insurance code to which this section now refers is chapter 101, entitled

"Unauthorized Insurance." Id . § 101.001. Its policy and purpose section states, "It is a state

concern that many residents of this state hold insurance policies issued by persons or insurers who

are not authorized to do insurance business in this state . . . . These residents face often

insurmountable obstacles in asserting legal rights under the policies in foreign forums under

unfamiliar laws and rules of practice." Id . §101.001(a). The section continues that "it is the

policy of this state to protect residents against acts by a person or insurer who is not authorized

to do business in this state." Id. § 101.001(b). Dow is not an insurer, nor has it engaged in

unauthorized insurance business.

In addition, the notice requirement on which the Comptroller relies was enacted in

1985. See Act of May 27, 1985, 69th Leg., R.S., ch. 918, § 3, 1985 Tex. Gen. Laws 3088 , 3090

(Tex. Ins. Code Ann. art. 1.14-1, § 14, since amended). Using the application the Comptroller

urges, Dow would have been required to provide notice before the notice provision was ever

enacted if Dow commenced operations prior to 1985. Such a result does not follow logic.

Construction of the plain language of statutes must avoid absurd results if the language will allow.

See Fitzgerald v. Advanced Spine Fixation Sys., Inc. , 996 S.W.2d 864, 867 (Tex. 1999). We hold

that the notice requirements of the insurance code do not apply to Dow.

Texas's Independently Procured Insurance Tax

The parties do not dispute the facts of this case and, in their motions, both assert

a right to summary judgment as a matter of law. Because the propriety of summary judgment in

this case is a question of law, we review the district court's decision de novo . See McCarthy Bros.

Co. v. Continental Lloyds Ins. Co. , 7 S.W.3d 725, 728 (Tex. App.--Austin 1999, no pet.);

Rylander v. 3 Beall Bros. 3, Inc. , 2 S.W.3d 562, 566 (Tex. App.--Austin 1999, pet. denied).

When both sides move for summary judgment and the trial court grants one motion and denies the

other, we review the summary-judgment proof presented by both sides and determine all questions

presented. Commissioners Court v. Agan , 940 S.W.2d 77, 81 (Tex. 1997). If we find error, we

must render the judgment the trial court should have rendered. Id.

The validity of the tax before us has previously been presented to this Court, the

Texas Supreme Court, and the United States Supreme Court. See State Bd. of Ins. v. Todd

Shipyards Corp. , 340 S.W.2d 339 (Tex. Civ. App.--Austin 1960), writ ref'd n.r.e. , 343 S.W.2d

241 (Tex. 1961), aff'd , 370 U.S. 451 (1962). Ultimately, the United States Supreme Court held

that Texas's independently procured insurance tax violated federal law, specifically the McCarran-Ferguson Act, 15 U.S.C.A. §§ 1011-15 (West 1997). State Bd. of Ins. v. Todd Shipyards Corp. ,

370 U.S. 451 (1962).

A. Todd Shipyards

Prior to Congress's passage of the McCarran-Ferguson Act, the Supreme Court

held that the Due Process Clause dictated that states could not tax the business of insurance. See

Connecticut Gen. Life Ins. Co. v. Johnson , 303 U.S. 77 (1938); St. Louis Cotton Compress Co.

v. Arkansas , 260 U.S. 346 (1922); Allgeyer v. Louisiana , 165 U.S. 578 (1897). The Supreme

Court has summarized these three cases as follows:

The Allgeyer case held that Louisiana by reason of the Due Process Clause of the

Fourteenth Amendment could not make it a misdemeanor to effect insurance on

Louisiana risks with an insurance company not licensed to do business in

Louisiana, where the insured through use of the mails contracted in New York for

the policy. The St. Louis Cotton Compress case held invalid under the Due Process

Clause an Arkansas tax on the premiums paid for a policy on Arkansas risks, made

with an out-of-state company having no office or agents in Arkansas. The

Connecticut General Life Insurance case held invalid under the Due Process Clause

a California tax on premiums paid in Connecticut by one insurance company to

another for reinsurance of life insurance policies written in California on California

residents, even though both insurance companies were authorized to do business

in California.

Todd Shipyards , 370 U.S. at 453-54 .

After its decisions in Connecticut General , St. Louis Cotton Compress , and

Allgeyer , the Supreme Court held that the modern business of insurance was "interstate

commerce." (3) See United States v. South-Eastern Underwriters Ass'n , 322 U.S. 533, 545-51

(1944). Interstate commerce implicates the Commerce Clause. See id . at 538-39. The Commerce

Clause provides Congress with the "positive power" to regulate such business. Id . at 552-53. In

South-Eastern Underwriters , the Court upheld congressional regulation of insurance. See id . at

562. However, the Court did not hold that the states were necessarily prohibited from continuing

to regulate insurance transactions and practices. (4) See id . at 534-62.

Then in 1945, Congress passed the McCarran-Ferguson Act. The McCarran-Ferguson Act "provided that the regulation and taxation of insurance should be left to the States,

without restriction by reason of the Commerce Clause." Todd Shipyards , 370 U.S. at 452 ; see

McCarran-Ferguson Act §§ 1011-15. But the history of the McCarran-Ferguson Act also provides

"an explicit, unequivocal statement that the Act was so designed as not to displace" Connecticut

General , St. Louis Cotton Compress , and Allgeyer . Todd Shipyards , 370 U.S. at 455 . In Todd

Shipyards , the Supreme Court held that Texas's independently procured insurance tax violated

McCarran-Ferguson. Curiously, such a holding from the United States Supreme Court has not

dissuaded the Comptroller from levying this tax. But Todd Shipyards controls our analysis today.

See Rodriguez de Quijas v. Shearson/American Express, Inc. , 490 U.S. 477, 484 (1989).

B. The Texas Tax

Today's question is whether Dow is engaged in the same insurance activities as was

Todd Shipyards. At the time of Todd Shipyards , the independently procured insurance tax statute

was codified in article 21.38 of the insurance code and provided the following:

If any person, firm, association or corporation shall purchase from an insurer not

licensed in the State of Texas a policy of insurance covering risks within this State

in a manner other than through an insurance agent licensed as such under the laws

of the State of Texas, such person, firm, association or corporation shall pay to the

Board a tax of five per cent (5%) of the amount of the gross premiums paid by such

insured for such insurance.

Act of May 14, 1957, 55th Leg., R.S., ch. 395, § 1, 1957 Tex. Gen. Laws 1180 , 1181 ( Tex. Ins.

Code Ann. art 21 .38, § 2(e), since repealed and codified at Tex. Ins. Code Ann. §101.252 (West

Supp. 2001)). In similar terms, the tax at issue in this case is applied as follows:

Every insured who procures insurance in [transactions involving contracts of

insurance independently procured through negotiations occurring entirely outside

of this state which are reported and on which premium tax is paid] must file a

report with the comptroller and pay an independently procured insurance tax of

4.85 percent.

Act of May 27, 1993, 73d Leg., R.S., ch. 999, § 7, 1993 Tex. Gen. Laws 4373 , 4373 ( Tex. Ins.

Code Ann. art 1 .14-1, § 12(a), since repealed and codified at Tex. Ins. Code Ann. § 101.252 ).

The statutes are essentially the same, and, with the exception of the rate, they result in the same

tax.

The factual similarities between Todd Shipyards and Dow are also readily apparent:

In both instances the insurance in question covered property in Texas owned by a

foreign corporation.

All of the insurers are domiciled outside of this state.

All of the insurance agreements made the basis of the tax were contracted for,

signed, issued, delivered, paid for, and accepted out of this state.

None of the insurers has a permit or license from Texas to write insurance in the

state and none of the insurers are subject to examination or subject to any control

by this state.

None of the insurers has an office or agent in Texas.

None of the insurers investigated or adjusted claims within Texas.

None of the insurers ever solicited Todd Shipyards' or Dow's insurance business

or policies within Texas.

None of the insurers communicated with either Todd Shipyards or Dow within the

state.

All decisions relative to the purchase and renewal of insurance, extent and amount

of coverage, the selection of insurers and confirmation of insurance contracts are

made outside of Texas.

Under the policies, all losses are payable out-of-state and all premiums are paid

out-of-state.

Because the law and the facts at issue today are essentially the same, we hold that

the insurance at issue in Todd Shipyards is virtually identical to the insurance at issue in this case.

Due Process

The Comptroller urges us to ignore Todd Shipyards and apply a due-process

analysis to the permissibility of a tax on independently procured insurance. The Comptroller

argues that more recent due-process decisions have rejected "the meaningless formalisms of

another era" and superseded Todd Shipyards . The Comptroller continues that "it would be

unreasonable to expect the [Supreme] Court to undertake the daunting clerical task of identifying

all the decisions" superseded by the Court's current line of due-process decisions and formally

overrule them. However, a due-process analysis is unnecessary. We discern no difference

between the tax at issue in Todd Shipyards and the tax challenged today. We must adhere to

precedent in the face of a United States Supreme Court case directly on point. See Rodriguez de

Quijas , 490 U.S. at 484 . In Rodriguez de Quijas , the Fifth Circuit Court of Appeals declined to

follow a prior and controlling decision of the Supreme Court, stating that the decision had been

reduced to "obsolescence" by subsequent decisions of the Court. Id . at 479. In reviewing the

court of appeals decision, the Supreme Court stated, "If a precedent of this Court has direct

application to a case, yet appears to rest on reasons rejected in some other line of decisions, the

Court of Appeals should follow the case which directly controls, leaving to this Court the

prerogative of overruling its own decisions." Id. at 484 . State courts are no exception; this Court

is bound by Todd Shipyards unless and until the Supreme Court overrules it. See Owens Corning

v. Carter , 997 S.W.2d 560, 571 (Tex.), cert. denied , 528 U.S. 1005 (1999).

CONCLUSION

We sustain Dow's issue on appeal, reverse the judgment of the district court, and

render judgment for Dow granting its motion for summary judgment.

Lee Yeakel, Justice

Before Justices Kidd, Yeakel and Jones; * Justice Jones not participating

Reversed and Rendered

Filed: January 25, 2001

Publish

* Before J. Woodfin Jones, Justice (former), Third Court of Appeals, sitting by assignment. See

Tex. Gov't Code Ann. § 75.003 (a)(1) (West 1998).

1. The interests of the comptroller and the attorney general do not diverge. We will therefore

refer to them jointly as the "Comptroller."

2. Although the original statute has been repealed and codified, the changes are not

substantive, and we will cite to the current code for convenience.

3. In several prior cases involving challenges to state regulation, the Court had held that the

buying and selling of insurance was not commerce at all. See New York Life Ins. Co. v. Deer

Lodge County , 231 U.S. 495 (1913); Hooper v. California , 155 U.S. 648 (1895); Paul v.

Virginia , 75 U.S. (8 Wall.) 168 (1869).

4. At the time of South-Eastern Underwriters , the Supreme Court had upheld state regulation

of insurance in a number of cases. See Hoopeston Canning Co. v. Cullen , 318 U.S. 313 (1943);

Osborn v. Ozlin , 310 U.S. 53 (1940); New York Life Ins. , 231 U.S. 495 ; Hooper , 155 U.S. 648 ;

Paul , 75 U.S. (8 Wall.) 168 .

in the