Opinion
Civ. Nos. 01-3211 (JBS), 01-3246 (JBS), 98-3617 (JBS), Bankr. No. 94-13602;, Adversary Nos. 94-1325 and 96-1410.
November 30, 2001
Samuel Mandel, Esquire, Moorestown, New Jersey, and Michael A. Zindler, Esquire TEICH, GROH, FROST ZINDLER Trenton, New Jersey, Attorneys for Debtor/Plaintiff-Appellee Professional Insurance Management
Charles X. Gormally, Esquire, Carl J. Soranno, Esquire, BRACH, EICHLER, ROSENBERG, SILVER, BERNSTEIN, HAMMER GLADSTONE, P.C. Roseland, New Jersey, Attorneys for Defendant-Appellant, Ohio Casualty Group of Insurance Companies, et al.
James S. Rothschild, Jr., Esquire, RIKER, DANZIG, SCHERER, HYLAND, PERETTI, L.L.P., Morristown, New Jersey, Attorneys for Defendant-Appellant, Harleysville Mutual Insurance Company, et al.
John J. Farmer, Jr., Attorney General of New Jersey By: Raymond R. Chance, III, Deputy Attorney General, Department of Law and Public Safety Division of Law, Trenton, New Jersey, Attorneys for Amicus Curiae Commissioner of Banking and Insurance.
On Appeal from an Order of the United States Bankruptcy Court for the District of New Jersey Dated July 6, 2001.
OPINION
I. INTRODUCTION
After seven years of litigation among these parties, these two appeals are again before the Court by appellants seeking review of an Opinion and Order of the Bankruptcy Court which refused their request to stay trial in an adversary proceeding and to refer an aspect of the parties' dispute to the New Jersey Department of Banking and Insurance [DOBI]. These appeals require this Court to revisit the New Jersey doctrine of primary jurisdiction to determine whether, in light of the recent decision in R.J. Gaydos, Inc. v. National Consumer Insurance Co., 168 N.J. 255 (2001), the Bankruptcy Court must again refer an issue to DOBI for a full investigation and administrative determination whether defendants/appellants have violated relevant New Jersey automobile insurance statutes in terminating plaintiff as their agent.
This Court has jurisdiction under 28 U.S.C. § 158(a)(3) with respect to the interlocutory appeal of a controlling question of law, and under 28 U.S.C. § 158(c)(2) with respect to the denial of injunctive relief of a stay of trial.
In its Order filed July 24, 2001, pursuant to 28 U.S.C. § 158(a)(3), this Court identified the following controlling question of law as to which there is substantial ground for difference of opinion and determined that an immediate appeal to this Court may materially advance the ultimate termination of this litigation:
Whether, under New Jersey's law of primary jurisdiction, an administrative agency (here, the Department of Banking and Insurance) to which the trial court has previously entrusted a dispute for administrative determination of facts (here, whether the appellant carriers violated FAIRA in terminating the debtor's agency contracts), and which failed to take even preliminary action for one year upon the matter, can be held to have waived or relinquished its primary jurisdiction by such inaction so that the trial court may proceed to adjudicate the entire cause of action (here, the debtor's claim for the breach of the implied duty of good faith and fair dealing), such that a second referral of the matter to the agency is not required by the Gaydos decision of the New Jersey Supreme Court.
II. PROCEDURAL HISTORY
Professional Insurance Management ["PIM"], a debtor in bankruptcy, was an insurance agency operating under insurance agency contracts with various insurers, including the Ohio Casualty Group of Insurance Companies ["Ohio Casualty"] and Harleysville Mutual Insurance Company ["Harleysville"]. In an adversary proceeding in the Bankruptcy Court, PIM has alleged that Ohio Casualty and Harleysville have breached the implied covenant of good faith and fair dealing by terminating PIM after PIM allegedly refused their demands to violate the Fair Automobile Insurance Reform Act ("FAIRA"), N.J.S.A. 17:33B-1,et seq. PIM alleges, among other things, that these carriers terminated PIM when it refused to acquiesce to their violations of the insurance laws, such as the "take all comers" provision of FAIRA, N.J.S.A. 17:33B-15(b).
This Court previously recognized that the investigation of a carrier's FAIRA violation in connection with such a claim lies within the primary jurisdiction of the Commissioner of Banking and Insurance. In the Opinion and Order of March 2, 1999, in Civ. No. 98-3617 (JBS), the Court, applying New Jersey precedents including Campione v. Adamar of New Jersey, Inc., 155 N.J. 245, 306-307 (1998), found that the Commissioner did not have exclusive jurisdiction over PIM's FAIRA-related claims and that the Bankruptcy Court retains jurisdiction over the cause of action, but that deference to the Commissioner's primary jurisdiction was required with respect to issues such as the interpretation of the "take all comers" provision and the definition of "withdrawal." Id., slip op. at 15-17. Such primary jurisdiction was held not to limit the Bankruptcy Court's jurisdiction over the subject matter of plaintiff's claims, but it "counsels the court to defer ultimate resolution of claims until the underlying issues within those claims within the special knowledge of the administrative body have been resolved."Id. slip op. at 17. Without repeating the analysis here, this Court found that these issues required resolution by the Commissioner in the context of the highly regulated environment of automobile insurance law in New Jersey, finding that all the pertinent factors identified by the New Jersey Supreme Court inCampione were likewise present here, namely: (1) FAIRA established a pervasive regulatory scheme to govern the automobile insurance industry, pursuant to which the Commissioner has exclusive jurisdiction to "investigate, adjudicate and punish" FAIRA violations; see In re Professional Ins. Mgmt., 139 F.3d 1122, 1127 (3d Cir. 1997); (2) there was a need to preserve the proper relationship between the Courts and the Commissioner, who was currently investigating Harleysville, Ohio Casualty, and PIM for various infractions; (3) the issues underlying PIM's claims — whether defendants/appellants violated the "take all comers" provisions and whether they withdrew from the market — were uniquely within the expertise of the Commissioner of Banking and Insurance under New Jersey's comprehensive no-fault automobile insurance regulatory scheme; and (4) there is a risk of inconsistent rulings as to the duties imposed by the "take all comers" regulations and statute if the Commissioner did not have the first opportunity to investigate the facts and apply the regulatory law. Id., slip op. at 20-22.
Accordingly, on March 2, 1999, this Court remanded the case to the Bankruptcy Court, instructing the parties to cooperate in fashioning an appropriate administrative complaint to invoke and facilitate the Commissioner's primary jurisdiction upon these issues while the Bankruptcy Court would defer hearing the underlying claims.
The parties did so, through the considerable coordinating efforts of the Bankruptcy Court, and with the cooperation of a Deputy Attorney General representing the Commissioner. In June of 1999, PIM filed a declaratory judgment with the Department of Banking and Insurance under the Administrative Procedure Act pursuant to N.J.S.A. 52:14B-8, et. seq. The declaratory judgment complaint named the Ohio Casualty Group and the Harleysville Group as defendants. Ohio Casualty filed a counterclaim to the declaratory judgment action, and, other than a letter from the Commissioner acknowledging receipt of the complaint on July 14, 1999, there was no communication from DOBI, no request for information, and no schedule set for an administrative hearing or briefing.
The Hanover Group was also named as a defendant, but its dispute with PIM has been settled by agreement of those parties.
When almost a year went by in this administrative limbo, this Court, on May 25, 2000, granted PIM's motion to vacate the Court's March 2, 1999 and Order regarding the Commissioner's primary jurisdiction, ordering that the PIM declaratory judgment complaint be withdrawn from the Commissioner, together with Ohio Casualty's counterclaim, and that the matter be restored to the Bankruptcy Court's docket. See In re Professional Ins. Mgt., Debtor, Civ. No. 98-3617 (JBS) (Opinion and Order vacating in part this Court's March 2, 1999 Opinion and Order filed May 25, 2000).
By a separate Memorandum Opinion and Order, also filed May 25, 2000, this Court also determined that it would exercise jurisdiction to temporarily withdraw the underlying adversary action Nos. 94-1325 and 96-1410 from the jurisdiction of the Bankruptcy Court, through withdrawal of the reference in accordance with 28 U.S.C. § 157(d). This withdrawal of the reference permitted the Court to re-examine its March 2, 1999 Opinion and Order, supra, which had been issued in its appellate capacity. Thus, upon due notice to the parties, the Court determined on May 25, 2000 that withdrawal of the reference was appropriate to enable re-examination of the March 2, 1999 Opinion and Order, and the Order for Withdrawal of Reference was entered on that date.
Ohio Casualty filed a motion for reconsideration of the two orders of May 25, 2000, and this Court denied reconsideration in its Order filed July 31, 2000. In the Memorandum Opinion Upon Reconsideration Motion (filed July 31, 2000), the Court reaffirmed that withdrawal of the reference was appropriate procedurally, and that the March 2, 1999 Order was properly vacated. That conclusion rested upon the demonstrable inactivity by the Commissioner during the year's time in which this Court and the Bankruptcy Court had deferred the matter, together with the Opinion of the Appellate Division in the Gaydos case, which had been decided on June 12, 2000. R.J. Gaydos Agency, Inc. v. National Consumer Ins. Co., 331 N.J. Super. 458 (App.Div. 2000). The Appellate Division declined to defer to the Commissioner's primary jurisdiction in a nearly identical context in which the Chancery Division adjudicated an automobile insurance agency termination case wherein the terminated agent claimed that the carrier had committed FAIRA violations. The Chancery Division had repeatedly requested the intervention of the Commissioner, but the Department failed to participate. TheGaydos litigation had been "protracted", and the Appellate Division wrote that it was "persuaded that the interests of justice and fairness to the parties militate in favor of a prompt disposition of the question presented." Id. at 474. The Appellate Division chose to interpret FAIRA's "take all comers" requirement, noting that "in the final analysis the interpretation of a statute is a judicial function, particularly where, as here, the plaintiff has sought the remedy of monetary damages." Id.
The Memorandum Opinion upon reconsideration motion (filed July 31, 2000) also observed that the intervening decision of the Appellate Division in Department of Banking and Insurance v. Professional Ins. Mgmt., No. A-3400-98T2F (N.J.Super.Ct., App. Div. Dec. 8, 1999), buttressed the conclusion that the Bankruptcy Court is fully competent to interpret the language of FAIRA and adjudicate the matter, since that is precisely what the Appellate Division itself did in reversing the Commissioner's revocation of PIM's license. Id. at 12. This Court further noted that "[t]his new development signaled the weakening of the `primary jurisdiction' doctrine as applied to FAIRA issues before the Commissioner, bespeaking caution before court cedes its jurisdiction to the Commissioner in this area." Id. at 12.
After this Court denied reconsideration on July 31, 2000, the parties followed the Court's directive in withdrawing their claims and counterclaims, and the matter was restored to the Bankruptcy Court for further proceedings in Adversary Nos. 94-1325 and 96-1410. When these withdrawals of the administrative actions were completed, this Court entered a further Order (filed August 22, 2000), which re-referred all remaining matters in these adversary actions to the Bankruptcy Court for further proceedings.
Meanwhile, the case was prepared for trial before the Honorable Judith H. Wizmur, U.S. Bankruptcy Judge, which was scheduled to begin on Tuesday, July 10, 2001. Just 12 days before that, on June 28, 2001, the legal landscape changed. The Supreme Court of New Jersey in R.J. Gaydos Insurance Agency, Inc. v. National Consumer Ins. Co., 168 N.J. 255 (2001), held that the Fair Automobile Insurance Reform Act (FAIRA) did not create a private right of action, but that an agent could assert a common-law claim that the insurer breached the implied duty of good-faith and fair dealing, and that a transfer to the Department of Banking and Insurance (DOBI) was required, thus reversing and remanding the prior decision of the Appellate Division. Counsel for Harleysville immediately moved for an order transferring to DOBI for an administrative determination of whether or not Harleysville and Ohio Casualty violated FAIRA in the context of plaintiff's contract claim for a breach of the implied covenant of good-faith and fair dealing, and Ohio Casualty additionally immediately requested a stay of the trial of the adversary proceeding pending the filing of a motion before the District Court to reconsider the Order of May 25, 2000 which had directed the Bankruptcy Court to defer to the primary jurisdiction of DOBI.
Judge Wizmur addressed these matters in her Opinion of July 6, 2001. Judge Wizmur's comprehensive Opinion recited the tortured procedural history of this case, which I have barely summarized above. The Bankruptcy Court noted that plaintiff's assertion of a direct private right of action under FAIRA in favor of a terminated insurance agent must be dismissed, because inGaydos, the New Jersey Supreme Court definitively held that no such private right of action is conferred (Letter Op. of July 6, 2001 at 2.) The Bankruptcy Court further noted that the New Jersey Supreme Court had determined, "In light of FAIRA's elaborate legislative and regulatory scheme, and the Legislature's apparent intention to invest the DOBI with primary authority to implement FAIRA, that `the DOBI should make the threshold determination concerning whether [the carrier] violated FAIRA when it terminated [the agent].'" R.J. Gaydos, 168 N.J. at 282.
Thus, the Supreme Court of New Jersey, applying the Campione test, reached the same conclusion that this Court had reached regarding primary jurisdiction in its Opinion of March 2, 1999,supra, namely that the Department of Banking and Insurance should make the threshold determination concerning whether the defendant carriers violated FAIRA when they terminated plaintiff's agency agreement. Thus, in Gaydos, the Supreme Court directed that, on remand, the trial court should transfer the matter to the DOBI for "an administrative determination of whether NCIC violated FAIRA when it terminated Gaydos in 1997."R.J. Gaydos, 168 N.J. at 283.
The Bankruptcy Court declined to stay the case or to remand the matter to DOBI. The Bankruptcy Court quoted at length from my Memorandum Opinion of May 25, 2000, which as discussed above, had concluded that the Commissioner apparently lacks interest in the interpretation and application of the FAIRA statute and regulations pertinent to the dispute between these private parties. The Bankruptcy Court noted that I had found in the May 25, 2000 Opinion that relief under Rule 60(b)(2), Fed.R.Civ.P., was warranted because of two post-March 2, 1999 developments, namely that over a year has passed without any action by the Commissioner, accompanied by the Commissioner's indifference to participating in the May, 2000 motion practice, and the second was the ruling by the Appellate Division upon PIM's appeal of the Commissioner's revocation of PIM's license, whereby the Appellate Division implicitly called upon the Bankruptcy Court to find the facts and apply the relatively clear language of FAIRA in making its determinations. (Letter Op. of July 6, 2001, quoting this Court's Memorandum Op. of May 25, 2000 at pp. 10-11 and 13.)
The Bankruptcy Court concluded that the Gaydos decision does not represent a supervening new rule of law that should alter the course of the proceedings, including the law of this case, by requiring a second deferral to the Commissioner on the issue of whether FAIRA was violated. Concluding that Gaydos does not constitute new law, the Bankruptcy Court noted that Gaydos represented an application of the discretionary doctrine of primary jurisdiction previously described in the Campione case, as previously recognized by this Court's March 2, 1999 decision. (Letter Op. of July 6, 2001 at p. 10). The Campione case had described the doctrine of primary jurisdiction as discretionary, noting that "a court may defer" to an administrative agency where the decision involves the special competence of the agency,Campione, supra, 155 N.J. at 263 (emphasis added), and that the agency "should have the first opportunity to provide that interpretation." Id. at 264 (Letter Op. of July 6, 2001 at p. 10). Concluding that in this case, the Commissioner had in fact had the "first opportunity" to provide an interpretation of FAIRA and a determination of whether FAIRA violations were committed, the Bankruptcy Court concluded that nothing in Gaydos compels a second reference, or a departure from the law of the case in this matter. Id. Appellants thereupon sought review in this Court.
III. DISCUSSION OF LAW
Upon the filing of the emergent appeals, this Court convened a hearing on July 10, 2001, finding that it was probable that Judge Wizmur's conclusion was correct in that the Commissioner's inaction had relinquished the "first opportunity" for an administrative determination required by the doctrine of primary jurisdiction under Campione and Gaydos, for reasons set forth in the Oral Opinion of July 10, 2001. (See Transcript of 7/10/01 at 66:21-83:21.) These determinations were memorialized in this Court's Order filed July 24, 2001 in these matters. That Order also identified the "controlling question of law as to which there is substantial ground for difference of opinion" upon which supplemental briefing was required, as set forth above. A. Primary Jurisdiction After Gaydos
Although a temporary stay of the trial was denied, all parties agreed to voluntarily seek the Bankruptcy's Court permission to stay the trial pending another attempt at resolution of these matters. The bankruptcy trial was stayed pending settlement conferences, which in the end did not prove fruitful. After an accelerated briefing schedule, final arguments were heard upon these appeals on August 14, 2001. This Court indicated orally that the bankruptcy trial should be further stayed and that this Opinion would be prepared setting forth the reasons for again remanding the matter of administrative fact finding to the Commissioner.
In Gaydos, the Supreme Court of New Jersey has defined the parameters of plaintiff's cause of action for breach of duty of good-faith and fair dealing in the insurance agency contract arising from the carriers' alleged violations of FAIRA. This Court, like the Bankruptcy Court, is obliged to apply New Jersey law to this cause of action. Unlike my Opinion of March 2, 1999, which predicted what the New Jersey Supreme Court would do if faced with this issue, we now know what the Supreme Court views as the proper administration of the primary jurisdiction doctrine as applied to this cause of action. First and foremost, theGaydos court has indicated that the Commissioner's administrative fact-finding is indispensable to the maintenance of this cause of action in a court of law. The Supreme Court recognized that the agency agreement in Gaydos permitted termination of the contract by either party without cause on 90 days notice in conformance with the Brokers and Agents Act, N.J.S.A. 17:22-6.14(a)(d). Gaydos, 168 N.J. at 281. Notwithstanding the termination provision, the Supreme Court recognized that there nonetheless existed an implied obligation to exercise the termination right with good faith and fair dealing, toward the agent, in light of FAIRA's statutory and regulatory provisions that require insurance carriers and agents to "take all comers" pursuant to N.J.S.A. 17:33B-15, supra, since the agency is prohibited from turning away eligible persons who seek automobile insurance coverage. Id. The determination whether the "take all comers" mandate has been violated was identified in Gaydos as a matter for primary administrative determination. The Supreme Court held:
Because we find that FAIRA's elaborate legislative and regulatory scheme suggests that the Legislature intended to invest the DOBI with primary authority to implement the Act and enforce its provisions against the automobile insurance industry, we believe that the DOBI should make the threshold determination concerning whether NCIC violated FAIRA when it terminated Gaydos. To hold otherwise would require our courts to interpret FAIRA's statutory provisions in a vacuum, without the benefit of the special competence of the DOBI. We are persuaded that the DOBI is the appropriate entity to enforce FAIRA's provisions and determine how they should operate in the context of other statutory schemes regulating the automobile insurance industry.
So strong was the Supreme Court's recognition of DOBI's primary jurisdiction, that the Court remanded the matter to DOBI even though the Supreme Court itself recognized that DOBI had already pre-determined that the insurer (NCIC) did not violate FAIRA when it terminated Gaydos, the Court noting instead that "we believe that the DOBI came to that conclusion by relying erroneously on events that took place years before Gaydos' termination."Gaydos, 168 N.J. at 283. The Court found that DOBI's fact-finding had been erroneous since the insurer's business plan had not mentioned Gaydos by name, and since DOBI's approval of the termination was merely based "primarily on the fact that NCIC complied with the notification requirements for terminating agents pursuant to the Brokers and Agents Act, N.J.S.A. 17:22-6.14a, and not on a departmental finding that NCIC did not violate FAIRA." Id. at 283. The Supreme Court found that this fell far short of DOBI's requirement to perform a "complete and formal investigation of NCIC's termination of Gaydos in 1997" and the Supreme Court even directed DOBI to consider specific evidence indicating that Agent Gaydos was a top performer among the insurer's agents. Id. at 283-284. The Supreme Court further saw fit to "remind the DOBI that the focus of the issue on remand is whether NCIC violated FAIRA when it terminated Gaydos and not whether NCIC had cause to terminate Gaydos." Id. at 284.
Similarly, in the present case, PIM has forcefully argued that DOBI has been inattentive to this case and has misapplied the law in erroneously revoking PIM's license, which was later restored by the Appellate Division which chastised DBI for its "rush to judgment." DOBI v. Professional Mgmt., No. A-3400-98T2F, slip op. at 2 (N.J.Super. App. Div. Dec. 8, 1999). Indeed, PIM has set forth an extended chronology of unsatisfactory responses by DOBI to the issues of FAIRA compliance which PIM has sought to bring to DOBI's attention over the years. This Court cannot say that DOBI's past attitude toward these parties is any more aggravated than the situation examined by the Supreme Court in Gaydos, yet the Supreme Court still required deferral to DOBI's primary jurisdiction.
The Supreme Court thus reversed the Appellate Division's determination that NCIC violated FAIRA because it terminated its agency relationship with Gaydos due to Gaydos's generation of a high volume of high loss ratio policies, whereby the Appellate Division had remanded the matter to the Law Division for trial, see Gaydos, supra, 331 N.J. Super. at 475, 478, cited inGaydos, 168 N.J. at 267. The Gaydos court thus displayed an extraordinary preference for administrative fact-finding regarding the FAIRA violation as a ingredient of the plaintiff's cause of action for breach of duty of good faith and fair dealing in the insurance agency contract. The strength of this requirement cannot be overlooked by this Court.
Finally, the language of Gaydos clearly implies that the requirement of obtaining the Commissioner's determination is itself an ingredient of this common-law cause of action. Plaintiff is said to have the opportunity of pursuing this common-law claim for monetary damages only if the DOBI determines that the requisite FAIRA provisions have been violated in the termination, and not otherwise. The Supreme Court thus stated,Gaydos, supra, 168 N.J. at 284:
If the DOBI determines that NCIC violated N.J.S.A. 17:33B-15 and N.J.S.A. 17:33B-18b when it terminated Gaydos, Gaydos has the option of pursuing its common-law claims in court based on breach of the implied duty of good faith and fair dealing. Alternatively, should the DOBI conclude that Gaydos's claim are without merit, and that NCIC did not violate FAIRA, and assuming that that determination is sustained on appeal, Gaydos will not be entitled to prevail on its claim for breach of the implied duty of good faith and fair dealing.
As applied to the present case, then, a determination by the Commissioner that the defendant insurers violated FAIRA in terminating PIM is an essential ingredient of PIM's right to maintain its cause of action for breach of the implied covenant of good faith and fair dealing against Ohio Casualty and Harleysville. The only question that remains, therefore, is whether this requirement should be waived where DOBI has already been entrusted with making this administrative determination in this case and has failed to do so and should thus be deemed to have waived or relinquished its primary jurisdiction by such inaction.
Although not determined here, it appears that Gaydos represents an expansion of the primary jurisdiction doctrine. While Campione had indicated that a court may defer to the decision of the expert regulatory agency (in that case, the Casino Control Commission), Campione, supra, 155 N.J. at 263 (emphasis added), and that the court defers action "until receipt of the agency's views," id. at 264, since the agency should have the "first opportunity" to interpret its regulatory scheme,id., Gaydos appears to require DOBI's favorable determination before the plaintiff may pursue its common-law claim, Gaydos, supra, 168 N.J. at 284.
B. Waiver or Relinquishment of Primary Jurisdiction
Given the strength of Gaydos's insistence upon an administrative determination as a prerequisite to maintaining the underlying common-law cause of action, the prospect that this procedural step has been satisfied by DOBI's inaction must not lightly be inferred. Research has disclosed no case addressing an administrative agency's waiver of primary jurisdiction. The concept of such a waiver, under New Jersey law, is difficult to satisfy by mere silence. Waiver requires a "clear, unequivocal, and decisive act of the party showing such a purpose or acts amounting to an estoppel on his part." West Jersey Title Guaranty Co. v. Industrial Trust Co., 27 N.J. 144, 152 (1958)quoting Aron v. Rialto Realty Co., 100 N.J. Eq. 513 (Ch. 1927), aff'd, 102 N.J. Eq. 331 (EA 1928). It must be shown that the party charged with the waiver knew of his or her rights and deliberately intended to relinquish them. Shebar v. Sanyo Business Systems Corp., 111 N.J. 276, 291 (1988).
Plaintiff PIM argues that the Commissioner, with full knowledge of PIM's claims, made a conscious decision to waive primary jurisdiction. PIM points out that FAIRA specifically empowered the Commissioner to suspend, revoke, or otherwise terminate the authority of an insurer who violates certain provisions of FAIRA (N.J.S.A. 17:33B-15(d)), and to investigate and punish impermissible denial of insurance coverage (id. § 17). The Commissioner was further aware of the Order of this Court on March 2, 1999, which directed the parties to place the issue before the Commissioner for administrative factfinding. Indeed, a representative of the Commissioner (a Deputy Attorney General) participated in the Bankruptcy Court's formulation with the parties of the proper administrative vehicle for this rather novel process, while employees of DOBI acknowledged receipt of the parties' complaint and counterclaim in 1999. Finally, the Commissioner stood mute when given the opportunity to participate in the motion practice before this Court which led to the Order of May 25, 2000, withdrawing the matter from the Commissioner's docket.
While this Court's March 2, 1999 Order placing the matter into the DOBI's primary jurisdiction was sufficiently clear, the status of New Jersey law on the matter was not. The Commissioner, as amicus herein, has explained that the ability of an agent to recover damages for improper termination based on the "take all comers" provision of FAIRA was unsettled in 1999, which was not settled until the Supreme Court in Gaydos defined the parameters of the common-law cause of action and ruled out a direct private right of action under FAIRA. Further, the Commissioner's amicus brief before the Gaydos Court had pointed to the Commissioner's historical reluctance to become embroiled in contractual disputes between agents and insurers, a position supported by statute at N.J.S.A. 17:22A-15a which provides:
The Commissioner points to the trial court's decision inGaydos, and the two Appellate Division opinions in Degan v. Harleysville, A-4001-96T2 (App.Div. 1998) and Auto-Matic Ins. Agency v. Liberty Mutual Ins. Co., A-3602-96T2 (App.Div. 1998).
In the meantime, of course, the Appellate Division'sGaydos decision had also determined that the Commissioner's failure to become involved in the exercise of its primary jurisdictional power militated in favor of a judicial, rather than administrative, determination, to serve the interests of justice in a prompt disposition of the question presented.Gaydos, supra, 331 N.J. Super. at 474. If, as the Appellate Division had indicated, the interpretation of the "take all comers" statute was a judicial function, especially where money damages were sought between private parties, id., the Commissioner would not have a role in such litigation.
Nothing contained in this subsection shall be construed as granting the Commissioner the authority to determine contractual disputes between an appointing company and an appointed agent.Gaydos changed this landscape to require DOBI to undertake such investigations and issue determinations as to the existence of FAIRA violations, persuaded that DOBI must "maintain a watchful eye on agent terminations." Gaydos, 168 N.J. at 282. AfterGaydos, the scope of the DOBI's task has also been clarified to require a "complete and formal investigation" and a determination whether a FAIRA violation occurred, id. at 283, as the Commissioner recognizes in the present amicus brief. Faced with the prospect that any action it took might be undone by the eventual clarifications of law determined by the Supreme Court, the Commissioner awaited the unfolding events and finally participated in the Gaydos case before the Supreme Court.
Letter Br. of Amicus Curiae Commissioner of Banking and Insurance, Aug. 10, 2001 at 4-5.
The Commissioner never communicated these concerns to this Court and to these parties during the extended period in 1999-2000 when the matter was before DOBI. This failure, although perplexing in the face of this Court's Order of March 2, 1999 (and the Bankruptcy Court's subsequent implementing orders), did not amount to a waiver or relinquishment of primary jurisdiction. The DOBI never declared it would not take action, nor did DOBI, by some decisive act, forego or relinquish its primary jurisdiction. Instead, the DOBI was indecisive and reluctant to become involved. Perhaps, too, there was a problem of fundamental capacity to perform the task, since a public agency must marshal scarce resources and this is a complicated, highly contested case.
These circumstances contrast somewhat with those inShernoff v. Superior Court, 118 Cal. Rptr. 680 (Cal.App. 1975), permitting court to bypass primary jurisdiction of state agency when agency had declined to conduct formal hearing. Likewise, judicial action becomes appropriate when the state agency having primary jurisdiction declines to make specific factual determinations of all the matters at issue. Northwinds Abatement, Inc. v. Employers Ins. of Wausau, 981 F.Supp. 467, 476 (S.D. Tex. 1997).
If the matter is framed as an issue of estoppel — that the Commissioner should be estopped from participating in this dispute due to past inaction — it is well to remember that an estoppel is almost never implied against a governmental agency.Citizens for Equity v. NJDEPE, 126 N.J. 391, 398 (1991) (citations omitted). In this case, the DOBI should not be estopped from overcoming its historical reluctance to enforce FAIRA requirements in the context of private litigation.
This Court holds, therefore, in light of Gaydos, that the primary jurisdiction of DOBI to investigate and determine whether the carriers' terminations of plaintiff's agency contract violated FAIRA has not been waived or relinquished by the DOBI's prior inaction. This being so, the requirement of Gaydos that such an administrative determination is a prerequisite to plaintiff's common-law claim for defendants' breach of the implied duty of good faith and fair dealing in the agency contract has not yet been met, and the trial in Bankruptcy Court upon that claim cannot go forward yet.
Accordingly, the Bankruptcy Court's Letter Opinion and Order of July 6, 2001, which declined to stay the trial for purposes of re-referral of this issue to DOBI, must be set aside. These matters will be remanded to the Bankruptcy Court with instructions to direct the parties to place the matter again within the DOBI's primary jurisdiction for investigation and administrative determination.
C. Procedures After Remand
Although the underlying trial upon PIM's common-law claim and Ohio Casualty's counterclaim must be temporarily stayed pending administrative action, such stay need not be indefinite. The primary jurisdiction doctrine reposes continued jurisdiction in the trial court while the parties pursue their administrative complaint and counterclaim before the DOBI, since the doctrine is "specifically applicable to claims properly cognizable in court that contain some issues within the competence of an administrative agency. It requires the court to enable a `referral' to the agency, staying further proceedings so as to give the parties reasonable opportunity to seek an administrative ruling." Reiter v. Cooper, 507 U.S. 258, 268 (1993).
Given the extremely aggravated, and aggravating, delays in this process since the initial referral to DOBI in March, 1999, it will be appropriate to place a time limit upon this period of re-referral. The parties have indicated that no further discovery is needed and each is eager to litigate and be done with this issue. At the oral argument on this appeal, the time period ofsix (6) months for DOBI to conclude its investigation and for an ALJ to conclude any necessary hearing was proposed and all agreed this was reasonable, and that each would fully cooperate. The six months will be measured from today's date. The Bankruptcy Court, retaining plenary jurisdiction over the adversary proceedings and the underlying claims, also retains jurisdiction to enforce this Order and to modify the deadline for good cause shown.
Counsel for the Commissioner, as amicus curiae, cautioned against a strict time limit given the complexity of the facts and the shortage of ALJ's, but did not object. If DOBI's assertion of revived interest in FAIRA enforcement has real thrust, DOBI will complete this task, long-overdue, within the next six months.
Toward the end of assuring compliance, counsel for PIM, Ohio Casualty, and Harleysville shall submit brief, periodic status reports to the Bankruptcy Court on the dates two months, four months, and six months from today's date, unless different measures are put into place by the Bankruptcy Court.
Finally, the Bankruptcy Court shall also have continuing jurisdiction to consider any application to again revoke this referral from the DOBI consistent with this Opinion or with any substantial and material change in circumstances.
The accompanying Order is entered in each above-captioned matter.