Modification: Mercury Insurance Co. v. Lara

MERCURY INSURANCE COMPANY et al.,

Plaintiffs and Respondents,

v.

RICARDO LARA, as Insurance Commissioner, etc.,

Defendant and Appellant;

CONSUMER WATCHDOG,

Intervener and Appellant.

No. G054496, G054534

(Super. Ct. No. 30-2015-00770552)

California Courts of Appeal

Fourth Appellate District

Division Three

Filed June 4, 2019

ORDER MODIFYING OPINION AND

DENYING PETITION FOR REHEARING;

NO CHANGE IN JUDGMENT

It is ordered that the opinion filed on May 7, 2019 be modified as follows:

1. On page 3, the second sentence of the second paragraph is deleted and replaced with the following: "Because the substantial weight of the evidence supports the Commissioner's decision, remand for a new hearing would be an idle act and we therefore remand with directions for the court to deny the writ."

2. On page 9 the following is inserted as the first sentence in the second full paragraph: "In February 2004 CDI filed a Notice of Noncompliance (NNC), incorporating a substantial portion of the Krumme Findings."

3. On page 18, the third full sentence is deleted and replaced with the following:

"The Commissioner's finding Mercury's de facto agents charged "broker fees" while acting as Mercury's agent forecloses the court's finding."

4. On page 19, in the first line of the third full paragraph, "section 2360.0(c)" is deleted and replaced with "section 2189.3" so the sentence reads: "Acknowledging 10 CCR section 2189.3 prohibits an agent from charging a broker fee, the court opined "that does not make such a fee into a 'premium' under the rate statutes."

5. The last sentence beginning on page 27 and finishing on page 28 is deleted and replaced with the following: "In addition, Mercury points to no evidence CDI ever approved "broker fees" charged by Mercury's agents or indicated they complied with Proposition 103."

6. On page 29, in the last sentence of the second paragraph "AB 2839" is deleted and replaced with "AB 2639" so the sentence reads: "Further, the trial court did not explain how AB 2639 as adopted, and different than what Mercury proposed, in fact did resolve the matter."

7. On page 32, line four, the word "Final" is deleted so the sentence reads: "Even after affirmance of the judgment in Krumme and the filing of the NNC, Mercury did not abate its practices for more than four years."

The petition for rehearing is DENIED. This modification does not change the judgment.

THOMPSON, J.

WE CONCUR:

IKOLA, ACTING P. J.

GOETHALS, J.