TITLE 33 INSURANCE

Section 2. Department and Commissioner of Insurance, 33-2-1 through 33-2-34.

33-2-28. Judicial review of actions of Commissioner - Scope of review; disposition of action by reviewing court.

Unless review of the action complained of is required by law to be de novo:
1. In cases in which proceedings have been held before the Commissioner, the Commissioner shall file with his reply to the reviewing court a certified transcript of all such proceedings and all evidence before him in such proceedings; provided, however, that the parties may by written stipulation agree to an abbreviated record including so much of the transcript as shall be necessary to determine the questions under review;
2. The reviewing court's decision shall be upon the basis of the pleadings and the record so presented;
3. The findings of the Commissioner as to any fact, if supported by substantial evidence upon consideration of the record as a whole, shall be conclusive;
4. If issues of fact outside the record shall be made by the pleadings, they may be determined by the court.
Judicial review of any fact determined by the Commissioner shall be de novo unless:
1. The determination was made after a hearing required or authorized by this title; or
2. The determination is one committed by law to the Commissioner's discretion.
So far as necessary to decision and where presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any department action. The court shall:
1. Compel department action unlawfully withheld or unreasonably delayed; and
2. Hold unlawful and set aside department action, findings, and conclusions found to be:
  1. Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
  2. Contrary to legal or constitutional right, power, privilege, or immunity;
  3. In excess of statutory jurisdiction, authority, or limitations or short of statutory right;
  4. Without observance of procedure required by law;
  5. Unsupported by substantial evidence upon consideration of the record as a whole in cases determined pursuant to paragraphs (2) and (3) of subsection (a) of this Code section;
  6. Unwarranted by the facts in cases in which the facts are subject to trial de novo by the reviewing court.
In making the determinations called for in subparagraphs (A) through (F) of paragraph (2) of subsection (c) of this Code section, the court shall review the whole record or such portions of the record as may be cited by any party; and due account shall be taken of the rule of prejudicial error.
The reviewing court may also grant such further relief either legal or equitable, or both, as the interest of the public and the aggrieved parties in such proceedings shall require.

(Code 1933, § 56-227, enacted by Ga. L. 1960, p. 289, § 1.)

JUDICIAL DECISIONS

This section presents a broader scope for judicial inquiry on review than in most appeals from fact-finding bodies (e.g., those from the State Board of Workers' Compensation). Allstate Ins. Co. v. Bentley, 122 Ga. App. 738, 178 S.E.2d 700 (1970), modified, 227 Ga. 708, 182 S.E.2d 770 (1971).

Reviewing court is limited to pleadings and record made below.

- Under paragraph (2) of subsection (a) of this section, the superior court in reviewing the merits of a ruling of the commissioner is limited to the pleadings and the record made before the Commissioner. Caldwell v. Insurance Co. of N. Am., 235 Ga. 141, 218 S.E.2d 754 (1975).

Decision must be based on whole record.

- A reviewing court's decision must be based on the record as a whole and not simply on those parts of it regarded as favorable to the commissioner's conclusion. Allstate Ins. Co. v. Bentley, 122 Ga. App. 738, 178 S.E.2d 700 (1970), modified, 227 Ga. 708, 182 S.E.2d 770 (1971).

It is the court's duty, when reviewing proceedings held before the Commissioner of Insurance, to consider evidence in the record that is favorable as well as that which is unfavorable to the commissioner's decision and then determine whether the decision is, in light of the whole record, supported by substantial evidence, and if it is not, it should be reversed. Allstate Ins. Co. v. Bentley, 122 Ga. App. 738, 178 S.E.2d 700 (1970), modified, 227 Ga. 708, 182 S.E.2d 770 (1971).

Findings not supported by substantial evidence in whole record are not binding.

- Findings of fact arbitrarily, capriciously, or indifferently drawn without substantial evidence supporting them in the record as a whole are not binding on reviewing courts. Allstate Ins. Co. v. Bentley, 122 Ga. App. 738, 178 S.E.2d 700 (1970), modified, 227 Ga. 708, 182 S.E.2d 770 (1971).

Finding reasonable competition did not exist.

- To authorize the Commissioner's conclusion of law that an insurer's rates were excessive because a reasonable degree of competition did not exist in the area with respect to the classification to which the rates were applicable, the evidence must substantially support the principle that the insurer was not reasonably competitive with other companies collectively. Allstate Ins. Co. v. Bentley, 122 Ga. App. 738, 178 S.E.2d 700 (1970), modified, 227 Ga. 708, 182 S.E.2d 770 (1971).

Cited in National Council on Comp. Ins. v. Caldwell, 154 Ga. App. 528, 268 S.E.2d 793 (1980).

Syfert Injury Law Firm

2018 Georgia Code 33-2-28 | Car Wreck Lawyer