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Utah Chiropractic Assoc. Inc. v. Equitable Life Assurance

LEXSEE 579 p.2d 1327

UTAH CHIROPRACTIC ASSOCIATION, INC. Plaintiff and Appellant,
v. EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES and
Deseret Mutual Benefit Association, Defendants and
Respondents

No. 15345

Supreme Court of Utah

579 P.2d 1327; 1978 Utah LEXIS 1308

May 4, 1978, Filed

COUNSEL:
[**1]

Daniel L. Berman, Gordon Strachan, Patricia W. Christensen for Plaintiff and
Appellant.

F. Burton Howard for Equitable Life.

Robert M. Dyer, David A. Westerby for Desert Mutual.

Robert B. Hansen, William G. Gibbs for State Insurance Dept.

JUDGES:
Maughan, Justice, wrote the opinion. We concur: J. Allan Crocket, Justice, D.
Frank Wilkins, Justice, Gordon R. Hall, Justice. Ellett, Chief Justice:
dissenting.

OPINIONBY:
MAUGHAN

OPINION:

[*1328] Plaintiff, Utah Chiropractic Association, Inc., appeals from an
order of the district court dismissing plaintiff's appeal from a decision of the
Insurance Commissioner. The district court ruled that since plaintiff failed to
file its petition for review within one month of the Commissioner's decision,
the court was without jurisdiction to entertain the appeal. The sole question
before this court is, to what extent do the Utah Rules of Civil Procedure govern
the timeliness of appeals from the Insurance Commissioner's decisions to the
District Court of Salt Lake County? We reverse, and hold plaintiff filed its
petition for review within the time allowed by the rules. Costs to plaintiff.
All statutory references are to Utah Code Annotated, 1953. [**2]

On April 30, 1976 plaintiff requested the Commissioner of Insurance to
investigate alleged violations of Utah's Insurance Equality Law, section
31-27-24, by the defendants, the Equitable Life Assurance Society of the United
States and Deseret Mutual Benefit Association. Hearings were scheduled and held
December 21 and 22, 1976, but the Commissioner did not sign his findings and
order, which rejected plaintiff's claims of discrimination, until April 25,
1977. That same day the Commissioner mailed the order to plaintiff's attorneys,
PAGE 2
579 P.2d 1327, *1328; 1978 Utah LEXIS 1308, **2

who received it on April 26. Desiring a review of the issues by the district
court, plaintiff appealed to the Salt Lake County District Court pursuant to
section 31-4-9, filing its petition there on May 27, 1977.

Defendants moved the court to dismiss the appeal, asserting that under rules
81 and 73 of the Utah Rules of Civil Procedure, plaintiff had failed to file its
appeal within one month and that the district court therefore had no
jurisdiction. With this assertion the district court agreed, and entered an
order dated July 8, 1977, dismissing the appeal.

Sections 31-4-9 through 31-4-11 explain the manner in which an appeal from
the Insurance Commissioner's [**3] decision is taken. Omitted from these
sections is a limit on the time one can take to comply with the appeal process.
We agree with the district court that the Rules of Civil Procedure supplement
the statute and provide a one month limit. Rule 81(d), adopted by this court on
January 20, 1972, provides:

These rules shall apply to the practice and procedure in appealing from or
obtaining a review of any order, ruling or other action of an administrative
board or agency, except insofar as the specific statutory procedure in
connection with any such appeal or review is in conflict or inconsistent with
these rules.

Although the Insurance Code specifically outlines procedures governing
appeals from the Insurance Commissioner's decisions, there is nothing therein
which is inconsistent or in conflict with the application of the Rules of Civil
Procedure which provide for a limit on the time to appeal. In National
Advertising Co. v. Utah State Road Commission, n1 [*1329] we stated the time
limit on appeals in the Rules of Civil Procedure applied to a review of the Road
Commission, although the Commission had formulated its own rule on timeliness.
Rule 81(d) makes it clear [**4] the one month time limit for appeals in Rule 73
applies to appeals from the Insurance Commissioner's decisions, since the
statutory scheme fails to provide for any limit.

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n1 26 Utah 2d 132, 486 P.2d 383 (1971).

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The parties disagree on which part, if any, of Rule 73 shall apply to this
situation. Sections (a) through (g) deal with appeals to the Supreme Court from
the district court, while sections (h) through (m) discuss appeals to the
district court from the city or justice court. The difficulty with these
sections is that neither specifically applies to an appeal from the Insurance
Commissioner, who makes no "entry" of his decision in a register of actions or
judgment docket. It is helpful to look at section 31-2-10 of the Insurance
Code, which states that an order of notice of the Insurance Commissioner should
be given "by delivery to the person to be ordered or notified, or by mailing it
postage prepaid and registered with return receipt requested . . . ." In
connection with this, we note Rule 6 (e) of [**5] the Rules of Civil Procedure:

Whenever a party has the right or is required to do some act or take some
proceedings within a prescribed period after the service of a notice or other
paper upon him and the notice or paper is served upon him by mail, 3 days shall
PAGE 3
579 P.2d 1327, *1329; 1978 Utah LEXIS 1308, **5

be added to the prescribed period.

Pursuant to Rule 81 (d), Rule 6 (e) applies to an order of the Insurance
Commissioner when it is mailed to the party to be ordered, as in this case. The
"prescribed period" here is one month from the date the order was mailed by the
Commissioner, since there is no "entry" in a judgment docket which could begin
the time period for appeal. Therefore, the plaintiff had one month and three
days from the date the order was mailed, or April 25, 1976, within which to file
its petition in the district court. By filing on May 27, the plaintiff timely
brought its appeal.

WE CONCUR: J. Allan Crockett, Justice, D. Frank Wilkins, Justice, Gordon R.
Hall, Justice.

DISSENTBY:
ELLETT

DISSENT:

ELLETT, Chief Justice: (Dissenting)

I wish to state my reasons for not agreeing with the prevailing opinion. Our
statute n1 requires the hearing commissioner to make an order and to give a copy
thereof to [**6] all parties. The next section provides for the taking of an
appeal to the district court.

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n1 U.C.A. 1953, Sec. 31-4-9.

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The only thing which the hearing commissioner is required to do is to give a
copy of the order to all parties. When he gives a copy to a person the matter
is then final and the person receiving the copy must appeal therefrom the same
as is provided for in Rule 73(a), U.R.C.P. n2

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n2 Rule 81 (d), U.R.C.P.

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Rule 6 (e), U.R.C.P. relied upon in the main opinion has no bearing on this
case. There is no requirement for a party to act prior to the receipt of a copy
of the order. Whether the order is given by hand or by mail is immaterial. It
is the receipt of the copy which constitutes the finality of the proceedings;
and it is from that date that the time for an appeal should be measured.

In the instant matter [**7] the appellant received the notice on April 26.
Its appeal then had to be filed with the district court within one month
thereafter. It was not required to appeal or do anything else from the date
when the order was made or when it was mailed. Therefore the three days extra
time under Rule 6 (e), U.R.C.P. is not involved. The only question is what is
meant by "within one month."
PAGE 4
579 P.2d 1327, *1329; 1978 Utah LEXIS 1308, **7

Our Court clearly stated the correct law in the case of In re Lynch's Estate
n3 as follows:

[*1330] One month is a calendar month not a lunar month of 28 days, nor is
it necessarily 30 days. Such a month commences at the beginning of the day of
the month on which it starts and ends at the expiration of the day before the
same day of the next month. Thus a month which starts with the beginning of the
first day of a calendar month would end at the end of the last day of such
month, and not at the last end of the first day of the next month. If the month
in question commenced on a day other than the first day of such month, such as
at the beginning of the 23rd day of such month, it would end at the expiration
of the 22nd day of the next month and not at the expiration of the 23rd day of
the [**8] next month, which would be the beginning of another month. In the
present case we exclude from our calculation the day of the act or event after
which the designated period of time begins to run, which is November 22, the day
on which the motion was overruled, and start counting from the beginning of the
23rd day of that month; from that time one month would end at the expiration of
the 22nd day of December, or just before the 23rd commenced, which marked the
beginning of another month.

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n3 123 Utah 57, 254 P.2d 454 (1953).

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This was a per curiam opinion and has never been overruled. It was followed
in Anderson v. Anderson n4 wherein an appeal was taken on March 24 from a
judgment entered February 23. This Court held: "It is thus clear that this
appeal was not taken in time, that the failure to do so is jurisdictional and
noticeable by the court sua sponte. The appeal is dismissed with costs to the
respondent."

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n4 3 Utah 2d 277, 282 P.2d 845 (1955).

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[**9]

In the instant matter the appellant received the order on April 26. It filed
the appeal on May 27 following. By excluding April 26, the day the order was
received, the time for calculating the appeal time would commence on April 27th.
On May 26th the month would have expired, and the 27th day of May would be the
first day of the second month. That would not be within one month.

In my opinion the appeal was not timely filed and should have been dismissed.

I would affirm the ruling of the trial court and award costs to the
respondent.

   

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