Opinion
No. CV 10 6003402S
September 28, 2011
MEMORANDUM OF DECISION
This is an appeal by the plaintiffs, Augustine Ofili and the Augustine Insurance Agency (Ofili), from a December 29, 2009 final decision of the Connecticut insurance department (the department). The final decision adopted a proposed final decision of a hearing officer of the department held pursuant to § 38a-702k revoking Ofili's insurance producer license and ordering him to pay restitution.
The name "Ofili" is meant by the court to include both Ofili's individual license and the license of the Augustine Agency.
Since Ofili's license has been revoked and restitution ordered, he is aggrieved for purposes of § 4-183(a).
The record shows that after notice to Ofili of a seven-count complaint against him and a subsequent hearing, a department hearing officer issued a proposed final decision that stated in relevant part as follows:
1. Mr. Ofili is licensed as a resident producer, number 000626357, by the Department. Mr. Ofili is a license applicant for the Augustine Agency, an organization licensed by the Department as an insurer producer, number 00231870. Ofili has been in the insurance business since 1986.
2. Mr. Ofili had been previously fined $2,000 on February 16, 2005 by the Department.
3. Mr. Ofili collected $2,975.75 from Yohanny and Juan Pena of Worcester, Massachusetts (Mr. Mrs. Pena) to provide insurance for them for a multifamily property at 693-697 Connecticut Ave., Bridgeport in a transaction posted to their credit card account November 8, 2007.
4. Mrs. Pena also provided a surplus lines affidavit on November 8, 2007 for Mr. Ofili to obtain surplus lines insurance for the property. Subsequently, a fire heavily damaged Mr. Mrs. Pena's property on December 8, 2007, and when they told Mr. Ofili about the fire, he told them the insurance had not been placed. By check dated December 10, 2007, Respondents wrote a check for $2,911 for the Pena insurance to Connecticut Underwriters, the check was returned by the bank for insufficient funds, and a notice of cancellation effective January 28, 2008 for nonpayment was sent. Subsequently, an Augustine Agency check in the amount of $2,936 was sent by Respondents to Connecticut Underwriters, the check cleared January 30, 2008, and the cancelled policy was reinstated as of that date. The policy had been in effect from December 10, 2007, after the date of the fire, until the cancellation became effective January 28, 2008, and then was reinstated January 30, 2008.
5. On December 10, 2009, Mr. Ofili requested that Connecticut Underwriters bind insurance coverage for Mr. Mrs. Pena's property, and on December 11, 2007, Mr. Ofili requested that the coverage be effective November 1, 2007. By letter dated December 19, 2007, Connecticut Underwriters indicated it would only bind as of the date of request and could not back date the coverage.
6. The building owned by Mr. Mrs. Pena sustained $74,462 in damages, which has not been recovered from any insurance company or from the Respondents. They had the fire damage repaired at their own expense.
7. By fax dated December 12, 2007, Respondents attempted to purchase errors and omissions insurance coverage backdated to October 19, 2007, but the underwriter declined to back date the policy. An errors and omissions policy was issued by United States Liability Insurance Group ("U.S. Liability") to the Augustine Agency for the period December 12, 2007 through December 12, 2008. By letter dated August 20, 2008, U.S. Liability declined to defend or indemnify the Augustine Agency against Mr. Mrs. Pena's claim on the errors and omissions policy, and declined to make any payments to Mr. Mrs. Pena because the failure to obtain fire insurance predated the policy's inception, and it appeared that the Augustine Agency was aware of the lack of coverage for the Pena property at the time the application was made. Ofili testified he attempted to backdate the policy on the advice of an attorney.
8. Mr. Ofili stated he thought $2,900 was a high premium for the property, and that for a more typical premium of $1,800 in that area, significant repairs to the property would need to be made. He stated that was a reason he did not want to send the payments off, although he admitted to processing the credit card payment. He testified he advised her to keep her current policy while he looked for lower priced coverage, but testified at one point that she told him that the Connecticut Fair Plan, which insured the property, would not renew it. He testified later that he did not know when the insurance expired. Ofili testified that Mrs. Pena seemed very anxious to obtain the insurance coverage. Mrs. Pena testified she was shopping for lower priced insurance.
9. Mr. Ofili testified that an issue with the Pena property was that it had structural issues, and that repairs would have been required. The Connecticut Fair Plan by letter dated October 26, 2007, had informed Mr. Mrs. Pena and the Augustine Agency that it was declining to arrange for insurance coverage because it failed to meet underwriting standards. Among the deficiencies cited were the basement needed working smoke detectors, a smoke detector was needed in a third floor apartment, a third floor apartment and hallways on every floor had chirping smoke detectors, there was a missing outlet cover and open junction boxes with exposed wires in the basement, missing space covers in a circuit breaker box, rotted floor boards on the second and third floor porches and two gas grills stored on the second floor rear porch.
10. Mr. Ofili collected $1,700 in a check dated April 26, 2007 from an attorney representing Anne-Marie Guilloux to provide insurance for the property she had just purchased and was about to close on at 28 Cedar St., New Haven, and provided an Accord Form dated April 26, 2007 showing evidence of property insurance with Colony Insurance. Mr. Ofili did not in fact obtain an insurance policy for the Guilloux property. The Department ascertained that Colony Insurance had not appointed either Mr. Ofili or the Augustine Agency, and that Colony had no contact with the Augustine Agency. The purported policy with Colony was never applied for or issued.
11. Respondents notified Mrs. Guilloux by letter dated April 20, 2007 that Respondents were unable to place the policy with Colony Insurance, and the property needed to be inspected in order to issue a policy. Mr. Ofili testified he also attempted to contact Mrs. Guilloux in person and by telephone. Mrs. Guilloux testified she did not remember if she received the letter, and that when she works as a nursing assistant she frequently is away from home.
12. A fire damaged one room of Mrs. Guilloux's property in New Haven on April 29, 2008, and firefighters opened up the ceiling in suppressing the fire. She has not received an insurance settlement following that loss or restitution from Mr. Ofili.
13. Mr. Ofili brought a contractor and offered to have the contractor fix Mrs. Guilloux's property damage, but, apparently referring to details of what he offered to fix, she testified he would not change those plans to her satisfaction, and she refused the offer to allow the contractor Mr. Ofili brought to fix the property. Ofili testified he stopped talking to Mrs. Guilloux about repairing the fire damage after her daughter became involved and "was trying to demand money that is ridiculous," and later termed the offers on behalf of Mrs. Guilloux as "blackmail." Levi's Home Improvement, the contractor Ofili brought to the Guilloux property in his offer to repair the damage, submitted an estimate of $3,595 to repair the fire damage.
14. The Connecticut FAIR Plan by notice dated May 20, 2008 indicated an inspector had tried several times to set up an appointment for an interior inspection to no avail, and that her file would be closed.
15. The Augustine Agency placed an advertisement in the Connecticut Post in May 2009 for a "Mother's Day Promotion" and advertised, "Call Augustine Insurance Agency and mention this Ad. You get Forty Dollars ($40) off your down payment on Auto and Home Insurance." The Connecticut Post did not have Mr. Ofili sign off on the proof, and he testified he did not see the advertisement and it did not generate any business. He testified he intended to waive service fees, and not rebate premium.
16. Mr. Ofili testified that he had to lay off two employees, and the service work became heavy with "a stack" of pending files.
17. The record includes seven letters that reflect positively on Mr. Ofili. Adekanai Ajobo and Ken Nicholson testified favorably about Mr. Ofili.
18. The first count was a recitation of the past violations contained in Docket No. MC 05-10, a stipulated fine in which Mr. Ofili was fined $2,000 for violations of Conn. Gen. Stat. §§ 38a-702k, 38a-707, 38a-712, 38a-769 and 38a-815; and administrative notice is taken of that fine and those violations. The first count does not allege a current violation of the law.
19. Based on the above subordinate findings of fact as to the second count, the undersigned finds the Respondents have violated: (a) Conn. Gen. Stat. § 38a-702k(a)(4) in that Respondents Ofili and Augustine Agency improperly withheld and misappropriated money in connection with an insurance collection by collecting $2,975.75 from Mr. Mrs. Pena and failing to place insurance coverage, and initially placed such coverage with an Augustine Agency check returned for insufficient funds; (b) Conn. Gen. Stat. § 38a-702k(a)(8) by that same conduct in that Respondent Ofili demonstrated incompetence, untrustworthiness and financial irresponsibility in the conduct of business in this state; (c) Conn. Gen. Stat. § 38a-712 by the same conduct in that Respondents Ofili and the Augustine Agency failed to remit premiums to the proper company; and (d) Conn. Gen. Stat. § 38a-769(c) and (d) by that same conduct in that Respondents Ofili and the Augustine Agency have failed to maintain the licensing standards of being financially responsible and trustworthy.
20. Based on the above subordinate findings of fact as to the third count, the undersigned finds that Respondents have violated: (a) Conn. Gen. Stat. § 38-702k(a)(4) in that Respondents Ofili and Augustine Agency improperly withheld and misappropriated money in connection with an insurance collection by collecting $1,700 from an attorney on behalf of Mrs. Guilloux and failing to place insurance coverage; (b) Conn. Gen. Stat. § 38-702k(a)(8) by that same conduct in that Respondent Ofili demonstrated incompetence, untrustworthiness and financial irresponsibility in the conduct of business in this state; (c) Conn. Gen. Stat. § 38-712 by the same conduct in that Respondents Ofili and the Augustine Agency failed to remit premiums to the proper company; and (d) Conn. Gen. Stat. § 38-769(c) and (d) by that same conduct in that Respondents Ofili and the Augustine Agency have failed to maintain the licensing standards of being financially responsible and trustworthy.
21. Based on the above subordinate findings of fact as to the fourth count, the undersigned finds that Respondent Ofili has violated: (a) Conn. Gen. Stat. § 38-702k(a)(5) in that he intentionally misrepresented the terms of a proposed insurance policy by providing an Acord Form dated April 26, 2007 showing evidence of property insurance for Mrs. Guilloux with Colony Insurance when in fact he had not obtained such insurance and was not appointed by and did not have a contract with Colony Insurance; (b) Conn. Gen. Stat. § 38a-702k(a)(8) by the same conduct in that Respondent Ofili has demonstrated incompetence, untrustworthiness and financial irresponsibility in the conduct of business in this state; and (3) Conn. Gen. Stat. § 38a-769(d) by that same conduct in that Respondent Ofili has failed to maintain the licensing standards of being financially responsible and trustworthy.
22. Based on the above subordinate facts as to the fifth count, the undersigned finds that Respondent Ofili has violated (a) Conn. Gen. Stat. § 38a-702k(a)(8) in that he used fraudulent and dishonest practices and demonstrated incompetence, untrustworthiness and financial irresponsibility by attempting to backdate the inception date of his errors and omissions coverage to a period prior to the time when he failed to procure fire insurance coverage to Mr. Mrs. Pena with knowledge that Mr. Mrs. Pena had sustained a serious fire loss; and (b) Conn. Gen. Stat. § 38a-769(d) by that same conduct in that Respondents have failed to maintain the licensing standards of being trustworthy and financially responsible.
23. Based on the above subordinate findings of fact as to the seventh count, the undersigned finds Respondents Ofili and the Augustine Agency violated Conn. Gen. Stat. § 38a-825 in that Respondents offered to pay as an inducement to insurance $40 off of down payments on auto and home insurance, which constituted an offer for a rebate, valuable consideration and an inducement to insurance not specified in the insurance policy. (Return of Record (ROR) pp. 3-12.)
Based upon these findings of fact, the hearing officer recommended the following orders that were adopted by the department's commissioner on December 23, 2009:
1. All insurance licenses issued to Augustine C. Ofili and Augustine Insurance Agency are hereby revoked 15 days from the date of this order;
2. Respondents Augustine C. Ofili and Augustine Insurance Agency are ordered to make restitution pursuant to Conn. Gen. Stat. §§ 38a-17 and 38a-8(a) in the amount of $74,462 to Yohanny and Juan Pena of Worchester, MA no later than 30 days from the date of this order; and
3. Respondents Augustine C. Ofili and Augustine Insurance Agency be ordered to make restitution pursuant to Conn. Gen. Stat. §§ 38a-17 and 38a-8(a) to the extent necessary for damage from a fire occurring April 29, 2008 at property at 28 Cedar St, New Haven CT, owned by Anne-Marie Guilloux of New Haven, CT, to be repaired with materials of like, kind and quality no later than 30 days from the amount such damages is established. (ROR, commissioner's order approving proposed final decision, p. 1.)
This administrative appeal followed. At oral argument, the court noted that the restitution amount due to Guilloux was not found by the hearing officer. It directed the department to conduct further proceedings to amend order #3 to state the exact restitution figure. The department made this finding ($9,700) on May 11, 2011, and the appeal was returned to this court for further argument and decision.
The standard of review for an administrative appeal "requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and . . . provide[s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . [A]s to questions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Citation omitted; internal quotation marks omitted.) Blinkoff v. Commission on Human Rights Opportunities, 129 Conn.App. 714, 720-21, 20 A.3d 1272 (2011).
Further, "it is well established that an administrative agency's decision under the Uniform Adinmistrative Procedure Act, General Statutes § 4-166 et seq., with respect to the construction of a statute is not entitled to special deference when that determination `has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency's time-tested interpretation . . .' [Where the judicial scrutiny or an agency's time-tested interpretation does not apply], `[w]ell settled principles of statutory interpretation govern our review . . . Because statutory interpretation is a question of law, our review is de novo . . ."When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Citation omitted; internal quotation marks omitted.) Commissioner of Public Safety v. Freedom of Information Commission, 301 Conn. 323, 336-38, 21 A.3d 737 (2011); McCoy v. Commissioner of Public Safety, 300 Conn. 144, 150-51, 12 A.3d 948 (2011).
The initial issue presented by Ofili is whether there was substantial evidence to support the department's first sanction, the revocation of Ofili's licenses. The department found violations in Ofili's business relationships with the Penas and with Guilloux. The department also found a violation in his offering rebates on insurance premiums in a newspaper advertisement.
With regard to the Penas, Ofili claims that "Mrs. Pena had [requested Ofili] to shop for insurance on a property that was already insured . . . [Mrs. Pena] never told [Ofili] the property had become uninsured and that when they finally and unequivocally instructed [Ofili] to procure a particular policy, [Ofili] did so promptly." (Ofili's brief at p. 4.)
The department met the substantial evidence standard, however, as it demonstrated that Ofili violated § 38a-702k(a)(4) by improperly misappropriating money received in the course of his business and § 38a-712(b) by failing to remit a premium to the proper company. Ofili collected $2,975 from the Penas via a credit card and then when the fire occurred on December 8, 2007, they were told by Ofili that there was no insurance in place. (Department's brief, pp. 3-4, 6; ROR, pp. 198-206, 446-47, 530-34.) That Ofili procured the insurance after the fire does not absolve him from liability.
In addition, the department proved by substantial evidence that Ofili violated § 38a-702k(a)(8) in that he evidenced "incompetence, untrustworthiness or financial irresponsibility." He attempted to procure insurance for the Penas after the fire damaged their property, sending out a check that was returned for insufficient funds. He also sought to backdate the coverage to a date before the fire occurred. Similarly he tried to backdate his own errors and omissions policy to a time before taking the Penas' premium. (Department's brief, pp. 6-7; ROR, pp. 43-44, 137-40, 248-49, 448-59, 468-69.) Mrs. Pena stated that she asked Ofili to shop around for insurance when she first contacted him in August 2007; however, by November 2007, Ofili had found a suitable policy and at that point Mrs. Pena paid the premium that he requested. The hearing officer was entitled to believe Mrs. Pena and to discount the testimony of Ofili. See Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 831, 955 A.2d 15 (2008); Colucci v. Insurance Department, Superior Court, judicial district of Hartford/New Britain, Docket No. CV 95-0552197 (October 7, 1996, Maloney, J.), aff'd per curiam, 45 Conn.App. 369, 696 A.2d 1003 (1997).
The court next considers the Guilloux incident. Ofili claims that the Colony Insurance Company would not issue the policy until Guilloux had had her property inspected. Ofili contends that there was no violation of § 38a-702k(a)(4) because her funds were not misappropriated; she did not ask that the premium be returned to her. Ofili asserts that there was no violation of § 38a-702k(8) because he provided evidence of insurance that he thought that he was authorized to issue. Further, he acted immediately to advise Guilloux that she was not eligible for insurance without an inspection of the property, a requirement that she did not show an interest in meeting. (Ofili's brief, pp. 18-19.)
The department, however, satisfied the substantial evidence standard for both subsections (4) and (5). Ofili did not remit a premium to Colony and misrepresented the terms of an actual or proposed insurance contract. He collected $1,700 from Guilloux by a check from her attorney and issued a form evidencing coverage from Colony, but did not in fact obtain a policy for Guilloux. (Department's brief, p. 5; ROR, pp. 296-98, 345-46, 550, 556.) Ofili had not been appointed to act on Colony's behalf and had no contractual relationship with Colony. (Department's brief, p. 7; ROR, pp. 320-22, 544-50.) He also evidenced financial irresponsibility in violation of § 38a-702k(a)(8) by supplying a form to the real estate closing without the authority to do so.
Finally, the placement of the rebate offer stating that one could call Ofili's agency and receive a forty dollar discount violated § 38a-825. Ofili claims that this offer was similar to a discount for purchasing both auto and homeowner's insurance. However, the department properly viewed this advertisement as violating the clear language of the statute, disallowing Ofili's offer of "any valuable consideration or inducement not specified in the policy of insurance."
The remaining issues raised by Ofili relate to the second and third orders of the department and the supplemental order that require Ofili to make restitution. Ofili contends first that the department's commissioner had no legal authority to issue these orders and secondly that the monetary amounts of restitution were based on hearsay and were not factually accurate. The court agrees that the department had no authority to issue the orders and therefore does not reach Ofili's factual contentions.
This issue is not the same as that considered in Ursini v. Goldman, CT Page 20716 118 Conn. 554, 173 A. 789 (1934) where the Supreme Court held that an insurance agent's negligence may lead to an award of damages "for loss properly attributable to his default." Id., 559. The issue before this court is whether the department through its commissioner had the legal authority to order restitution along with other sanctions that might be imposed on the insurance producer. Similarly, the issue in Employers Reinsurance Corporation v. Muro, 86 Conn.App. 551, 861 A.2d 1216 (2004), cert. denied, 273 Conn. 907, 868 A.2d 747 (2005) was whether the defendant insurance agent, if found negligent, would be covered by his professional liability insurer. The Appellate Court held that this was not properly resolved on a motion for summary judgment.
The department argues that General Statutes § 38a-17 authorizes the insurance commissioner to issue the relief granted in this matter. Specifically, the department contends that the authorization provided by § 38a-17 applies to the regulation of insurance companies, which are broadly defined by General Statutes § 38a-1(11) as "any person or combination of persons doing any kind or form of insurance business . . ." The department argues that the term "insurance business" applies to insurance producers and points to a number of statutory provisions that purportedly refer to producers as engaging in insurance business. In particular, the department contends that §§ 38a-702j(a), 38a-702k(a)(4), 38a-815, and 38a-816(8) demonstrate that the term insurance business includes the professional activities of insurance producers, thus authorizing the commissioner to compensate their clients under § 38a-17. Moreover, the department argues that General Statutes § 38a-8(a) provides the commissioner with broad remedial authority. In light of the department's position, the court turns to the principles of statutory interpretation as stated above. There is no ambiguity and the statute under which the department proceeded, § 38a-702k, is plain in meaning, nor does the context of § 38a-702k require the use of extratextual materials.
General Statutes § 38a-8(a) provides: "The commissioner shall see that all laws respecting insurance companies and health care centers are faithfully executed and shall administer and enforce the provisions of this title. The commissioner has all powers specifically granted, and all further powers that are reasonable and necessary to enable the commissioner to protect the public interest in accordance with the duties imposed by this title. The commissioner shall pay to the Treasurer all the fees which he receives. The commissioner may administer oaths in the discharge of his duties."
It is apparent that the department was authorized to revoke the plaintiff's license pursuant to General Statutes § 38a-702k(a), which provides that the commissioner "may place on probation, suspend, revoke or refuse to issue or renew an insurance producer's license or may levy a civil penalty in accordance with the provisions of this title, or may take any combination of such actions . . ." Furthermore, it is clear that the commissioner is authorized to impose a civil penalty on the plaintiff. See General Statutes § 38a-702k(a). Nonetheless, a plain reading of the statutes relied on by the department shows that an award of restitution for out-of-pocket losses was unauthorized.
Section 38a-774, allowing the commissioner of the department to revoke any licensee of the department for cause, also allows the imposing of a fine, but does not include restitution as an allowable sanction. Section 38a-817(b)(3) allows restitution, but in this case only to the extent of premiums paid.
Section 38a-17 provides in relevant part: "If, in the opinion of the commissioner, any insurance company . . . is doing business in an illegal or improper manner . . . the commissioner may order it to discontinue such illegal or improper method of doing business and may order it to adjust and pay its losses and obligations as they become due." Section 38a-1(11) defines both an "insurer" and "insurance company" as including any person or combination of persons doing any kind or form of insurance business . . ." The term insurance is defined by § 38a-1(10), which provides in relevant part: "`Insurance' means any agreement to pay a sum of money, provide services or any other thing of value on the happening of a particular event or contingency or to provide indemnity for loss in respect to a specified subject by specified perils in return for a consideration. In any contract of insurance, an insured shall have an interest which is subject to a risk of loss through destruction or impairment of that interest, which risk is assumed by the insurer and such assumption shall be part of a general scheme to distribute losses among a large group of persons bearing similar risks in return for a ratable contribution or other consideration."
"[T]he legislature defines insurance as the assumption of another's risk for profit." Doucette v. Pomes, 247 Conn. 442, 456, 724 A.2d 481 (1999). The department is correct in noting that other statutes within Title 38a refer to producers as participants in the business of insurance. Those statutes, however, generally distinguish producers from insurers and insurance companies. Producers may engage in the business of insurance, in that they facilitate insurance transactions; producers do not, however, assume an insured's risk.
The distinction between producer and insurer is underscored by the definitions set out at the outset of Chapter 701a, which covers insurance producers and agents. Producers, according to § 38a-702a(6), "sell, solicit or negotiate insurance." Insurers, on the other hand, are covered under the aforementioned general definition provided in § 38a-1. Moreover, licensure requirements provide another express distinction between insurer and producer. Section 38a-702b provides: "A person shall not sell, solicit or negotiate insurance in this state for any class or classes of insurance unless the person is licensed for that line of authority in accordance with sections 38a-702a to 38a-702r, inclusive." In contrast, § 38a-702c(a) provides in relevant part: "Nothing in sections 38a-702a to 38a-702r, inclusive, shall be construed to require an insurer to obtain an insurance producer license." It is apparent that the legislature did not intend to equate insurance producers with insurers or insurance companies. Accordingly, the department's argument must fail.
By § 38a-702a, these definitions are to govern "[a]s used in this chapter [701a] and chapter 702, unless the context or subject matter otherwise require."
Furthermore, even if extratextual materials are consulted, a number of additional considerations weigh against finding that the commissioner is authorized to fashion the relief granted in the present matter. First, the legislature has shown that it is capable of promulgating an express authorization when it intends to enable the relief of restitution. See, e.g., General Statutes § 14-64; Jim's Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 803, 942 A.2d 305 (2008) (noting power of commissioner to order restitution to an aggrieved customer pursuant to § 14-64); § 36b-27 (restitution remedy for violations by securities dealers); see also Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 205, 3 A.3d 56 (2010) (legislature knows how to convey its intent expressly); Windels v. Environmental Protection Commission, 284 Conn. 268, 299, 933 A.2d 256 (2007) (same).
Here, as noted, the insurance statutes provide no such authority as against an insurance producer. Second, the statutes of sister jurisdictions governing the conduct of insurance producers oftentimes provide express provisions authorizing an award of restitution. See, e.g, Colo. Rev. Stat § 10-2-801(1) (2010) ("The commissioner may place an insurance producer on probation; suspend, revoke, or refuse to issue, continue, or renew an insurance producer license; order restitution to be paid from an insurance producer; or assess a civil penalty . . ."); Me. Rev. Stat. tit. 24-A § 12-A(6) (2010) ("Restitution. The superintendent may order restitution for any insured or applicant for insurance injured by a violation for which a civil penalty may be assessed pursuant to this section"). Again, an express grant of authority to the commissioner authorizing the imposition of restitution on an insurance producer is conspicuously absent from our statutory scheme. See also McHugh v. Santa Monica Rent Control Board, 777 P.2d 91, 106 (Cal. 1989) (agency not authorized to order restitution without statutory provision); Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986) (restitution obligation imposed as part of a criminal fine is not dischargeable in bankruptcy, and is different from a restitution order to compensate a victim).
Thus the broad language of § 38a-8a giving the commissioner the power to "craft an appropriate remedy" would not extend to an order of restitution where such authority has no statutory basis. Nor is it relevant that the department has conditioned a restoration of an insurance producer's license on the payment of restitution.
In addition, even if the court were to construe the relief granted as authorized pursuant to the Connecticut Unfair Insurance Practices Act, General Statutes § 38a-816 et seq. ("CUIPA"), the present award exceeds the contemplated scope of that statute. Although CUIPA expressly authorizes an award of restitution, the plain language of that statute appears to limit such grant to the amount of any premiums illicitly retained, not the total value of losses incurred. See General Statutes § 38a-817(b)(3) ("the commissioner may order . . . restitution of any sums shown to have been obtained in violation of any of the provisions of said sections or any regulation implementing the provisions of said sections." [Emphasis added.]) Accordingly, the relief granted by the commissioner in the present matter exceeded the scope of his statutory authority
This is true to an even greater extent in regard to the department's argument relying on Chapter 698d, the Unauthorized Insurers Act, 38a-271 et seq. The General Assembly certainly could declare the receipt of a premium by a supposed insurance agent engaged in the insurance business illegal, and subject to restitution, the goal being to protect the public from fraud. This legislative intent does not transfer such that an insurance producer licensed by the department would be subject to a restitution order in the absence of statutory authority.
The court therefore dismisses the appeal to the extent that Ofili challenges the revocation of the licenses, but sustains the appeal due to an error of law to the extent that the department has ordered Ofili to make restitution to the complainants.