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ead the applicable statute as saying that the department's regulation of
HMOs is for the benefit and protection of the public. Thus, the court found no
special duty and, therefore, no private right of action.
McManamon v. Ohio Dep’t of Ins., 2008 Ohio LEXIS 6958 (Ct. App. 2008). The
plaintiff insurance agent sued the Ohio Department of Insurance, claiming that
the Department fraudulently led an insurer into liquidation. The plaintiff
brought the suit in common pleas court. The court explained that the Ohio
Department of Insurance “wears two different hats in a rehabilitation
proceeding that ultimately results in liquidation.” First, until the Ohio
Department of Insurance becomes the liquidator through a liquidation order, it
is a regulator, subject to suit “under the usual principles that apply to actions
against the state.” The plaintiff could not hold the Ohio Department of
Insurance liable for fraud in this capacity because the plaintiff brought the
action in common pleas court, not the Court of Claims as Ohio law requires for
actions against the state. Second, after a liquidation order is entered, the Ohio
Department of Insurance becomes a liquidator and enjoys the protection of
Ohio Revised Code Chapter 3903. Among other things, that Chapter bars civil
actions against the liquidator. No exception exists to this bar for actions based
on a theory of fraud, so the plaintiff’s suit failed in this respect as well.
Wallace v. Ohio Dep’t of Commerce, 96 Ohio St. 3d 266 (Ohio 2002). Wallace
explicitly overrules Anderson v. Ohio Dep’t of Ins. by holding that the public duty
rule is not applicable in Ohio. In Anderson v. Ohio Dep’t of Ins., the Department
of Insurance was held not liable to the HMO due to the application of the public
duty rule. However, following the Wallace decision, the court held the
Superintendent of Insurance—and the Department—had a legal duty identical
to that which would be applicable if the defendant were a private individual or
entity. The public duty rule no longer shields the actions of Ohio public officials
from liability.
Oklahoma
State ex rel. Weatherford v. Senior Sec. Life Ins. Co., 1996 Okla. 92, 916 P.2d
288 (Ct. App. 1996). Following the appointment of a receiver for an
insolvent life insurance company, the company’s management filed an
application for payment of attorney fees that it incurred in resisting the
Insurance Commissioner’s application for appointment of receiver as cost of
receivership estate. The court held that attorney fees incurred by insolvent
insurer’s management did not have to be paid out of the receivership estate
given the lack of evidence that the management acted in good faith in
opposing the Commissioner’s application.
Pennsylvania Greenfield v. Pennsylvania Insurance Guaranty Association, 256 Pa. Super. 136,
389 A.2d 638 (1978). A law firm which provided legal services to an insurance
company which was later liquidated could make a claim against the insurance
commissioner, as receiver, but could not recover from the Pennsylvania
guaranty fund.
Safeguard Mutual Ins. Co. v. Commonwealth of Pa., 372 F. Supp. 939 (E.D. Pa.
1974). An insurer brought suit against the insurance commissioner claiming
that the commissioner was using the insurance code to circumvent a state
court order vacating the commissioner's suspension of the insurer from
transacting business in the state. It was held that the remedy for illegal or
malicious actions by the insurance commissioner was in the state courts.
Texas C.M. Clark Insurance Agency, Inc. v. Reed, 390 F. Supp. 1056 (S.D. Tex. 1975).
Since the chief counsel to Pennsylvania's insurance commissioner was