CALIFORNIA AUTOMOBILE ASSIGNED RISK PLAN v. Allstate Insurance Company and Allstate Indemnity Company, Intervenors.

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Court of Appeal, Second District, Division 7, California.

CALIFORNIA AUTOMOBILE ASSIGNED RISK PLAN, Petitioner/Plaintiff, and Respondent, v. Roxani GILLESPIE, Insurance Commissioner of the State of California, Respondent/Defendant and Appellant. Allstate Insurance Company and Allstate Indemnity Company, Intervenors.

No. B050033.

Decided: April 18, 1991

Rubinstein & Perry, Karl L. Rubinstein, Dana Carli Brooks and Melissa S. Kooistra, Los Angeles, for Roxani Gillespie, Insurance Commissioner, respondent/defendant and appellant. LeBoeuf, Lamb, Leiby and MacRae, James R. Woods, Sanford Kingsley and Thomas E. McDonald, San Francisco, for California Assigned Risk Plan, respondent. Sonnenschein, Nath & Rosenthal, William T. Barker, Jeffrey P. Lennard, Alan M. Posner, Darin W. Snyder, Brian E. Mahoney, Morrison & Foerster and Marc P. Fairman and Michael M. Carlson, San Francisco, for Allstate Ins. Co. and Allstate Indem. Co., intervenors.

FACTS AND PROCEEDINGS BELOW

This is an action for administrative mandamus to set aside a final decision by the commissioner of insurance denying petitioners' request for a 112 percent increase in assigned risk rates.   The petitioners are the California Automobile Assigned Risk Plan (CAARP), an organization of insurance companies formed to administer the state's assigned risk program, and Allstate Insurance Company (Allstate), an insurer participating in the assigned risk program.   Respondent is the Insurance Commissioner of the State of California (Commissioner).

Every insurer offering automobile liability insurance in California is required to participate in the state's assigned risk program.  (Ins.Code, §§ 11620, 11621.) 1  At the time of the proceedings below, insurers participating in the plan were authorized by statute to form their own organization to administer and operate the assigned risk program, subject to review by the Commissioner.  (§ 11623.)   Pursuant to this authorization, the insurers formed CAARP.   The duties of CAARP are set out in regulations adopted by the Department of Insurance.   Among these duties, the manager of CAARP is to prepare an annual report, from information submitted by participating insurers, setting forth the premiums earned and the losses incurred under policies issued pursuant to assignments under the program.  (Cal.Admin.Code, tit. 10, § 2492.3.)   Following submission of this report, CAARP's governing committee is required to review the program's rules and rates and “recommend to the commissioner such revision of the [rates] as may be indicated to the end that such rates and added surcharges shall be neither excessive, inadequate or unfairly discriminatory.”  (Id. at p. § 2421.10.)

 Rates for assigned risk policies are set by the Commissioner after notice and public hearings.  (§ 11620.)   Although it has no specific statutory or regulatory authority to do so, by tradition CAARP makes its rate recommendation in the form of an application to the Commissioner for a rate increase on behalf of its members.2  Section 11623 has since been amended, effective January 1, 1991, to require the Commissioner to administer and operate the assigned risk plan, assisted by a 15–member advisory committee appointed by the Commissioner.   Eight of the advisory committee members are elected by the subscribing insurers, four members shall represent the public, and two shall represent producers (agents and brokers).   The final member is the Commissioner or his or her designee.  (Stats.1990, ch. 1132.)

In February 1989, following the annual review of its rate structure, CAARP filed with the Commissioner an application for a 112 percent increase in assigned risk rates.   Hearings on the application were held in August and October 1989 before an administrative law judge.   The Department of Insurance, consumers and CAARP were allowed to present evidence and argument on the proposed 112 percent rate increase.   After hearing the testimony and argument of the parties, the administrative law judge issued a proposed decision approving the rate request in full.   This decision was based on the ALJ's findings:  “[t]he accuracy of the historical data used to develop the proposed rates was unquestioned, as were the actuarial projections of future costs” and “[c]onfined to an evaluation of the ‘numbers' presented, [CAARP] has clearly met its burden in establishing by uncontradicted documentary evidence and testimony, that current [assigned risk] rates will be inadequate to meet the reasonably projected costs of providing assigned risk coverage.”   The ALJ concluded, “the record in this matter supports the determination that the proposed average rate increase of 112.3 percent will allow ․ participating insurers the opportunity to recover the estimated costs of providing coverage.”

The Commissioner rejected the proposed decision granting the rate increase.   The Commissioner did not dispute the evidence of existing losses under the program nor the conclusion a 112 percent increase in rates was necessary for the insurers to break even on assigned risk policies.   Instead, the Commissioner rejected the underlying premise for the rate increase:  that insurers participating in the assigned risk program are entitled to rates that allow them to break even or earn a fair rate of return on the assigned risk policies standing alone and viewed in isolation from any other line or sub-line of the insurers' business.   In addition, the Commissioner ruled even if the insurers were entitled to an opportunity to earn a fair rate of return on assigned risk policies viewed in isolation from all other lines of insurance, the question of what constitutes a “fair rate of return” was currently the subject of other administrative hearings and, therefore, it could not be determined at the time of the assigned risk rate hearing whether a 112 percent increase afforded a fair rate of return.3  The Commissioner also ruled the application for a rate increase in assigned risk policies was inadequate because it failed to consider relevant factors such as the affordability of such a significant increase to policy holders—many of whom are of low income and rely on the assigned risk program as their only source of insurance.

CAARP and Allstate filed a petition for administrative mandamus challenging the Commissioner's decision.   The trial court found the evidence “uncontroverted” that insurers were suffering losses on assigned risk policies and needed a 112 percent rate increase to break even.   As a matter of law, the trial court held, if the assigned risk program “is to withstand constitutional attack on due process grounds, it must be permitted to charge premiums commensurate with the risks insured.”   Based on its view of the evidence and the law, the court ordered the Commissioner to vacate her decision denying the rate increase and to issue a new decision “consistent with the evidence presented” at the rate increase hearings.   The parties agree the effect of this order is to direct the Commissioner to approve the 112 percent rate increase.

The Commissioner filed a timely appeal which had the effect of staying the trial court's order.   We denied CAARP's motion for an order lifting the stay.   We now reverse the trial court's order.

SUMMARY OF DECISION

We find the Commissioner's first two reasons for rejecting the rate increase are supported by law and provide a legally sufficient basis for the decision.   We find no support for the proposition the assigned risk program must be self-sustaining.   Furthermore, the Commissioner had authority to freeze insurance rates pending the final determination of what constitutes a fair rate of return.4  Consequently, we conclude the trial court erred in granting a writ of mandate which in effect ordered the Commissioner to grant a 112 percent increase in assigned risk rates.5

I. PETITIONERS EXHAUSTED THEIR ADMINISTRATIVE REMEDY.

 Under Code of Civil Procedure section 1094.5 (subd. (a)) a party aggrieved by a “final administrative order or decision” may seek review by filing a petition for a writ of mandate.   Contrary to the Commissioner's claim, the order denying the rate increase was “final.”   The order states the application “for an overall average rate increase of approximately 112.3% is denied.”   The Commissioner is always free to consider a rate increase or other amendment to the assigned risk plan.  (§ 11620.)   The fact the Commissioner left the door open for a new rate increase application does not prevent this order from being final for purposes of judicial review.  (Cf. Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 109 P.2d 942.)

II. THE COMMISSIONER ACTED WITHIN AUTHORITY IN DENYING THE REQUESTED RATE INCREASE.

A. The Determination Whether Insurance Rates Afford an Opportunity for a Reasonable Return Need Not be Based on the Return From Individual Sub-lines of Insurance.

 It is unquestioned that in setting insurance rates the Commissioner must permit insurers to earn a fair and reasonable return.  (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 816 and fn. 5, 258 Cal.Rptr. 161, 771 P.2d 1247.)   The dispute over the assigned risk rates boils down to one fundamental question:  must the Commissioner adopt rates for assigned risk policies which permit insurers a fair and reasonable return on assigned risk policies standing alone?

 We hold the reasonable rate of return requirement does not require rates which allow insurers to break even, much less earn a profit, on assigned risk policies standing alone.

The argument the assigned risk program must be self-sustaining is based entirely on dictum in California Auto Assn. v. Maloney, (1951) 341 U.S. 105, 108, 71 S.Ct. 601, 603, 95 L.Ed. 788 in which the court remarked:  “We were advised on the argument that the premiums chargeable can be commensurate with the greater risks of the new business.   Confiscation is therefore not a factor in the case.”  (Italics added.)   This statement is a long way from a holding that, as a matter of constitutional law, assigned risk rates must be sufficient to produce a fair rate of return on assigned risk policies.   We note the court used the phrase “can be;”  not “will be” or “must be.”   Furthermore, since “[c]onfiscation is ․ not a factor in the case” we fail to see how the case can be cited as holding assigned risk policies must be self-sustaining or they will be deemed confiscatory.   Cases are not authority for propositions they do not consider.  (People v. Ceballos (1974) 12 Cal.3d 470, 481, 116 Cal.Rptr. 233, 526 P.2d 241.)   It makes just as much sense to read the quoted language to mean that as long as the rates set for assigned risk policies do not drag the insurer's overall rate of return below the fair and reasonable level, confiscation is not an issue.   This interpretation is supported by the court's concluding comment:  “Appellant's business may of course be less prosperous as a result of the regulation.   That diminution in value, however, has never mounted to the dignity of a taking in the constitutional sense.”  (California Auto Assn. v. Maloney, supra, 341 U.S. at p. 111, 71 S.Ct. at p. 604.)

Assigned risk rates cannot be divorced from automobile insurance rates in general because assigned risk policies are but a sub-line of private-passenger automobile insurance and subject to the overall requirement of section 1861.05 that “[n]o rate shall be approved or remain in effect which is excessive, inadequate, [or] unfairly discriminatory.”

Contrary to CAARP's argument, the Supreme Court has rejected the contention a rate set for one line of the plaintiff's business violates due process “merely because it is noncompensatory.”  “So long as [the plaintiff] is not caused by such regulations to lose money on its over-all business, it is hard to think that it could successfully charge that its property was being taken for public use ‘without just compensation.’ ”  (B. & O.R. Co. v. United States (1953) 345 U.S. 146, 147–148, 73 S.Ct. 592, 593, 97 L.Ed. 912.)

B. The Commissioner Was Authorized to Freeze Assigned Risk Rates Pending The Final Determination of What Constitutes a Fair Rate of Return.

 As a separate, independent ground for denying the rate increase, we hold the Commissioner was authorized to freeze assigned risk rates pending the decision, in other ongoing administrative proceedings, how a fair and reasonable return should be determined.

Although no California case addresses this precise issue, ample authority from other jurisdictions supports a holding that where the existing rates were lawfully set, the regulated business has no legal entitlement to an interim rate increase pending a final administrative determination of its overall rates.   And this is so even if it is suffering a loss during the administrative review period.  (Hope Natural Gas Co. v. Federal Power Comm. (4th Cir.1952) 196 F.2d 803, 808–809;  New Rochelle Water Co. v. Public Service Com'n (1972) 31 N.Y.2d 397, 340 N.Y.S.2d 617, 626, 292 N.E.2d 767, 776;  Trustees of Saratoga Springs v. Saratoga Gas, E.L. & P. Co. (1908) 191 N.Y. 123, 83 N.E. 693, 701;  Columbia Gas of W. Va. v. Public Serv. Com'n (W.Va.1983) 311 S.E.2d 137, 142;  N.J. Land Title Ins. Rating Bur. v. Sheeran (1977) 151 N.J.Super. 45, 376 A.2d 550, 553–554.)   This rule applies whether the existing rate was set by a regulatory agency as in Columbia Gas or by the regulated business itself as in N.J. Land Title.

In Hope Natural Gas Co. v. Federal Power Comm., supra, the circuit court rejected a gas utility's argument the rates which it was required to maintain in effect during a five-month suspension period provided by the Federal Natural Gas Act were confiscatory because the Federal Power Commission ultimately authorized higher permanent rates.   In substance, the utility in Hope argued that due process required that the higher final rates be applied retroactively to the date that its proposed rate increases would have become effective but for the suspension.

The court explained its reasons for rejecting the utility's argument as follows:

“It is argued that the constitutional guaranty against the enforcement of rates that are confiscatory requires that rates found reasonable be applied to the period of suspension.   We do not think so.   It has never been so held with respect to railroad rates, and there is no reason why any different principle should apply in the case of gas rates.   The holding that certain rates may be allowed as reasonable does not mean that lower rates must be condemned as unreasonable and confiscatory, especially where they are continued in preservation of the status quo during a reasonable period of rate investigation.   With changes in economic conditions rates must be changed from time to time, and the lag which necessarily accompanies the making of changes may result to the benefit of the utility as well as to its detriment * * * Rate making is not an exact science and losses of one period must be counterbalanced against gains of another in any fair consideration of the reasonableness of the rate making procedure.  [¶]  It is true, of course, that a utility is entitled to rates that are just and reasonable;  but this is not to say that rates must fluctuate automatically with every change in economic conditions or that a reasonable time may not be allowed for determining the reasonableness of a proposed increase in rates before it is allowed to go into effect.   Any loss sustained by a maintenance of the status quo while such determination is being made is properly considered, not as a violation of constitutional right, but as a necessary incident of rate regulation so long as the period of suspension does not ‘overpass the bounds of reason.’ ”  (196 F.2d, at pp. 808–809;  citations omitted, italics added.)

Other courts have expressed similar views.   In New Rochelle Water Co. v. Public Serv. Com'n, supra, the court upheld the Commission's refusal to apply permanent rate increases retroactively.

“[The] utilities ․ contend that the Commission's refusal to allow them reparation, representing the difference between the revenue produced by the temporary rates and the revenue produced by the higher final rates, for the period the temporary rates were in effect, constituted confiscation of their property and denied them due process of law.   NRW makes the further constitutional argument that the Commission also confiscated its property for the period between the time that the proposed rates were suspended and the date that the increased temporary rates were granted.  * * * [¶] There is a valid distinction between the temporary reduction of existing rates, which results in confiscation of the utility's property unless some provision is made to enable the utility to recoup its losses if it is ultimately determined that the reduced rate was too low, and the suspension of a proposed rate increase which merely preserves the status quo for a reasonably brief period of time while the Commission determines the reasonableness of the proposed rate increases.”  (340 N.Y.S.2d at pp. 625–626, 292 N.E.2d at pp. 775–776;  emphasis in original.)

In Trustees of Saratoga Springs v. Saratoga Gas, E.L. & P. Co., supra, the court upheld a three-year moratorium on increases in gas and electricity rates.   It was urged in that case, “circumstances might so alter that before the expiration of three years a rate which was reasonable at the time it was established would become unreasonable.”   The court responded, “This is possible.   Nevertheless we think the Legislature was justified in enacting some period of repose during which the rate should remain stable.”  (83 N.E. at p. 701.)

Of particular relevance is N.J. Land Title Ins. Rating Bur. v. Sheeran, supra, in which the court was confronted with a statute and a fact situation remarkably similar to those in the case before us.   In 1974, the New Jersey Legislature enacted the Title Insurance Act which the court described as representing “the first comprehensive regulation of title insurance companies doing business in this State and which requires, among other things, that rates charged by such insurers comport with filed rate schedules which have been first approved by the Commissioner of Insurance.”   (376 A.2d at p. 551.) 6  Pursuant to this statute, title insurance companies filed for rate increases.   The Commissioner ordered that pending final determination of the requested rate increases the companies' existing rates would remain in effect.   The companies appealed that order claiming they were entitled to put their filed rates into effect immediately.

The court upheld the Commissioner's “freeze” on rates at their existing level, reasoning:  “Since prior approval of rates is thus central to the entire statutory scheme, to permit an unapproved filing to take effect, particularly so critical a filing as the initial rate structure, would clearly be tantamount to a sanctioning of the very same unilateral action which the act was intended to proscribe.”  (376 A.2d at p. 553.)   The court also reasoned that where the ratemaking process was taking longer than the legislature had contemplated the Commissioner's broad administrative powers included freezing existing rates in order to carry out the purposes of the legislation.  “What is here involved is only an emergent and transitional measure of limited duration devised to serve the purpose of the act until effectuation of statutorily prescribed rate structures.   We perceive neither an ultra vires action nor an abuse of discretion on the part of the Commissioner.”  (Id. at p. 554.) 7 .

We recognize assigned risk is not a new program.   But, as we explained above, assigned risk rates and policies cannot be divorced from the overall ratemaking process.   Therefore, we find the reasoning in N.J. Land Title particularly persuasive in the present case.   Although the New Jersey courtwas not faced with a constitutional challenge to the rate freeze, as we are in the present case, such a challenge was presented and rejected in Hope Natural Gas and New Rochelle Water Co., supra, where, like the present case, the level of reasonable rates had been previously determined in a lawful manner and were being maintained on a temporary basis pending a determination of the reasonableness of rate increases.

This does not mean CAARP is required to wait indefinitely for the Commissioner's ratemaking decisions.  “Property may be as effectively taken by long-continued and unreasonable delay in putting an end to confiscatory rates as by an express affirmance of them[.]”  (Smith v. Illinois Bell Telephone Co. (1926) 270 U.S. 587, 591, 46 S.Ct. 408, 410, 70 L.Ed. 747.)   But, again, we are faced with the problem that it is impossible to say what constitutes a “confiscatory” rate.   And, in any event, CAARP does not allege the Commissioner is “foot-dragging” in the ratemaking process, nor does the record before us suggest the ratemaking procedure has been unreasonably delayed by the Commissioner.   If the blame for delay in the ratemaking procedure lies anywhere, it lies with the insurance industry which has deluged the Commissioner with lawsuits challenging virtually every step taken toward the implementation of Proposition 103.

CAARP cites Calfarm Ins. Co. v. Deukmejian, supra, as authority for a court-ordered rate increase pending the Commissioner's final ratemaking decision.  Calfarm notes the Commissioner's authority to grant interim rate increases pending the final rate decision.  (48 Cal.3d at pp. 824–825, 258 Cal.Rptr. 161, 771 P.2d 1247.)   Nothing in Calfarm suggests the Commissioner has a mandatory duty to grant interim rate increases.   Moreover, the opinion suggests the proper exercise of the Commissioner's power is to grant interim relief “from plainly invalid rates.”  (Id. at p. 824, 258 Cal.Rptr. 161, 771 P.2d 1247, italics added).)   It is not possible to determine at this stage what constitutes a plainly invalid rate.

The fact the current assigned risk rates are not “plainly invalid” distinguishes this case from California Trout, Inc. v. Superior Court (1990) 218 Cal.App.3d 187, 266 Cal.Rptr. 788 in which the Court of Appeal ordered the trial court to determine for itself the amount of water that needed to be released into Mono Lake and to impose those interim release rates pending a final determination by the Water Resources Control Board.  (Id. at pp. 212–213, 266 Cal.Rptr. 788.)   The appellate court found setting interim release rates did not involve questions of public policy within the board's discretion nor “ ‘the intricacies of water law’ ” within the board's expertise.   Any expertise the trial court needed was available from the Department of Fish and Game.   Furthermore, the board informed the Court of Appeal it had no objection to the trial court granting interim release rates.  (Id. at p. 213, 266 Cal.Rptr. 788.)   In contrast to the situation in California Trout, the case before us involves not only the expertise of the Commissioner but important policy choices which Proposition 103 left to the Commissioner's judgment.  (See Calfarm, supra, 48 Cal.3d at pp. 823–826, 258 Cal.Rptr. 161, 771 P.2d 1247.)

The other cases cited by CAARP in support of a judicially ordered interim rate increase are also distinguishable on their facts from the case before us.   In Prendergast v. N.Y. Tel. Co. (1923) 262 U.S. 43, 43 S.Ct. 466, 67 L.Ed. 853;  Love v. Atchison, T. & S.F. Ry. Co. (8th Cir.1911) 185 F. 321 and State Farm v. Insurance Dept. (1990) 133 Pa.Cmwlth. 644, 577 A.2d 951 the courts enjoined enforcement of orders reducing rates pending final ratemaking decisions.   Moreover, the courts' injunctive relief was heavily influenced by two factors not present in the case before us:  unreasonable, unexplained delay in the administrative process and the lack of any method for recouping the utilities' losses should the rates they were allowed to charge ultimately prove inadequate.  (Prendergast v. N.Y. Tel. Co., supra, 262 U.S. at pp. 49–51, 43 S.Ct. at pp. 468–469;  State Farm v. Insurance Dept., supra, 577 A.2d at p. 954;  and see Banton v. Belt Line Ry. (1925) 268 U.S. 413, 415–416, 45 S.Ct. 534, 535, 69 L.Ed. 1020;  Smith v. Ill. Bell Tel. Co., supra, 270 U.S. at p. 591, 46 S.Ct. at p. 409;  Okla. Gas Co. v. Russell (1923) 261 U.S. 290, 293, 43 S.Ct. 353, 354, 67 L.Ed. 659.)

The only case we have found ordering an interim increase in insurance rates is Blue Cross & Blue Shield of Del. v. Elliott (Del.Super.1982) 449 A.2d 267.   That case, too, is distinguishable.   Delaware follows a particularly cumbersome ratesetting procedure under which the insurer's new rates are effective immediately, subject to disapproval by the Commissioner within 30 days of their filing.   If the Commissioner disapproves the rate filed he is to set a “reasonable time” after which the filed rates will no longer be effective.   In this case the court found the Commissioner's order giving Blue Cross only five days to restore its previous rates was not a reasonable time.   Therefore, the court ordered the filed rates remain in effect pending administrative review.   The court also considered evidence Blue Cross is a non-profit corporation whose operations would be seriously threatened by inadequate rates and Blue Cross could not recoup its losses should the current rates prove inadequate.  (Id. at pp. 270–271.)

In our view, the present case is, factually, similar to cases which have allowed moratoria on rate increases, or temporary freezes on current rates, while administrative ratemaking procedures are set up to handle new circumstances.  (See, e.g., Permian Basin Area Rate Cases (1968) 390 U.S. 747, 777, 88 S.Ct. 1344, 1365, 20 L.Ed.2d 312, approving a moratorium which exceeded two years on filing requests for increased gas prices.)   As the court noted in Calfarm, such moratoria or temporary freezes are commonly approved where the frozen rates were those set by the seller in a competitive market.  (48 Cal.3d at pp. 819–820, 258 Cal.Rptr. 161, 771 P.2d 1247 and cases cited.)   Assigned risk rates are set by the Commissioner, not by the insurance companies.   But this fact does not accurately convey the total picture.   As we have pointed out, assigned risk rates cannot be divorced from automobile insurance rates in general which were set by the insurance companies in a competitive market.   Assigned risk policies are but one sub-line of automobile insurance and it is an undisputed fact that for years assigned risk rates have been subsidized by the general automobile insurance market.   It necessarily follows the current rates for automobile insurance were set taking the assigned risk experience into account.   Furthermore, if insurance companies were dissatisfied with the current assigned risk rates set by the Commissioner they could have challenged those rates in a proceeding for administrative mandamus.   They did not do so.   Therefore, we are entitled to assume the insurance companies accepted the rates as adequate.

We conclude, therefore, it was premature to attempt to set new rates for assigned risk policies when there was no existing definition of a fair return and no methodology for determining one.

DISPOSITION

The judgment is reversed with directions to dismiss the action.   Appellant is awarded costs on appeal.

I concur in the judgment.

I separately concur in the majority opinion to register my dissatisfaction with portions of the reasoning expressed by the majority, although I concur in the results reached by the majority.

Initially, I take exception with the language appearing on pages 223 and 224 of the majority opinion which states:

“․ If the blame for delay in the ratemaking procedure lies anywhere, it lies with the insurance industry which has deluged the Commissioner with lawsuits challenging virtually every step taken toward the implementation of Proposition 103.”

The language is particularly disturbing since aggressive assertions of actual or honestly perceived legal rights in our judicial system, in my opinion, is to be encouraged rather than criticized.   Indeed, the legal pusillanimity apparently favored in the majority opinion could lead to a very unfavorable result for a litigant, namely, the jeopardizing one's legal position in court by having “slept” on one's legal rights.   I find no ground for criticizing the insurance industry in aggressively pursuing and protecting valuable rights in the courts and agencies of this state.

Secondly, I question the advisability of the heavy reliance by the majority on precedents established in “utility” cases and the applicability of those cases to the field of insurance.   A complete analogue to utility cases escapes me.   The insurance industry has historically been predominately self-regulating, highly competitive, and well founded on the law of contracts.   Public utilities, on the other hand, have seldom been afforded such self-regulating privileges, have been noncompetitive and have generally been given a monopolistic status by the state.   I find little comfort in the analogy being drawn by the majority between public utilities and the insurance industry.

Lastly, I agree with the majority that CAARP is not necessarily entitled “to break even,” or to be self-supporting, or to make a profit on its compulsory assigned risk portfolio of business without reference to the total line of insurance coverage offered by an automobile risk insurer.   I do, however, believe that the majority has understated the specter of unconstitutional “confiscation” should the assigned risk line of business prove to be too burdensome on the complete line of automobile insurance business offered by the auto insurance policy writer.   That issue is not before us on this appeal but the reality of the majority opinion is one in which the question of “confiscation” looms ever present should an imprudent Commissioner fix unrealistically low rates for the mandatory participants in the California Automobile Assigned Risk Plan.

Other than as stated, I concur in the majority opinion.

FOOTNOTES

1.   All future references are to the Insurance Code unless otherwise noted.

2.   In the trial court, the Commissioner challenged CAARP's standing to bring this action for administrative mandamus.   The court rejected the Commissioner's challenge and the point has not been raised on appeal.   Therefore we will assume, without deciding, CAARP has standing to pursue this litigation.   In any event, Allstate, an assigned risk participant, was permitted to intervene in the administrative proceeding and as a petitioner in this action and clearly has standing to sue.

3.   The Commissioner's solution to this problem was a regulation allowing insurers to recoup current assigned risk losses through subsequent rate increases once the rules on fair rate of return were settled.

4.   It is unnecessary to reach the “affordability” issue which the Commissioner gave as a third reason for rejecting the rate increase and we express no view on that issue.

5.   While this appeal was pending the Commissioner issued an order granting all insurers a 70 percent interim rate increase on their assigned risk policies issued or renewed after October 1, 1990.   The order provides any interim increase is conditioned upon a mandatory refund with interest if the interim rates authorized in the order are later determined excessive.   The order also provides nothing contained therein shall affect the rights of any party in connection with pending administrative or judicial proceedings.

6.   (Cf. §§ 1861.02, subd. (c), 1861.05;  Calfarm v. Deukmejian, supra, 48 Cal.3d at pp. 812–813, 258 Cal.Rptr. 161, 771 P.2d 1247.)

7.   It cannot be disputed California's Insurance Commissioner has similar power.   Section 12921 provides, “The commissioner shall perform all duties imposed upon [her] by provisions of this code ․ and shall enforce the execution of such provisions and laws.”   Section 8, subdivision (a) of Proposition 103 (uncodified) states, “This act shall be liberally construed and applied in order to fully promote its underlying purposes.”   Among those purposes is “to ensure that insurance is fair, available and affordable for all Californians.”  (Prop. 103, § 2 [uncodified].)   Moreover, the Commissioner's powers are not confined to those expressly conferred by statute;  “ ‘rather, “[i]t is well settled in this state that [administrative] officials may exercise such additional powers as are necessary for the due and efficient administration of powers expressly granted by statute, or as may fairly be implied from the statute granting the powers.” ’ ”  (Calfarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d at pp. 824–825, 258 Cal.Rptr. 161, 771 P.2d 1247, citations omitted, emphasis by the court.)

JOHNSON, Associate Justice.

LILLIE, P.J., concurs.