No Trifling Matter: Forms, Bulletins, and Administrative Rulemaking in Louisiana After Gingles v. Dardenne

• Author: Michael J. Fagan, Jr.
• Pages: 1305-1338

No Trifling Matter: Forms, Bulletins, and

Administrative Rulemaking in Louisiana After

Gingles v. Dardenne

I. INTRODUCTION

Imagine a meeting between a representative of a Louisiana

insurance company and a potential client. The client is interested in

purchasing an automobile liability insurance policy.1 Seeking to

save money on her insurance premiums, the client expresses a

desire to waive uninsured and underinsured motorist (UM)

coverage, which would otherwise automatically be included in the

policy.2 The representative presents a waiver form issued by the

Louisiana Department of Insurance (LDOI),3 and the two carefully

fill out all of the blanks on the form. After the client signs the

form, she and the representative conclude their remaining business

together, and the satisfied client leaves the office with her new

insurance policy.

Several months later, the client is involved in an automobile

accident with an insolvent and uninsured driver. Unable to recover

damages from the accident by any other means, the client sues her

insurance company, claiming that she is entitled to UM coverage

under her policy. The client’s prior waiver of UM coverage is

ineffective, she says, because a blank on the waiver form requiring

the insurer’s company name4 had not been filled out. In its

response, the insurance company notes that a recent Louisiana

Supreme Court case held that the company name is not required

for a valid UM waiver.5 The client counters that the case is not

controlling because it dealt with an old UM waiver form that is no

longer in effect,6 and the instructions accompanying the current

version of the form specifically require inclusion of the company

Copyright 2011, by MICHAEL J. FAGAN, JR.

1. All drivers in Louisiana are required by law to purchase automobile

liability insurance. LA. REV. STAT. ANN. § 32:861 (Supp. 2011).

2. Id. § 22:1295(1)(a)(i); see infra Part II.B.

3. See infra Part II.B.3.

4. Throughout this Comment, the term “insurer’s company name” is used,

rather than the more natural-sounding “insurance company’s name,” because it

is possible for an insurance company to itself be the insured party in an

insurance policy. Use of the term “insurance company’s name” in such a

situation would be ambiguous because both the insurer and the insured would be

insurance companie s.

5. Gingles v. Dardenne, 4 So. 3d 799, 800 (La. 2009); see infra Part

II.B.2.a.

6. See infra notes 57–61 and accompanying text.

1306 LOUISIANA LAW REVIEW [Vol. 71

name on the form.7 The insurance company replies that the

Louisiana Supreme Court decision should be interpreted to apply

to all UM waiver forms issued under the controlling statute,8 not

just the particular form that was before the court at the time.

The above hypothetical scenario illustrates some of the problems

caused by the recent Louisiana Supreme Court case of Gingles v.

Dardenne, which involved a purported waiver of UM coverage in an

automobile liability insurance policy.9 The central issue in that case

was whether the bulletins of the Commissioner of Insurance

(“Commissioner”) could impose additional requirements on top of

the pre-existing statutory and jurisprudential requirements for an

effective UM waiver.10 Although the Gingles court found that an

effective UM waiver did not require the insurer’s company name,11

the court did not explain its disregard of the Commissioner’s

bulletins. Thus, the Gingles decision muddies the waters with

respect to UM waivers while also raising the broader question of

whether, outside the context of UM waivers, documents such as the

bulletins can have legally binding effect under Louisiana law. Is this

issue a mere trifling matter, or does it have broader implications for

administrative law in Louisiana?

This Comment explores the possible ramifications of the

Gingles decision on the requirements that Louisiana state agencies

must follow when promulgating legally binding “rules.” The

Comment concludes that most agency documents, which have a

minimal effect on substantive rights, should be generally exempt

from the notice-and-comment rulemaking procedures of the

Louisiana Administrative Procedure Act (LAPA) in order to

increase administrative efficiency. However, safeguards should be

built into that exemption to account for documents, such as those

in Gingles, that disproportionately impact the substantive rights of

affected persons.12

Part II provides a brief overview of the notice-and-comment

rulemaking provisions of the LAPA13 as well as the relevant

legislation and jurisprudence regarding waivers of UM coverage.

Part II culminates in a detailed analysis of the Gingles case and its

7. See infra Part II.B.3.

8. LA. REV. STAT. ANN. § 22:1295(1)(a)(ii) (Supp. 2011).

9. 4 So. 3d 799.

10. Id.

11. Id. at 800.

12. Whenever this Comment refers to “persons” regulated by an agency, it

is also referring to any legal entities that the agency may also regulate. For the

sake of brevity, the term “persons” will be used to refer to both natural persons

and legal entities.

13. LA. REV. STAT. ANN. §§ 49:950–:972 (2003 & Supp. 2011).

2011] COMMENT 1307

aftermath. Part III explores the question of whether the types of

documents at issue in Gingles are required under Louisiana law to

go through the LAPA’s prescribed rulemaking procedures before

being accorded legally binding effect. Part IV discusses the various

policy considerations behind requiring notice-and-comment

rulemaking for these documents. Part IV also proposes possible

ways to exempt certain agency documents from notice and

comment, both under current Louisiana law and through amending

the LAPA.

II. RULES AND WAIVERS: AN OVERVIEW

To understand the issues that the Gingles decision raises for

administrative rulemaking in Louisiana, it is essential to review the

pertinent provisions of Louisiana administrative law as well as the

relevant Louisiana law regarding waivers of UM coverage. A

careful analysis of the interactions between the two bodies of law

serves to illustrate several problematic issues regarding the scope

of Louisiana’s notice-and-comment rulemaking procedures.

A. Louisiana Administrative Rulemaking

The Louisiana Legislature enacted the LAPA in 1966.14 The

legislation was partially based on the Revised Model State

Administrative Procedure Act as well as the federal Administrative

Procedure Act (APA).15 The main purpose behind the LAPA’s

enactment was to “replace the myriad of rules governing agency

procedure with a comprehensive and uniform system.”16 The

legislation covers many facets of state administrative practice,

including adjudication, rulemaking, and the scope of judicial

review of agency action.17

1. The LAPA’s Rulemaking Procedures

One of the primary components of the LAPA is the enactment

of various procedures that state agencies are required to follow

when promulgating legally binding rules. Section 951(6) of the

14. See Robert Force & Lawrence Griffith, The Louisiana Administrative

Procedure Act, 42 LA. L. REV. 1227, 1227 & n.1 (1982).

15. Id. at 1227 n.1.

16. Karen M. Karré, Comment, Louisiana’s “New” Administrative

Procedure Act, 35 LA. L. REV. 629, 630 (1975); see also Force & Griffith, supra

note 14, at 1227 n.1.

17. See generally Brandee Ketchum & Andrew Olsan, Comment, Louisiana

Administrative Law: A Practitioner’s Primer, 68 LA. L. REV. 1313 (2008).