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In re Proceedings

Decided: December 19, 1967.

IN RE: PROCEEDINGS BY THE COMMISSIONER OF BANKING AND INSURANCE, STATE OF NEW JERSEY, PURSUANT TO THE PROVISIONS OF N.J.S.A. 17:22-16 AND N.J.S.A. 17:22-6.24, TO FINE PARKWOOD COMPANY, A CORPORATION, 661 SHUNPIKE ROAD, MADISON, NEW JERSEY, AND JOHN APGAR, THE ACTIVE OFFICER OF THE CORPORATION, OR TO REVOKE OR SUSPEND THE EXISTING INSURANCE LICENSES OF THE PARKWOOD COMPANY AND JOHN APGAR


Kilkenny, Carton and Malech. The opinion of the court was delivered by Carton, J.A.D.

Carton

[98 NJSuper Page 266] Parkwood Company and John Apgar, licensed insurance agents and brokers, appeal from a decision of the Commissioner of Banking and Insurance determining that Parkwood had demonstrated unworthiness as a licensee N.J.S.A. 17:22-6.16, 17:22-6.24. They also challenge his actions in imposing a $500 fine and ordering repayment of return premiums, suspending their licenses pending compliance therewith, and revoking the licenses in the event of noncompliance within 15 days. These determinations are based on the Commissioner's finding that appellants failed to repay a return premium due to Chemsol, Inc. in the amount of $8,242.32 and were indebted to

Transamerica Insurance Company in the sum of $31,825.18 since December 1965.

The evidence at the hearing established that Zurich Insurance Company, for whom Apgar was an approved policy-writing agent until August 12, 1964, issued through Parkwood a comprehensive general liability policy for a premium of $34,000 insuring property of Chemsol, Inc. Chemsol paid Parkwood the $34,000 for the policy. Zurich cancelled this policy on December 1, 1964 and credited $8,242.32, the amount of the return premium due from it, to Parkwood on the Chemsol account. Despite numerous requests from Chemsol, Parkwood never repaid this amount to Chemsol. Parkwood asserted at the hearing that its refusal to repay the $8,242.32 was for the reason that it was entitled to an offset consisting principally of $6,200 from Chemsol for binder charges on insurance procured through Parkwood from four other insurance companies for the period July 15, 1963 to November 1964.

Representatives of all four insurance companies categorically denied that they had ever received a binder form or copy thereof; no policies were ever issued for any such alleged insurance coverage, and that they had never billed for it. Appellants sought to establish the existence of the coverage by claiming they had sent a copy of the binder to Chemsol. On this basis appellants asserted at the hearing before the Commissioner and on this appeal that the companies would become liable by Parkwood's acts as their agent and, in any event, Parkwood would be liable to Chemsol to the extent of the alleged coverage in the event of a loss.

The Commissioner found that the $8,242.32 returned to Parkwood by Zurich was due to Chemsol, and that although Parkwood and Chemsol had done business on an account basis, there were minimal debts to apply against that return premium. He accepted as credible and persuasive the testimony of the representatives of the four insurance companies with which insurance had allegedly been placed, and found

that Parkwood was not entitled to any offset from any of these companies.

With respect to the charge concerning the indebtedness of Transamerica Insurance Company, the Commissioner found that Parkwood was indebted to Transamerica for the months of July through December 1965 in the amount of $31,825.18, but noted that an agreement had been entered into by these parties whereby Parkwood had paid $15,000 of this total and agreed to return the remainder due at the rate of $1,000 monthly until the entire balance was paid.

Since this appeal involves the action of an administrative agency, our function as an appellate court is to examine the evidence to determine whether there is substantial evidence in the record to support the agency's determination. Where such evidence appears, that determination should not be disturbed. Campbell v. Dept. of Civil Service, 39 N.J. 556, 562 (1963); Atkinson v. Parsekian, 37 N.J. 143 (1962).

We are satisfied from our review of the record that the findings of the Commissioner were based upon substantial evidence and fully sustained the determination that the charges constituted unworthiness on the part of the licensees-appellants in violation of N.J.S.A. 17:22-6.16(h). An insurance broker acts in a fiduciary capacity and is held to a high standard of conduct. Close and continuous scrutiny of the licensee's exercise of his license and the establishment of standards and guidelines are necessary to maintain the high standard of conduct and the degree of fidelity the statute envisions. As a means of accomplishing this objective, the Legislature has conferred on the Commissioner authority to suspend or revoke the license of a licensee if he has demonstrated unworthiness, bad faith, incompetency or dishonesty N.J.S.A. 17:22-6.16(h). Such suspension or revocation may be ordered as an alternative or addition to other penalties.

The evidence revealed beyond question that appellants departed from that standard of conduct ...


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