      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00335-CV



               Appellant, Farmers Texas County Mutual Insurance Company
                    // Cross-Appellants, Irene Romo and Fenn Ratcliffe,
             Individually and on Behalf of All Other Persons Similarly Situated

                                                 v.

                         Appellees, Irene Romo and Fenn Ratcliffe,
             Individually and on Behalf of All Other Persons Similarly Situated
        // Cross-Appellees, Farmers Texas County Mutual Insurance Company and
                        USAA County Mutual Insurance Company


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
    NO. D-1-GN-06-001824, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                                           OPINION


               In this declaratory judgment action, Plaintiffs Irene Romo and Fenn Ratcliffe

challenge the propriety of installment payment plan fees charged by USAA County Mutual Insurance

Company and an affiliate of Farmers Texas County Mutual Insurance Company for providing

installment payment plans to auto insurance policyholders. Romo and Ratcliffe claim that the

charges to policyholders for electing to pay premiums in installments pursuant to the payment plans

are not authorized by the Texas Insurance Code, violate the filed rate doctrine, and breach the

parties’ contracts of insurance. They seek recovery of the installment payment plan fees they have

paid and also seek to have a class certified consisting of similarly situated policyholders.
                The trial court rendered declarations that (1) the installment fees at issue are subject

to certain filing requirements under the Texas Insurance Code, but (2) county mutual insurance

companies were not subject to these filing requirements until December 1, 2004, when they became

rate regulated, and therefore, (3) the charges were not prohibited by the insurance code prior to

December 1, 2004. Farmers and the Plaintiffs appeal.1 Farmers argues that the fees in question have

never been and are not now subject to filing requirements under the insurance code provision in

question and, alternatively, even if the fees are subject to such filing requirements, the Plaintiffs have

no private right of action under the insurance code provisions at issue to recover the fees they paid.

The Plaintiffs argue that the fees in question have been subject to filing requirements since the

companies began charging the fees, that they are entitled to declarations that the filed rate doctrine

applies to the fees prior to December 1, 2004, and that since neither insurer filed these charges with

the Department of Insurance, the insurers were not entitled to collect the fees.

                We conclude that the installment fees at issue were not subject to the filing

requirements alleged by the Plaintiffs under either the current version of the applicable statute or its

predecessor. Therefore, we reverse the district court’s declarations to the contrary.


Background

                Farmers and USAA are county mutual insurance companies formed under the laws

of the State of Texas and each has a certificate of authority from the Commissioner of Insurance to

do business in the State of Texas. They both write six-month private passenger auto insurance


        1
       USAA did not appeal because it had not collected any of the type of fees in dispute after
December 1, 2004.

                                                    2
policies in Texas. In addition, an affiliate of USAA writes twelve-month residential property renters

policies in Texas.

                  From October 1987 to October 2002, Romo (together with her husband who is now

deceased) was insured under a series of six-month private passenger auto policies written by Texas

Farmers Insurance Company. Texas Farmers Insurance Company withdrew from the private

passenger auto insurance market in Texas and, in October 2002, the Romos’ policy was replaced by

a private passenger auto policy written by Farmers Texas County Mutual Insurance Company, one

of the defendants in this case. This policy has since been renewed every six months to the present.

From November 2002 to the present, Ratcliffe has been insured under a series of six-month private

passenger auto policies written by USAA County Mutual Insurance Company.

                  Both Romo and Ratcliffe were offered the option of paying the premiums for their

policies in monthly installments rather than in a single lump sum when due, and both elected to do

so. The option to pay in monthly installments included an additional service fee for the installment

plan that varied depending on the size of the premium payment.2 The parties stipulate that both

options, (1) paying premiums in full upon renewal without incurring a service fee and (2) paying

premiums in monthly installments together with a service fee, were disclosed to Romo and Ratcliffe,

and that each voluntarily elected to pay premiums in installments along with the service fee.




         2
             The installment fees at issue for the named plaintiffs varied between $3.00 and $6.50 per
month.

                                                    3
               The installment payment plan offered to Farmers’s insureds has, since 1984, been

offered by Farmers Insurance Exchange (“FIE”), an affiliate of Farmers.3 Farmers’s insureds, such

as Romo, who wish to take advantage of an installment payment plan sign a Monthly Payment Plan

Agreement with FIE that includes an agreement to pay the monthly service fee. FIE then collects

premium payments on behalf of Farmers as well as the service fee provided for in the Monthly

Payment Plan Agreement. FIE forwards the insurance premium on to Farmers and retains the service

fee pursuant to a 1984 Administrative Servicing Agreement between it and Farmers.

               The Administrative Servicing Agreement, filed with the State Board of Insurance in

1991, provides that FIE will perform “premium collection services” on behalf of Farmers for

“policyholders of [Farmers] who elect to remit premiums on a monthly payment plan.” The

Administrative Servicing Agreement also provides that the service charges for providing the

installment payment plan are not premiums for insurance, but are charges for the services of FIE, and

are the property of FIE. This arrangement for premium collection services to be performed by FIE

for Farmers was deemed approved by the Commissioner of Insurance by operation of law pursuant

to the Holding Company Systems Regulatory Act and has never been disapproved or challenged by

the Commissioner of Insurance. See Tex. Ins. Code Ann. § 823.103 (West 2007); Act of May

27, 1991, 72d Leg., R.S., ch. 242, § 8.03, 1991 Tex. Gen. Laws 939, 1016-17, codified at former

Tex. Ins. Code art. 21.49-1, § 4(d), recodified by Act of May 22, 2001, 77th Leg., R.S., ch. 1419, § 1,

sec. 823.103, 2001 Tex. Gen. Laws 3658, 3700.




       3
        It is undisputed that Farmers and FIE are “affiliates” under the Holding Company Systems
Regulatory Act. Tex. Ins. Code Ann. § 823.003 (West 2007).

                                                  4
               USAA offered its insureds three different installment payment plans without using

the services of a subsidiary or affiliate company. USAA insureds such as Ratcliffe who elected to

pay their premiums in installments forwarded the service fee for the installment plan directly to

USAA together with each premium payment. As of May 1, 2004, USAA had stopped assessing a

fee for any of its installment payment plans.

               Romo and Ratcliffe originally filed this action in August 2003 seeking relief

individually as well as class relief for a class of similarly situated policyholders. They claim that

section 912.201 of the insurance code and its predecessor—article 17.25, section 6 of the insurance

code—required Farmers and USAA to file a schedule of the amounts they or their affiliates charged

policyholders for electing to pay their auto insurance premiums in installments over time rather than

in a single lump sum when due.4 They asserted claims for declaratory relief to have these fees

declared subject to the filing requirements of section 912.201 and its predecessor as well as subject

to the filed rate doctrine. The Plaintiffs claim that, as a consequence of the filing requirements and

the filed rate doctrine, the defendants’ collection of the fees was illegal and/or a breach of contract

because a schedule of the fees had not been filed with the Department of Insurance. Romo and

Ratcliffe also asserted three causes of action for damages: (1) overcharge, (2) breach of contract,

and (3) money had and received.


       4
           The claims are not based on an allegation that the service fees were not disclosed or were
misrepresented in any way. There is no dispute that the fees were fully and accurately disclosed both
to the Plaintiffs and to the Texas Department of Insurance, and that the Plaintiffs voluntarily elected
to use the offered installment plans and pay the additional fees. The crux of the Plaintiffs’ claims
is that the insurers were required to file the amount of the service fees with the Texas Department
of Insurance and, unless the amounts were filed, policyholders could not be charged these fees
whether they and the Department of Insurance were aware of the fees or not.

                                                  5
                Defendants Farmers and USAA answered and filed counterclaims for declaratory

relief seeking declarations that the installment payment plan fees in question are not subject to the

filing requirements of section 912.201 or its predecessor, and even if they were, the filed rate

doctrine did not operate to bar their collection of the fees. Thus, their collection of the fees was

authorized and legal. Since the cross-claims for declaratory relief were questions of law that would

govern whether the underlying class claims could go forward, the parties agreed to sever the claims

for declaratory relief from the claims for damages and filed cross-motions for summary judgment

in the severed declaratory judgment action. The parties stipulated to the material facts relating to

their claims for declaratory relief. On appeal, Farmers and USAA also assert that there is no private

right of action under section 912.201 and, therefore, the trial court lacked subject matter jurisdiction

over the Plaintiffs’ claims for declaratory relief because Romo and Ratcliffe do not have standing

to pursue those claims.


Standard of Review

                We review the summary judgment de novo. Joe v. Two Thirty Nine Joint Venture,

145 S.W.3d 150, 156 (Tex. 2004). The standards for reviewing a summary judgment are well

established: (1) the movant must demonstrate that there is no genuine issue of material fact and that

it is entitled to judgment as a matter of law; (2) in deciding whether a disputed issue of material fact

exists that would preclude summary judgment, we take all evidence favorable to the non-movant as

true; and (3) we indulge every reasonable inference and resolve any doubts in favor of the

non-movant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When, as here,

both parties file motions for summary judgment and the court denies both in part and grants both in

                                                   6
part, we must review the summary judgment evidence presented by both sides, decide all questions

presented, and render the judgment that the trial court should have rendered. See City of Garland

v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). The material facts relating to the nature

of the installment plan service fees are not in dispute. Consequently, whether the service fees at

issue are subject to filing requirements under section 912.201 of the insurance code and its

predecessor is a question of law.


Subject Matter Jurisdiction

                Subject matter jurisdiction is essential to the authority of a court to decide a case.

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Standing is implicit

in the concept of subject matter jurisdiction and is a component of subject matter jurisdiction. Id.

at 443-45. Thus, a plaintiff must have standing for the court to have subject matter jurisdiction to

decide the merits of the claims. Id.; State Bar of Tex. v. Gomez, 891 S.W. 2d 243, 245 (Tex. 1994).

Subject matter jurisdiction is never presumed and is an issue that may be raised for the first time on

appeal, and a lack of subject matter jurisdiction on the part of the court cannot be waived by the

parties. Texas Ass’n of Bus., 852 S.W.2d at 443-45.

                Farmers and USAA argue on appeal that the Plaintiffs do not have a private right of

action to enforce or seek a remedy for any potential violations of, or failures to comply with, section

912.201. They assert that the power to enforce section 912.201 rests exclusively with the

Department of Insurance and the Commissioner of Insurance, and that the Plaintiffs’ claims for

declaratory relief in this case “arise under or are premised on” an alleged violation of section 912.201

and its predecessor. Therefore, Farmers and USAA conclude, the Plaintiffs lack standing to pursue

                                                   7
their claims for declaratory relief in this case because those claims necessarily involve an

adjudication of whether Farmers and USAA have failed to comply with section 912.201.

               Plaintiffs Romo and Ratcliffe counter that they are not seeking to pursue a private

cause of action for a violation of section 912.201 and its predecessor. Rather, they argue, they are

pursuing claims for breach of contract as well as common law claims for money had and received

and overcharge that happen to turn on whether Farmers and USAA filed the amounts they have

charged in accordance with section 912.201. They contend that if Farmers and USAA failed to file

the amount of the installment payment plan fees in accordance with section 912.201 and its

predecessor, such a failure would give rise to a breach of the parties’ contracts of insurance under

the theory that the insurers are only allowed by law to contract for amounts that are filed pursuant

to section 912.201. Charging any amount not filed in accordance with section 912.201, they argue,

is illegal and is a breach of contract because insurers are allowed by law to collect only “lawfully

prescribed rates” pursuant to their contracts of insurance. Romo and Ratcliffe’s theory is as follows:


       •       contracts of insurance require insurers to charge only lawfully prescribed amounts;

       •       by virtue of the filed rate doctrine, lawfully prescribed amounts for the policies
               involved in this case are those amounts filed with the Department of Insurance in
               accordance with section 912.201 and its predecessor;

       •       Farmers and USAA did not file the installment payment plan fees in accordance with
               section 912.201;

       •       the installment payment plan fees, therefore, are not lawfully prescribed amounts that
               may be charged;

       •       by charging and collecting the fees Farmers and USAA breached their contracts of
               insurance with Romo and Ratcliffe giving rise to claims for breach of contract as well
               as related claims for money had and received and overcharge; and,

                                                  8
       •       Romo and Ratcliffe have standing to seek declaratory relief as to whether the filed
               rate doctrine and, as a corollary, section 912.201 apply to the installment payment
               plan fees at issue not as a private cause of action for a failure to comply with section
               912.201, but as a part of their contract dispute.


               The jurisdictional issue here is the Plaintiffs’ standing to have their request for

declaratory relief adjudicated rather than the merits of the underlying cause of action for

breach of contract. In this instance, the standing issue is distinct from the merits. In such cases, a

court should not adjudicate the merits of the parties’ claims in deciding the issue of standing. See

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000); In re Sullivan, 157 S.W.3d 911,

920 (Tex. App.—Houston [14th Dist.] 2005, orig. proceeding). Romo and Ratcliffe have sought

declaratory relief as to the application of a statute and the application of the filed rate doctrine to

certain items potentially addressed by that statute. They have pleaded that they seek this relief in

connection with their underlying claim for breach of contract.5 The connection of section 912.201

to the request for declaratory relief here is that an alleged failure to comply with the filing

requirements of section 912.201 coupled with charging an unfiled amount constitutes a breach of the

contract of insurance. The Plaintiffs claim the failure to comply with section 912.201 while charging

the installment payment plan fees is a breach of contract and they will seek remedies for that breach.

This may or may not be a viable claim, but this is the allegation. It does not imply a private right of

action to sue for a violation of section 912.201. The underlying dispute relating to the request for


       5
          The underlying causes of action for breach of contract, money had and received, and
overcharge have been severed into a separate cause number to allow resolution of the claims for
declaratory relief in this case. We address standing in this case only with regard to the requested
declaratory relief. We express no opinion as to the Plaintiffs’ standing with respect to the underlying
causes of action in the severed cause.

                                                  9
declaratory relief is for breach of contract. The alleged noncompliance with the statute is simply one

component of the alleged breach of contract. Whether there is any merit to this theory or any merit

or viability to the underlying breach of contract claim is an inquiry appropriate for a disposition on

the merits of the underlying claim rather than disposition as a matter of standing and jurisdiction

with respect to the request for declaratory relief in this case.

                Romo and Ratcliffe have standing to seek a judicial resolution of the legal questions

of whether the statute at issue and the filed rate doctrine apply in the manner that they claim affects

the amounts that the insurers are allowed to charge under their contracts of insurance. As

policyholders alleging a breach of the insurance contract they have a justiciable interest in the

resolution of the questions. We hold that the trial court had subject matter jurisdiction to address

the questions presented by the claims for declaratory relief in this case.


Filing Requirements Under the Statute

                The Plaintiffs’ claims are based on the argument that former article 17.25, section 6

of the insurance code and its amended version currently in force, section 912.201, required and

continue to require county mutual insurance companies to file with the Department of Insurance a

schedule of the amounts they charge insureds for allowing payments to be made in installments.

Former article 17.25, section 6 provided:


        Sec. 6. Such companies shall file with the Board a schedule of its rates, the amount
        of policy fee, inspection fee, membership fee, or initial charge by whatever name
        called, to be charged its policyholders or those applying for policies.




                                                  10
Act of June 7, 1951, 52d Leg., R.S., ch. 491, § 1, art. 17.25, sec. 6, 1951 Tex. Gen. Laws 868, 1043

[hereinafter 1951 Act], repealed by Act of May 22, 2001, 77th Leg., R.S., ch. 1419, § 31(a), 2001

Tex. Gen. Laws 3658, 4208 [hereinafter 2001 Act]. Article 17.25, section 6 was recodified and

replaced effective June 1, 2003, see 2001 Act, § 33, 2001 Tex. Gen. Laws at 4201, by section

912.201 of the insurance code, which provides:


       A county mutual insurance company shall file with the department a schedule of the
       amounts the company charges a policyholder or an applicant for a policy, regardless
       of the term the company uses to refer to those charges, including “rate,” “policy fee,”
       “inspection fee,” “membership fee,” or “initial charge.” A county mutual insurance
       company shall file premium, expense, and loss experience data with the department
       in the manner prescribed by the commissioner. An insurer shall file the schedules
       and data required under this section according to rules promulgated by the
       commissioner.


Tex. Ins. Code Ann. § 912.201 (West 2007).

               The text of article 17.25, section 6 was first enacted in 1947 as article 4860a-20,

section 2a(d) of the Texas Revised Civil Statutes. See Act of June 5, 1947, 50th Leg., R.S., ch. 367,

§ 1, sec. 2a(d), 1947 Tex. Gen. Laws 739, 741, repealed by 1951 Act, § 4, 1951 Tex. Gen. Laws

at 1094. It was recodified in 1951 without change as article 17.25, section 6 of the insurance code,

see 1951 Act, § 1, art. 17.25, sec. 6, 1951 Tex. Gen. Laws at 1049 (repealed 2001), and the text

remained unchanged by the legislature until the statute was again recodified as section 912.201

effective 2003, see 2001 Act, § 1, sec. 912.201, 2001 Tex. Gen. Laws at 3975. The recodification

of article 17.25, section 6 was part of the state’s ongoing statutory revision and codification program

begun in 1963. The program contemplates a topic-by-topic revision of the state’s general and

permanent statute law without substantive change. Tex. Ins. Code Ann. § 30.001(a) (West 2007).

                                                  11
               Former article 17.25, section 6 required county mutual insurance companies to file

a schedule of two types of charges to “policyholders or those applying for policies”:


       (1)     the company’s rates; and

       (2)     the amount of policy fee, inspection fee, membership fee, or initial charge by
               whatever name called.


See 1951 Act, § 1, art. 17.25, sec. 6, 1951 Tex. Gen. Laws at 1043 (repealed 2001). The installment

payment plan fees at issue in this case do not fall into either of these categories. They are not a rate

nor a component of a rate. Nor are they an initial charge for a policy that might go by a variety of

labels such as “policy fee,” “inspection fee,” or “membership fee.” It is undisputed by the parties

that the installment payment plan fees at issue are a charge associated with the company’s providing

an optional plan for a policyholder to pay his or her premium in installments. The parties have

stipulated that a policyholder may avoid these charges altogether and receive the same insurance

coverage by paying the premium for the policy in full when due. Therefore, since the fees at issue

are not a rate or an initial charge for a policy, former article 17.25, section 6 did not require county

mutual insurers to file a schedule of amounts they or their affiliates charged for providing the option

to pay premiums in installments. Accordingly, the trial court erred in declaring that the installment

fees are charges covered by former article 17.25, section 6.

               This interpretation is consistent with the regulatory structure implemented by the

Department of Insurance. Since 1992, the Department has required auto insurers other than county

mutual insurers to offer an installment payment plan pursuant to Rule 14 of the Texas Automobile

Rules and Rating Manual. Rule 14 was made applicable to county mutual insurers in 1997 pursuant

                                                  12
to Personal Auto Policy (“PAP”) Special Instruction No. 11, which is part of the policy form that

county mutual insurers are required to use in Texas. Rule 14 both requires auto insurers to make an

installment payment plan available to policyholders and expressly allows the insurers to charge a

regulated fee for making the plan available. It is undisputed that Farmers and USAA were in

compliance with Rule 14 during all relevant time frames.

               Former article 17.25, section 6 was in force at the time Rule 14 was originally

promulgated and at the time that the Department of Insurance made Rule 14 applicable to county

mutual insurers. The Department of Insurance has never taken the position that the fees authorized

by Rule 14 were required to be filed pursuant to former article 17.25, section 6 or its successor

section 912.201. It is undisputed that the Department has been responsible for the enforcement of

former article 4860a-20, section 2a(d), former article 17.25, section 6, and current section 912.201

since 1947 and that the Department has never required a county mutual insurer to file the amount

of a service charge for an installment payment plan pursuant to these statutes. The Department

has a specific regulatory scheme with respect to installment payment plans and the fees insurers

are allowed to charge with respect to those plans. The Department does not consider former

article 17.25, section 6 and its successor section 912.201 part of that regulatory scheme.

“Construction of a statute by the administrative agency charged with its enforcement is entitled

to serious consideration, so long as the construction is reasonable and does not contradict the

plain language of the statute.” Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993);

see State v. Public Util. Comm’n of Tex., 883 S.W.2d 190, 196 (Tex. 1994) (“[T]he

contemporaneous construction of a statute by the administrative agency charged with its enforcement



                                                13
is entitled to great weight.”); Texas Employers’ Ins. Ass’n v. Holmes, 196 S.W.2d 390, 395

(Tex. 1946) (“[T]he practical interpretation of the Act by the agency charged with the duty of

administering it is entitled to the highest respect from the courts.”); Stanford v. Butler, 181 S.W.2d

269, 273 (Tex. 1944) (“The contemporaneous construction of an act by those who are charged

with the duty of its enforcement . . . is worthy of serious consideration as an aid to interpretation,

particularly where such construction has been sanctioned by long acquiescence.” (quoting 39 TEX .

JUR. Statutes § 125 (1936))). The Department of Insurance’s practical construction of former article

17.25, section 6 and its regulatory scheme for dealing with premium installment payment

plans including the charges for those plans are consistent with the language of the statute and entitled

to serious consideration. Nothing in the language of former article 17.25, section 6 requires

the adoption of an interpretation inconsistent with the interpretation and practice of the Department

of Insurance.

                The Department of Insurance continued its regulatory scheme relating to premium

installment payment plans and did not require schedules of charges for those plans to be filed even

after former article 17.25, section 6 was replaced by section 912.201. The Department’s treatment

of the statute before and after the 2003 recodification process was the same. This is, of course,

consistent with the proposition that the recodification process did not make a substantive change.

See Tex. Ins. Code Ann. § 30.001(a). However, the question of whether the recodification of article

17.25, section 6—now section 912.201—did, in fact, involve a substantive change (even if

inadvertent) to now require that the installment payment plan charges at issue are subject to filing

requirements raises an additional issue.



                                                  14
               Romo and Ratcliffe point to the language of the recodified statute and argue that the

recodified version requires county mutual insurers to file a schedule of any amount that the company

charges a policyholder or applicant for a policy regardless of what the charge is for. Romo and

Ratcliffe rely on the following language in section 912.201:


       A county mutual insurance company shall file with the Department a schedule of the
       amounts the company charges a policyholder or an applicant for a policy, regardless
       of the term the company uses to refer to those charges . . . .


Id. § 912.201. This language is, from a grammatical standpoint, a structural change from the

language of former article 17.25, section 6. It uses essentially the same words, but moves the clauses

around in a way that allows for an argument that, whether deliberate or not, the meaning of the

statute was changed in the recodification process. See Fleming Foods of Tex., Inc. v. Rylander, 6

S.W.3d 278, 286 (Tex. 1999) (when specific provisions of a “nonsubstantive” codification are direct,

unambiguous, and cannot be reconciled with prior law, the codification rather than the prior,

repealed statute must be given effect). The reshuffling of the clauses in the statute certainly alters

the clear statement in former article 17.25, section 6 that limited the charges covered to two

specific categories—(1) a rate, and (2) an initial charge for a policy (by whatever name called). The

structure of the recodified statute provides less clear guidance as to what charges are covered and

what charges are not.

               On its face, the new language could conceivably be read as requiring county mutual

insurers to file a schedule of any amount they charge policyholders (or applicants for policies) for

literally anything. However, there are a number of problems with this construction. If read to apply



                                                 15
to any charge, the statute would cover any type of charge by an insurance company—whether or not

the charge was related to the insurance policy or the insurance relationship—simply because the

person charged also happened to be a policyholder or an applicant for a policy. For example, there

would be nothing to limit the statute’s application to amounts a company might charge a person for

renting a piece of property owned by the company, or for amounts the company might charge for

using a company parking garage if the person charged also happened to be a policyholder. Such an

extraordinarily broad reading of the statute would be possible, but not reasonable.

               The legislature plainly intended the statute to require county mutual insurers to file

amounts that they charge “a policyholder” or “an applicant for a policy” that relate to the policy of

insurance.6 This is evidenced by the fact that the list of examples of charges “included” under the

statute’s coverage are all charges tied to the purchase of the insurance policy—rate, policy fee,

inspection fee, membership fee, or initial charge. “Includes” is a term of enlargement and not of




       6
          Farmers and USAA argue that the language of section 912.201 mandates this interpretation
because the codified version of the statute should be read in such a way that the words “for a policy”
modify the term “charges” rather than the term “applicant.” This grammatical maneuver would
make the statute literally apply only to charges “for a policy” made to a policyholder or an
“applicant” as opposed to any charge (unconstrained by modifying language) an insurer might make
to a policyholder or an “applicant for a policy.” However, the history of the text of section 912.201
does not support this reading. Former article 17.25, section 6 applied to amounts “to be charged
policyholders or those applying for policies.” The nonsubstantive revision represented by section
912.201 uses the phrase “amounts the company charges a policyholder or applicant for a policy.”
It is apparent that the codifiers were attempting to follow their statutory mandate to restate the law
“in modern American English to the greatest extent possible,” and replaced the phrase “those
applying for policies” with the phrase “applicants for policies.” See Tex. Ins. Code Ann. § 30.001(b)
(West 2007). Whether the replacement improved or modernized the English in the statute is
debatable. However, it is more reasonable—in light of the fact that the 2003 codification of article
17.25, section 6 was intended to be nonsubstantive—to read the phrase “for a policy” to be
associated with the term “applicant” rather than the term “charges.”

                                                 16
limitation or exclusive enumeration and does not create a presumption that components not

expressed are excluded. Tex. Gov’t Code Ann. § 311.005(13) (West 2005). However, the principle

of statutory construction known as ejusdem generis limits the breadth of general terms in a statute

when the statute gives examples or a list of what is intended to be covered. “[W]hen words of a

general nature are used in connection with the designation of particular objects or classes of persons

or things, the meaning of the general words will be restricted to the particular designation.” See

State v. Fidelity & Deposit Co. of Md., 223 S.W.3d 309, 312 (Tex. 2007) (quoting Hilco Elec. Coop.

v. Midlothian Butane Gas Co., 111 S.W.3d 75, 81 (Tex. 2003)). In other words, the principle of

ejusdem generis directs that the term “charges” as used in section 912.201—since it is used generally

without any definition—be interpreted to include only charges of the same kind, class, or nature as

the types of charges listed in the statute. Id.

                In addition, reading the statute to include charges that have nothing at all to do with

the insurance policy arguably runs afoul of the principle of statutory construction that we consider

the consequences of a particular construction and not construe a statute in a manner that will produce

absurd results. Tex. Gov’t Code Ann. § 311.023 (West 2005); see Fleming Foods, 6 S.W.3d at 284;

see also State v. Hodges, 92 S.W.3d 489, 494 (Tex. 2002). To construe the statute to apply to any

and all charges an insurer might make to a policyholder regardless of whether those charges relate

to the insurance policy—e.g. parking garage fees for visitors to the company’s building who happen

to be policyholders or cafeteria charges to employees who use the company’s cafeteria and are also

policyholders—would lead to absurd and plainly unintended results. As the Texas Supreme Court

noted in State v. Hodges, the construction of the statute advocated by Hodges in that case was



                                                  17
linguistically possible, but it was not reasonable nor required by the statute’s language, and the court

declined to adopt it. 92 S.W.3d at 495. Similarly, here it is possible to construe the recodified

statute as applying to charges made by an insurer regardless of their connection to the policy of

insurance, but such a construction is not reasonable in light of the purpose of the statute, the history

of the statute, the text read as a whole, the regulatory scheme in place addressing the charges at issue,

and the potential consequences of such a broad construction. Thus, given the history and text of

section 912.201, we are of the view that it should be interpreted to include only those charges that

are of the same kind, class, or nature as a rate, policy fee, inspection fee, membership fee, or initial

charge.

                Another problem with the construction advocated by Romo and Racliffe is that it runs

counter to the stated legislative intention that the 2003 codification be without substantive change.

Tex. Ins. Code Ann. § 30.001(a). The Plaintiffs’ construction would necessarily entail a dramatic

change in this statute—a change at odds with the Department of Insurance’s regulatory enforcement

of the statute. It would involve changing the charges covered from two specific categories that are

expressly associated with the policy of insurance to anything an insurer might find itself charging

a policyholder, whether the charge relates to the insurance relationship or something else altogether.

Such an inadvertent change is certainly possible, as demonstrated by Fleming Foods of Texas, Inc.

v. Rylander, 6 S.W.3d 278 (Tex. 1999). The court held in that case that if the change occurs in clear,

unambiguous language in the recodified version of the statute, we are obligated to enforce the statute

as written and give effect to the intention of the legislature as expressed in the unambiguous words

of the statute unless there is an obvious error, such as a typographical error, or application of the



                                                   18
literal language of the statute would produce an absurd result. Fleming Foods, 6 S.W.3d at 284-85.

The change in the statute at issue here, however, is not the same sort of change that the court was

faced with in Fleming Foods. Here, the change in the structure of the statute does not dictate a single

construction that is so clear, unambiguous, and without absurd result that we are compelled to give

it effect. Rather, the recodified statute, while conceivably subject to the construction advocated by

the Plaintiffs, can be and is more reasonably construed in a more limited fashion when read as a

whole with appropriate principles of statutory construction applied.

               Construing section 912.201 to apply to charges that are of the same kind, class, or

nature as a rate or an initial charge for a policy has the benefit of reconciling the history of the

statute, the Department of Insurance’s regulatory view of the statute, the existence of a specific,

separate regulatory structure to deal with the installment payment plan fees at issue, and the fact that

the codification of section 912.201 was intended to be done without substantive change. The

Plaintiffs’ construction would put these various factors in conflict and create unnecessary problems

in the enforcement and application of section 912.201. Consequently, we hold that section 912.201,

as currently formulated, applies to charges made by county mutual insurers that are of the same kind,

class, or nature as a rate or an initial charge for a policy regardless of what that charge is called.

As noted previously, the installment payment plan fees at issue in this case are not such a charge.

Accordingly, the trial court erred in declaring that the installment fees are charges covered by

section 912.201.




                                                  19
Conclusion

               Our conclusion that former article 17.25, section 6 and its successor section 912.201

do not apply to the installment payment plan fees at issue in this case effectively moots any question

regarding the application of the filed rate doctrine, and we do not reach that issue. We reverse

declarations 1, 2, and 3 in the Final Declaratory Judgment entered by the district court in this cause

and hold as follows:


       1.      The fees charged by Farmers Texas County Mutual Insurance Company and
               USAA County Mutual Insurance Company for making an installment
               payment plan available for the payment of premiums on automobile insurance
               policies are not charges covered by Texas Insurance Code section 912.201 or
               its predecessor, former Texas Insurance Code article 17.25, section 6, and are
               not required to be filed with the Texas Department of Insurance pursuant to
               those statutes; and

       2.      The collection of the service charges from Plaintiffs Irene Romo and Fenn
               Ratcliffe by Farmers Texas County Mutual Insurance Company and USAA
               County Mutual Insurance Company, respectively, for providing an
               installment payment plan for the automobile insurance premiums paid by
               Plaintiffs Irene Romo and Fenn Ratcliffe is not prohibited by law for failure
               of Farmers Texas County Mutual Insurance Company and USAA County
               Mutual Insurance Company to have filed a schedule of such charges with the
               Department of Insurance pursuant to Texas Insurance Code section 912.201
               or its predecessor, former Texas Insurance Code article 17.25, section 6.


               Our holding is limited to the legal questions of (1) the construction of section

912.201 and its predecessor as stated and (2) whether the charges at issue are subject to the filing




                                                 20
requirements of those statutes. We offer no opinion as to the propriety of the charges in any other

context or with respect to any other law.




                                             __________________________________________

                                             G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed in part; Reversed and Rendered in part

Filed: April 15, 2008




                                                21
