INSURANCE RATING BOARD & others vs. COMMISSIONER OF INSURANCE.

SPIEGEL, J. These are proceedings brought by the Insurance Rating Board (board), the Mutual Insurance Rating Bureau (bureau) and several insurance companies to determine whether the Commissioner of Insurance (commissioner) had authority to "freeze" certain automobile insurance rates. One is a suit for declaratory relief. The other two proceedings are under G. L. c. 175, Section 113B, and

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G. L. c. 175A, Section 19. The proceedings were reserved and reported by the single justice without decision upon the pleadings and a statement of agreed facts.

The board and the bureau are associations of insurance companies. They are rating organizations licensed under G. L. c. 175A to file rates with the commissioner, on behalf of their members and subscribers, for various kinds of insurance, including automobile property damage liability insurance. [Note 1] They have in the past made "rate filings" for automobile property damage liability insurance.

Statute 1968, c. 643, was approved on July 16, 1968. Section 2A of that act directed the commissioner to "fix and establish the same classifications of risks and the same basic premium charges or lesser charges . . . in connection with the issue or execution of motor vehicle liability policies or bonds, both as defined in . . . [G. L. c. 90, Section 34A] as he fixed and established . . . for . . . [1967]." Section 3 of the act amended G. L. c. 175, Section 113C, to require insurance companies authorized to issue compulsory bodily injury liability coverage policies or bonds "to issue to any person purchasing such policy or bond, at his option, additional coverage . . . of property damage, so called, to a limit of at least five thousand dollars. The rates for such additional coverage shall be subject to the approval of the commissioner, under the provisions of . . . [Section 113B]." [Note 2]

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On October 14, 1968, the effective date of St. 1968, c. 643, the board and the bureau "made . . . rule filing[s] covering the rating of the additional property damage liability coverage described in G. L. c. 175, Section 113C, as amended by St. 1968, c. 643, Section 3." The rating rules provided that the rates for such coverage would be the rates shown in the "Massachusetts Automobile Property Damage Manual." These filings were approved by the commissioner and were effective as of October 14, 1968.

On November 25, 1968, the commissioner filed in his office a "Memorandum in Regard to Classifications of Risks and Schedule of Premium Charges for Motor Vehicle Liability Policies or Bonds as Defined in . . . [G. L. c. 90, Section 34A] for the Year 1969, and Property Damage Liability . . . Coverage." The commissioner purported to "establish and promulgate" for 1969 the classifications of risks, premium charges and rules and regulations applicable to "motor vehicle liability policies or bonds" as defined in G. L. c. 90, Section 34A, which were in effect for 1967. He also purported to "establish, reaffirm and approve" for 1969 the classifications of risks, premium charges and rules and regulations applicable to automobile property damage liability insurance (as defined by G. L. c. 175, Section 113C, as amended by St. 1968, c. 643, Section 3) which were in effect for 1967.

On December 26, 1968, the board and the bureau each

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delivered to the commissioner purported filings regarding automobile property damage liability insurance. Each filed separately under G. L. c. 175A and under G. L. c. 175, Section 113C. The commissioner returned the documents, stating that they were "inconsistent with . . . [his] Memorandum and Order of November 25, 1968."

1. The commissioner contends that the rate "freeze" provision of St. 1968, c. 643, Section 2A, applies to automobile property damage liability insurance. He argues that the Legislature, when it used the words "policies or bonds" as opposed to "coverage" (compare St. 1968, c. 643, Section 2A with St. 1968, c. 643, Section 3) intended the words "policies or bonds" to include all coverages contained in policies or bonds which contain the compulsory bodily injury liability coverage, and not just the compulsory bodily injury liability coverage. He assigns a similar meaning to the same words in G. L. c. 175, Section 113B, and asserts that under that section, prior to the passage of c. 643, "he had the power theoretically" to fix and establish the rates for all coverages included with the compulsory bodily injury liability coverage in a single policy or bond.

We think that the words must be limited to the compulsory bodily injury liability coverage under G. L. c. 90, Section 34A. In Benoit v. Fisher, 341 Mass. 386, 388, this court stated that the requirements of G. L. c. 175, Section 113A (2), did not apply to property damage coverage. Similarly in Lodge v. Bern, 328 Mass. 42, 43-44, the provision of G. L. c. 175, Section 113A, which forbids exceptions or exclusions from the compulsory coverage was said to have "no application to the coverage in excess of the required $5,000." In both cases, this court limited the words "motor vehicle liability policy as defined in . . . [G. L. c. 90, Section 34A]" as they appear in Section 113A to the compulsory bodily injury liability coverage. See also Macheras v. Syrmopoulos, 319 Mass. 485, 486-487. The words there are essentially the same words as the Legislature used in St. 1968, c. 643, Section 2A, and G. L. c. 175, Section 113B, as amended by St. 1968, c. 643, Section 2. Where the Legislature uses the same words in several sections which

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concern the same subject matter, the words "must be presumed to have been used with the same meaning in each section." Liddell v. Standard Acc. Ins. Co. 283 Mass. 340, 346. The commissioner was neither required nor authorized by St. 1968, c. 643, Section 2A, to "freeze" the automobile property damage liability insurance rates.

2. General Laws c. 175, Section 113C, as amended by St. 1968, c. 643, Section 3, requires the insurance companies "to issue to any person purchasing . . . [compulsory bodily injury liability coverage], at his option, additional coverage . . . of property damage . . .." The board and the bureau contend that Section 113C does not apply to everyone who purchases the automobile property damage liability coverage. Apparently focusing on the words "at his option," they argue that if the insurance company willingly offers the insured the automobile property damage liability coverage, "no statutory compulsion is needed, no option is exercised, and the rates for such additional coverage are governed by G. L. c. 175A."

We do not agree. The board and the bureau admit that the class of risks to which they argue Section 113C applies is quite small and may, in fact, be nonexistent. We think that if their interpretation of the section were adopted, the class would be nonexistent, for then an insurance company would need only to always "voluntarily" offer such coverage to all persons purchasing the compulsory bodily injury liability coverage in order to avoid the rates requiring the commissioner's prior approval under Sections 113B and 113C. An intention to enact a barren and ineffective provision is not lightly to be imputed to the Legislature. Allen v. Cambridge, 316 Mass. 351. Selectmen of Topsfield v. State Racing Commn. 324 Mass. 309. We believe that the words "at his option" signify nothing more than a desire by the Legislature to make clear that, although the insurance companies issuing compulsory bodily injury liability coverage are required to offer certain automobile property damage liability coverage, the insured is not required to purchase it. We conclude that the Legislature intended the provisions of G. L. c. 175,

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Section 113C, as amended by St. 1968, c. 643, Section 3, to apply to all policies and bonds containing the compulsory bodily injury liability coverage to the extent set out in part 3 of this opinion.

3. The board and the bureau contend that this interpretation of Section 113C "is unconstitutional because it makes unreasonable distinctions among insurance companies writing automobile property damage liability insurance." The distinction, however, is not a distinction between insurance companies but a distinction as to insurance policies. Section 113C requires companies issuing policies or bonds containing the compulsory bodily injury liability coverage to offer in the same policies or bonds certain optional coverage. It also requires that the rates for "such additional coverage," the optional automobile property damage liability coverage, included with the compulsory bodily injury liability coverage be approved by the commissioner. It does not prohibit insurance companies which issue policies or bonds containing the compulsory bodily injury liability coverage from offering, independent of the compulsory bodily injury liability coverage, automobile property damage liability insurance. Nor does it make the rates for such independent automobile property damage liability insurance or the rates for automobile property damage liability coverage in excess of the required amount subject to the approval of the commissioner. General Laws c. 175, Section 113C, applies only to automobile property damage liability insurance up to and including $5,000 which is offered in conjunction with the compulsory bodily injury liability coverage. The companies issuing policies or bonds that include the compulsory bodily injury liability coverage are free to file under G. L. c. 175A with regard to the excess or independent automobile property damage liability coverage.

4. The board and the bureau also contend that the filings they tendered under G. L. c. 175, Section 113C, on December 26, 1968, were "unnecessary." They maintain that because the rate rulings filed on October 14, 1968, adopted for Section 113C coverage the rates "shown . . . in the Massachusetts Automobile

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Property Damage Manual" (as opposed to the rates shown in the present manual), the filings tendered on December 26, 1968, under G. L. c. 175A, by establishing the rates shown in the manual, apply also to Section 113C coverage.

In effect, the board and the bureau contend that in approving the rules filed on October 14, 1968, the commissioner "repealed" the provision of Section 113C which requires his approval of rates under Section 113B and returned the rate setting procedure to c. 175A, where it had been prior to the enactment of St. 1968, c. 643, Section 3. We do not think that the commissioner intended such a result. In any event, he lacked the authority to adopt or approve any rule directly contrary to the statute under which he acted.

5. General Laws c. 175, Section 113C, as amended by St. 1968, c. 643, Section 3, states that the rates "shall be subject to the approval of the commissioner, under the provisions of . . . [Section 113B]." [Note 3] We are of opinion that the Legislature intended the entire procedure established in the first paragraph of Section 113B to apply to Section 113C. The insurance companies, their associations or both may file with the commissioner suggested rates. The commissioner is to conduct hearings and investigations. Then, on or before September 15, the commissioner is to fix and establish or approve "adequate, just, reasonable and nondiscriminatory" rates. These rates would then be in effect "the ensuing calendar year or any part thereof."

It seems clear that the Legislature intended the commissioner to have adequate time to investigate the rates filed by the insurance companies prior to their effective date. In the instant case the rates were filed on December 26, 1968. The commissioner was afforded less than four working days before the "ensuing calendar year" when the rates were to be effective. We realize, of course, that c. 643 was not enacted in time for the procedure outlined in Section 113B to be followed. Nevertheless, the time during which the commissioner could act under Section 113B was certainly not adequate. It seems to us that the board and the bureau need not have

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waited over five months from the date of the enactment of the legislation and over two months from its effective date before filing their rates. Although the commissioner could have acted subsequent to September 15, 1968 (see Doherty v. Commissioner of Ins. 328 Mass. 161, 163), we think he was justified in rejecting the filings made under Section 113C and thus re‰stablished for the ensuing year the rates then in effect with regard to the Section 113C coverages.

6. In the suit for declaratory relief, a final decree is to be entered declaring (1) that the provisions of St. 1968, c. 643, Section 2A, apply only to the compulsory bodily injury liability coverage under G. L. c. 90, Section 34A, and that the commissioner's memorandum of November 25, 1968, in so far as it purports to apply to coverages other than the compulsory bodily injury liability coverage under G. L. c. 90, Section 34A, is of no effect; (2) that the board and the bureau were entitled during 1968, and in 1969 and 1970 are entitled to make filings under G. L. c. 175A relative to all automobile property damage liability coverage not subject to G. L. c. 175, Section 113C; and (3) that the board and the bureau were and are entitled during the same years to make filings subject to G. L. c. 175, Section 113C, relative to automobile property damage liability coverage to a limit of at least $5,000 which is offered to the insured as part of a policy or bond which also includes the compulsory bodily injury liability coverage under G. L. c. 90, Section 34A.

In the proceedings under G. L. c. 175, Section 113B, and G. L. c. 175A, Section 19, decrees are to be entered ordering the commissioner to accept the filings tendered by the board and the bureau on December 26, 1968, under G. L. c. 175A, said filings to be effective as of December 31, 1968, applicable to automobile property damage liability coverage in excess of the $5,000 amount required by Section 113C and to automobile property damage liability coverage offered independent of the compulsory bodily injury liability coverage, and subject to the provisions of G. L. c. 175A, Sections 6 and 7. [Note 4]

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CUTTER, J. (concurring) I concur in parts 1 through 4 of the opinion and in the results stated in part 6. My concurrence in the result reached in part 5 of the opinion, is on the following grounds: (a) The Commissioner, by his order of November 25, 1968, purported to establish for 1969 automobile property damage rates for the purposes of, and to the extent set out in, G. L. c. 175, Section 113C, as amended by St. 1968, c. 643, Section 3. Although the meaning of the final sentence of Section 113C, as amended by Section 3 of the 1968 statute, is uncertain in various respects, I interpret the sentence as intended to make all the procedures under Section 113B applicable to the determination and review of rates under Section 113C, as amended. (b) Section 113B permits review of the Commissioner's orders under that section "within twenty days from the filing of . . . [the] memorandum thereof in his office," by a petition for review filed in the county court. The only proceeding initiated within twenty days after November 25, 1968, was the petition for declaratory relief mentioned in the first paragraph of the opinion (seasonably filed on December 16, 1968, because December 15 was a Sunday; see G. L. c. 4, Section 9). Paragraph 22 of that petition reads, "The petitioners seek declaratory relief under G. L. c. 231A and, insofar as the memorandum of November 25 constitutes on order or other action of the Commissioner which may be appealed to this Court, under G. L. c. 175, s. 113B or under any other provisions of the General Laws, the petitioners also appeal therefrom" (emphasis supplied). (c) Even if it be assumed that this petition constitutes a proper petition for review under Section 113B, the question of review of the Commissioner's action of November 25, 1968, as action establishing automobile property damage rates for 1969, does not appear to have been argued in the brief for the petitioners. Accordingly, I conclude that that type of review is not now sought and has been abandoned. See S. J. C. Rule 1:13 ( 351 Mass. 738 ).