Summary
The Nebraska Supreme Court affirmed a district court judgment upholding the Nebraska Department of Insurance’s administrative fine against Mark Diamond, a licensed insurance producer. The court held that Diamond violated the reporting requirement for failing to report a civil action within 30 days and that his confession of liability in a consent judgment constituted an admission of fraud under the Insurance Producers Licensing Act.
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Practice areas
Questions Presented
- Whether Diamond violated Neb. Rev. Stat. § 44-4065(1) by failing to report the Colorado civil action and consent judgment within 30 days of its final disposition.
- Whether Diamond's confession of liability in the Colorado consent judgment constituted an admission of fraud under Neb. Rev. Stat. § 44-4059(1)(g).
- Whether the district court's affirmance of the Department of Insurance's disciplinary order was supported by law and competent evidence and was neither arbitrary, capricious, nor unreasonable.
Holdings
- An insurance producer violates § 44-4065(1) by failing to report a civil action taken against the producer in another jurisdiction within 30 days of the action's final disposition, regardless of whether the underlying action was predicated on fraud. Diamond violated the reporting requirement by failing to report the Colorado consent judgment.
- Under § 44-4059(1)(g), fraud by an insurance producer includes any act, omission, or concealment involving a breach of legal or equitable duty, trust, or confidence justly reposed that is injurious to another or takes an undue and unconscientious advantage of another.
- Diamond's confession of liability to the MARS Rule count constituted an admission of fraud within the meaning of § 44-4059(1)(g), even though the count did not expressly use the word "fraud" and Diamond did not specifically admit to fraud.
- The district court correctly affirmed the Department of Insurance's order imposing the administrative fine because the decision conformed to law, was supported by competent evidence, and was neither arbitrary, capricious, nor unreasonable.
Key quotations
“We hold that under § 44-4065, if an insurance producer fails to report a civil action taken against the producer in another jurisdiction, within 30 days of the final disposition of the civil action, the producer violates the reporting requirement of § 44-4065(1).” (302 Neb. at 899)
“We hold that under § 44-4059(1)(g), “fraud” of an insurance producer means any act, omission, or concealment which involves a breach of legal or equitable duty, trust, or confidence justly reposed, and injurious to another or by which an undue and unconscientious advantage is taken of another.” (302 Neb. at 902)
“Accordingly, the district court did not err when it determined that Diamond admitted to fraud in violation of § 44-4059(1)(g).” (302 Neb. at 903)
Factual background
Mark Diamond was a licensed insurance producer and chief executive officer and president of Bella Homes, LLC. In a Colorado federal civil action concerning a mortgage-assistance and foreclosure-rescue scheme, Diamond entered a stipulated consent judgment and permanent injunction in which he confessed liability to counts alleging violations of the MARS Rule, including misrepresentations about mortgage-assistance services. Diamond did not report the Colorado consent judgment to the Nebraska Department of Insurance within 30 days of its final disposition. The Department found statutory violations and imposed a $2,500 administrative fine, which the Lancaster County District Court affirmed.
Procedural history
The Nebraska Department of Insurance determined that Diamond violated statutory reporting and producer-conduct provisions after he failed to report a Colorado consent judgment within 30 days and had confessed liability in litigation involving a fraudulent mortgage-assistance scheme. The district court affirmed the Department's order. On appeal, Diamond contested only whether his confession of liability constituted an admission of fraud under Neb. Rev. Stat. § 44-4059(1)(g).