So many courts are approaching the threshold of applying the filed rate doctrine to insurance regulation, or outright applying the FRD to insurance rate filings, that a recent ruling by the District of Columbia Circuit Court of Appeals is worth adding to insurance lawyers' trial notebooks.
The filed-rate decision did not come in an insurance case. The filed-rate decision came in a case in which a federal agency, the Federal Energy Regulatory Commission, tried in 2020 to retroactively waive a filing requirement after a regulated entity had already made its rate filing. Clearly, FERC and the regulated entity wanted to overlook noncompliance with a legal requirement governing the rate filing.
The D.C. Circuit said that FERC simply could not do that. Decisions of that kind were simply not allowed to it. FERC had never been given the authority by statute to do anything but accept rate filings just as the parties making them, filed them.
"Once a tariff is filed, the Commission has no statutory authority to provide equitable exceptions or retroactive modifications to the tariff." Okla. Gas & Elec. Co. v. Fed. Energy Reg. Comm'n, Nos. 20-1062 & 20-1101 (consolidated), 2021 WL 3821873, at *1 (D.C. Cir. August 27, 2021).
By a parity of reasoning, as they say, once an insurance tariff is filed, most State Insurance Commissioners have no statutory authority to provide equitable exceptions or retroactive modifications to the tariff that any entity files. Most are simply not allowed to do that. This is a decision to add to every insurance lawyer's trial notebook.
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