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20
Cal. App. 4th 760, *;
1993 Cal. App. LEXIS 1186, **; 25
Cal. Rptr. 2d 192, ***;
93 Cal. Daily Op. Service 8746 No.
B070317. COURT
OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT DISTRICT, DIVISION FIVE 20
Cal. App. 4th 760; 1993 Cal. App. LEXIS 1186; 25 Cal. Rptr. 2d 192; 93 Cal.
Daily Op. Service 8746; 93 Daily Journal DAR 14926 November
24, 1993, Decided NOTICE:
[**1] Opinion certified for
partial publication. *
*
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is
certified for publication with the exception of part II of the Discussion.
PRIOR HISTORY: Superior Court of Los Angeles County, No. BC057551,
Robert H. O'Brien, Judge. DISPOSITION: The order granting a preliminary injunction is affirmed. Appellants
shall bear respondent's costs on appeal. CASE
SUMMARY
CORE TERMS: preliminary injunction, concurrent jurisdiction,
repair, consumer, plea in abatement, demurrer, abatement, mandatory, management
fee, temporary restraining order, service fee, cease-and-desist, violating,
affirmative relief, motion to transfer, injunction, issuance, nonadmitted
insurer, insurance business, countervailing, injustice, reversal, cease and
desist order, jurisdictional, applicability, issuing, annual, brokers, permanent
injunction, action pending CORE
CONCEPTS -
COUNSEL:
Rosner
& Goodman and Dennis Neil Jones for Defendants and Appellants. Daniel
E. Lungren, Attorney General, Edmond B. Mamer and Richard W. Bakke, Deputy
Attorneys General, for Plaintiff and Respondent. JUDGES:
Opinion by Grignon, J., with Turner, P. J., concurring. Separate concurring
opinion by Armstrong, J. OPINIONBY:
GRIGNON, J. OPINION:
[*764] [***194]
Defendants
and appellants American Autoplan, Inc., Nicholas Neu and Bruce Virga appeal from
an order of the Los Angeles Superior Court issuing a preliminary injunction
requested by plaintiff and respondent State of California, acting through the
Insurance Commissioner, John Garamendi (the Commissioner). Appellants sought
declaratory relief in Riverside Superior Court in connection with a
cease-and-desist [**2] order of the
Commissioner. Thereafter, the Commissioner sought injunctive relief in the Los
Angeles Superior Court in connection with the same cease-and-desist order. The
Commissioner's application for a preliminary injunction was granted by the Los
Angeles Superior Court. Appellants contend the Los Angeles Superior Court was
without jurisdiction to issue the preliminary injunction under the rule of
exclusive concurrent jurisdiction. Alternatively, they argue that the injunction
was not properly issued on the merits. In the
published portion of this opinion (pt. I), we discuss the rule of exclusive
concurrent jurisdiction. We conclude the rule of exclusive concurrent
jurisdiction is a judicial rule of priority or preference and is not [*765]
jurisdictional in the traditional sense of the word. We also conclude that the
rule of exclusive concurrent jurisdiction is properly raised by demurrer or
answer and requires a stay of the action; the rule of exclusive concurrent
jurisdiction is not a defense to an application for a preliminary injunction.
Accordingly, the trial court did not lack jurisdiction to issue the preliminary
injunction. In the unpublished portion of this opinion [**3]
(pt. II), we discuss the merits of the preliminary injunction and conclude the
trial court properly issued the injunction. We affirm. FACTS
AND PROCEDURAL BACKGROUND In 1986,
Neu and Michael Gershuney were officers of a Delaware corporation, Automobile
Maintenance Contracts, Inc. (AMC), engaged in the business of selling automobile
repair contracts. By 1987, AMC had sold approximately 8,000 automobile repair
contracts in Southern California. After an assistant commissioner for the
California Department of Insurance opined that the automobile repair contracts
were contracts of insurance, Neu and Gershuney moved to Northern California and
operated a similar business called American Maintenance Contracts, Inc. (AMC-2).
On May
18, 1988, the Commissioner filed suit in Los Angeles Superior Court (case No.
680646) against Neu, AMC, Gershuney and others. The Commissioner requested an
injunction arguing that AMC, Neu and Gershuney [***195]
were violating the insurance laws by transacting an insurance business without
first being admitted as an insurer in California and without obtaining a
certificate to that effect; acting as an agent for a nonadmitted insurer;
advertising for a nonadmitted [**4]
insurer; and aiding a nonadmitted insurer to transact business in California.
(Ins. Code, § 700, 703.) A preliminary injunction was requested to require
appellants to refrain forthwith from selling any contract which violated
Insurance Code sections 700 and 703. A preliminary injunction was issued on May
18, 1988, and affirmed on appeal in People ex rel. Gillespie
v. Neu (1989) 209 Cal.App.3d 1066 [257 Cal.Rptr. 778]. n1 Thereafter,
Neu and Gershuney executed a December 1991 stipulation for judgment of permanent
injunction, which resolved case No. 680646. In this stipulation, Neu and
Gershuney denied violating the Insurance Code and agreed to refrain from
violating it in the future. A judgment of permanent injunction was thereafter
entered. - - - -
- - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 This
case was brought by the former Insurance Commissioner, Roxani Gillespie. We have
taken judicial notice of this case. - - - -
- - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*766]
In
January 1989, Neu, Virga and American Autoplan, Inc. (formerly American
Automobile Plan, Inc.) n2 began [**5]
selling automobile repair contracts similar to those previously sold by AMC. n3
Neu was president of American Autoplan and Virga was vice-president. American
Autoplan's repair facility was located in Riverside. The automobile repair
contracts were sold as a part of a "physical damage automobile repair cost
containment and insurance fraud prevention program" through insurance
agents and brokers and underwritten by nonadmitted carriers. Appellants
solicited licensed insurance agents and brokers in California to sell the
automobile physical damage benefits provided by American Autoplan; furnished and
accepted applications from California agents or brokers; processed the
applications; issued the contracts evidencing coverage; invoiced and collected
premiums; and paid claims. - - - -
- - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2
American Autoplan is a California corporation incorporated on April 1, 1988. n3 For a
description of the AMC program see People ex rel. Gillespie
v. Neu, supra, 209 Cal.App.3d 1066. - - - -
- - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Consumers
learned [**6] of the program through
radio advertisements, from the lienholder on their vehicles or from their
insurance agents or brokers. Many purchasers never received copies of the
agreements. The program included two contracts: the automobile repair contract
and a standard automobile liability insurance policy accompanied by a modified
dual interest policy. Consumers paid an annual rate for the program which
included the annual management fee for the automobile repair contract and the
insurance premium. The premium for the insurance policy was sent by American
Autoplan to Atlas Indemnity and Insurance Company, Ltd. The program covered loss
to vehicles for comprehensive perils, such as fire, theft, earthquake,
windstorm, rising water and vandalism and collision. American Autoplan also is a
group policy holder of an automobile liability policy for its consumers. Under
the automobile repair contract, American Autoplan is appointed by the consumer
as the consumer's exclusive manager and attorney-in-fact for all matters
relating to repair of the consumer's automobile and as the exclusive repairer of
the automobile. The contract requires the consumer to have repair work done at
American Autoplan's [**7] Riverside
repair facility. Consumers pay an annual management fee for the automobile
repair contract which is similar to an insurance premium. Consumers also pay a
service fee for each repair. The service fee is similar to an insurance
deductible and is selected from three options, $250, $500, or $1,000. The
service fee bears the same relation to the management fee as a deductible bears
to a premium, i.e., the higher the service fee the lower the management fee.
[*767] A repair
under the automobile repair contract has the following economic consequences: [***196]
(1) The annual management fee may be applied at American Autoplan's option to
the cost of repair; (2) The
consumer pays American Autoplan the applicable service fee; (3) The
consumer assigns to American Autoplan third party recoveries up to the amount of
the cost of repair; (4) If
the sum of the management fee, the service fee and third party recovery does not
equal the cost of repair, the consumer agrees to pay the annual management fee
for up to three years; (5)
American Autoplan is reimbursed for any excess cost by the proceeds of the
companion insurance policy; (6) If
the companion insurance policy [**8]
fails to reimburse American Autoplan for any excess costs, American Autoplan has
the right to demand the excess from the consumer. However, in practice,
consumers were not charged for such excess repair costs; and (7) Any
amounts received by American Autoplan in excess of the repair costs are retained
by American Autoplan. American
Autoplan has sold tens of thousands of contracts to California residents since
1989, generating millions of dollars. The Commissioner received over 100
complaints from American Autoplan's contract holders for: shoddy repairs;
lengthy delays in making repairs; and substantial delays in making settlements
and in paying refunds when contracts were cancelled. n4 - - - -
- - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 For
example, it was not uncommon for American Autoplan to take as long as three to
five months to repair vehicles at the Riverside facility. - - - -
- - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - On May
7, 1992, the Commissioner issued a cease and desist order directing appellants
to cease and desist from doing any act which violated Insurance Code sections
700 and 703 [**9] and from violating
the permanent injunction which had been issued on May 18, 1988. n5 - - - -
- - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 The
May 7, 1992 cease-and-desist order states that between 1985 and 1987, Neu and
John Senise operated a similar operation in New York called American Motor Club,
Inc. This company sold prepaid collision service contracts. In a series of
orders, the New York courts penalized the company $5 million, imposed fines on
Neu and ordered restitution. The company filed for bankruptcy and 5,000
customers filed creditor claims in the bankruptcy proceedings. - - - -
- - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - On June
4, 1992, American Autoplan and Neu filed a declaratory relief action against the
Commissioner in the Riverside Superior Court. Virga was [*768]
not a party to this action. The action was served by June 10, 1992. The
Riverside action alleged the Commissioner acted in excess of his jurisdiction
when he issued the cease-and-desist order because the contracts entered into
with consumers were not contracts of insurance. Appellants also alleged they did
not unlawfully [**10] aid and abet
violations of the Insurance Code and the stipulation signed by Neu in the Los
Angeles action did not direct Neu to cease any conduct. The Riverside action was
brought pursuant to Insurance Code section 1065.2, subdivision (c), which
permits waiver of a hearing before the Commissioner and judicial review of a
cease and desist order. n6 - - - -
- - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 The
section reads in part: "At any time prior to the commencement of a hearing
as provided in [Insurance Code] Section 1065.1 or subdivision (b) of this
section, the person may waive the hearing and have judicial review of the order
by means of any remedy afforded by law without first exhausting administrative
remedies or procedures." By filing the Riverside action, appellants were
asserting their rights to seek judicial, rather than administrative review of
the cease-and-desist order. - - - -
- - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - On June
15, 1992, the Commissioner filed this action in the Los Angeles Superior Court,
a three-count complaint seeking an injunction against appellants. The complaint
charged [**11] appellants with
transacting an insurance business without securing proper authority from the
Commissioner in violation of Insurance Code section 700; aiding and abetting a
nonadmitted insurer in violation of Insurance Code section 703; and violating
the May 7, 1992, cease-and-desist order. The Commissioner alleged that contracts
entered into by appellants with consumers were contracts of insurance, but that
appellants had never obtained authority from the Commissioner to sell such
insurance. It was also alleged that the cease and desist order had [***197]
directed appellants to refrain from engaging in the insurance business, but
appellants had continued to violate the law and had continued to violate that
order. The cease and desist order was attached to the complaint. The
Commissioner contemporaneously filed an ex parte application for a temporary
restraining order and an order to show cause re preliminary injunction.
Appellants opposed the request for a temporary restraining order. In opposing
the request, appellants contended they had not violated the insurance laws and
argued that, under the rule of "exclusive concurrent jurisdiction,"
the Los Angeles Superior Court lacked [**12]
jurisdiction to issue such an order because an action in the Riverside Superior
Court was pending which involved the same matter. Appellants suggested the Los
Angeles action should be stayed or transferred to Riverside. However, appellants
did not bring a separate motion for stay or transfer of the Los Angeles action
or file any separate pleading containing their request for affirmative relief.
[*769] The
application for a temporary restraining order was argued and denied. The trial
court set the matter for an order to show cause to consider if a preliminary
injunction should issue. Appellants opposed the Commissioner's application for
preliminary injunction, essentially repeating the same arguments presented in
opposition to the application for temporary restraining order. After briefing
and argument, the trial court issued the preliminary injunction. n7 Appellants
appeal from the order issuing the preliminary injunction. Subsequent to the
issuance of the preliminary injunction, the trial court granted appellants'
motion to transfer the Los Angeles action to Riverside. n8 - - - -
- - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7
Appellants have asked that we take judicial notice of court documents which
relate to events subsequent to the issuance of the preliminary injunction. These
include documents demonstrating that the Los Angeles Superior Court granted
appellants' motion to transfer the case to the Riverside Superior Court. We have
taken judicial notice of the fact that the matter was transferred. However,
since the pleadings accompanying the motion to transfer were not before the
trial court when it ruled on the application for preliminary injunction, it is
inappropriate for us to consider the contents of the pleadings. Appellants have
also asked that we augment the record to include documents verifying when the
Riverside action was served on the Commissioner. Neither party has contested
that service of the Riverside action preceded the filing of the Los Angeles
action. [**13] n8
Appellants' motion to transfer or in the alternative to stay the action was
filed on August 13, 1992; the motion was granted on September 29, 1992, and
appellants were ordered to pay transfer fees. The Commissioner indicates the
transfer has not yet been effectuated. - - - -
- - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - DISCUSSION
I.
EXCLUSIVE CONCURRENT JURISDICTION Appellants
contend a trial court has no jurisdiction to issue a preliminary injunction
where the applicability of the rule of exclusive concurrent jurisdiction is
established in opposition to a request for preliminary injunction. We disagree.
As we will discuss, the rule of exclusive concurrent jurisdiction is a judicial
rule of priority or preference and does not divest a court, which otherwise has
jurisdiction of an action, of jurisdiction. The rule of exclusive concurrent
jurisdiction is similar to an affirmative defense and the remedy for its
applicability is a stay of the second action. Prior to an appropriate pleading
requesting such a stay, the trial court in the second action properly exercises
its jurisdiction.
- - - -
- - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 In
some reported decisions, it is not clear whether motions to abate or stay
without answer or demurrer may have been brought. ( Figgs
v. Superior Court (1962) 204 Cal.App.2d 231 [22 Cal Rptr. 199]; Gorman
v. Superior Court (1937) 23 Cal.App.2d 173 [72 P.2d 774].) - - - -
- - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The rule
of exclusive concurrent jurisdiction, as mentioned previously, is mandatory.
Thus, if the conditions are met, the issuance of a stay order is a matter of
right. ( Lawyers
Title Ins. Corp. v. Superior Court, supra, 151 Cal.App.3d at p.
460.) Frequently, the term, "jurisdictional" has been used to
describe the mandatory nature of the rule. (2 Witkin, Cal. Procedure (3d ed.
1985) Jurisdiction, § 3, p. 368; Halpin
v. Superior Court (1971) 14 Cal.App.3d 530, 545 [92 Cal.Rptr. 329]; Cade
v. Superior Court, supra, 191 Cal.App.2d at p. 556; Myers
v. Superior Court, supra, 75 Cal.App.2d at p. 929.) However,
"[t]he term 'jurisdiction' is used in many senses. [Citation.] The term is
not synonymous with 'mandatory'. . .." ( Neil
D. Reid, Inc. v. Department of Health Care Services (1976) 55 Cal.App.3d
418, 421 [127 Cal.Rptr. 685]; [**21]
In
re Marriage of Harris (1977) 74 Cal.App.3d 98, 102 [141 Cal.Rptr. 333];
Chernow
v. Chernow (1954) 128 Cal.App.2d 816, 818 [276 P.2d 622].)
Stearns
v. Los Angeles City School Dist., supra, 244 Cal.App.2d 696
directly addressed the issue of the validity of a trial court's actions after it
erroneously failed to stay the matter under the doctrine of exclusive concurrent
jurisdiction. Stearns involved a claim by a judgment creditor to
property of the judgment debtor. A quiet title judgment was entered against the
judgment creditor. In Stearns, the appellate court asked the following
question: "Is it too late to lock the stable now that the horse has been
stolen?" ( Id.
at p. 717.) Stearns discussed whether the quiet title judgment on
appeal had led to an injustice: "It does, however, prompt inquiry to [***200]
determine whether any purpose would be served by reversing the [**23]
judgment entered in this case and remanding the case so that the litigation can
proceed in an orderly [*773] manner
with priority in the [court which had priority jurisdiction.] If there are no
errors in this record, and the evidence compels the result which has been
obtained, such a reversal would appear frivolous." ( Id.
at p. 718.) Stearns
was based upon Collins
v. Ramish, supra, 182 Cal. 360. Collins, a plea in
abatement case, concerned a dispute over payment for tile and marble work. After
a trial on the merits, the trial court found a prior action between the parties
had been abandoned and was not pending. The trial court found for the plaintiff
and awarded the plaintiff monetary damages. On appeal from the judgment, the
defendant asserted the judgment had to be reversed and the matter dismissed
because there was another action pending between the parties. The Supreme Court
concluded that another action between the parties was technically pending on
appeal, however, the appeal had apparently been abandoned. Even though the
Supreme Court concluded there was another action pending between the same
litigants, it held dismissal [**24]
of the action on that ground was not warranted. "[R]egardless of this, we
would not be warranted in giving a direction for dismissal or abatement of the
action where it is clearly made to appear that the effect thereof would be to
accomplish injustice." ( Collins
v. Ramish, supra, 182 Cal. at p. 367.) The Supreme Court
ordered reversal of the judgment and a new trial solely on the issue of another
action pending and one other issue. It held that findings on other issues would
stand in connection with a new judgment. In Bank
of America etc. Assn. v. Cohen, supra, 21 Cal.App.2d 510, on
an appeal from a judgment on the merits after a denial of a plea in abatement by
the trial court, the appellate court determined the plea had been waived. In
addition, the appellate court held reversal was not required where no prejudice
or miscarriage of justice resulted. The appellate court stated: "The
defendants in this action do not contend at any place in the briefs that there
has been a miscarriage of justice or that prejudice resulted to them from the
ruling. If the court had sustained the plea in abatement it would have resulted
merely in the continuance [**25] of
the case, sending the witnesses home to come back again, expense and delay. The
defendants do not point out to us anything so sacred about the filing-stamp on
the back of a complaint that it would justify a reversal in this court after a
trial on the merits in the superior court. The date mark is not a substantial
difference and judgment on either complaint if once obtained will suffice. An
appellant is entitled to assign for error only such proceedings in the trial
court as injuriously affect him." ( Id.
at pp. 512-513.) In this
case, we need not determine whether the trial court erred in determining that
the policy considerations behind the rule of exclusive [*774]
concurrent jurisdiction were outweighed by the countervailing policy
considerations in favor of trying the matter in Los Angeles. n10 We conclude
appellants failed to properly request affirmative relief in the trial court by
demurrer or answer or by motion to dismiss, stay or transfer; in the absence of
such a request, the trial court was not without jurisdiction to rule on the
merits of the preliminary injunction. - - - -
- - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 We
note that the Los Angeles action involved in part a prior stipulated judgment of
the Los Angeles Superior Court. - - - -
- - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**26]
In
opposition to the Commissioner's requests for a temporary restraining order and
a preliminary injunction, appellants argued that exclusive concurrent
jurisdiction resided in the Riverside Superior Court. The other opposition
arguments were primarily on the merits of the preliminary injunction. Appellants
did not file a demurrer or answer raising the issue of exclusive concurrent
jurisdiction. Nor did they make a motion to transfer, stay or dismiss the
action. Appellants [***201] merely
raised the issue in papers opposing the preliminary injunction. Appellants
suggest that since they raised the issue at the first opportunity and in light
of the need for an expeditious response to the Commissioner's request for a
preliminary injunction, it is not appropriate to require their pleadings to have
been in any particular form. Appellants argue that such a result would exalt
form over substance. We disagree. The rule
of exclusive concurrent jurisdiction is not a defense to a request for a
preliminary injunction. Exclusive concurrent jurisdiction is a judicial rule of
policy which mandates that the second action be stayed upon the filing of an
appropriate pleading. Prior to the filing [**27]
of such an appropriate pleading, the trial court in the second action retains
jurisdiction to act. Opposition to a request for a preliminary injunction is not
such an appropriate pleading.
Nor does
the peculiar procedural posture of this case require a differ ent result. Here,
the trial court rejected the Commissioner's request for [*775]
immediate relief by denying his request for a temporary restraining order and
giving appellants additional time to file pleadings in response to the
Commissioner's request for a preliminary [**28]
injunction. Thus, the trial court provided appellants with an opportunity not
only to address the issues raised by the Commissioner's request for the
preliminary injunction, but also to plead a case for affirmative relief. Had
appellants needed time to present a proper pleading, there is no indication the
trial court would have denied their request. Thus, contrary to appellants'
suggestion, it was not impracticable for them to properly request affirmative
relief. n11 Such a proper pleading also would have permitted timely appellate
review by petition for writ of prohibition. - - - -
- - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11
Compare Morrisette
v. Superior Court (1965) 236 Cal.App.2d 597, 602-603 [46 Cal.Rptr. 153].
- - - -
- - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In
addition, we conclude that any error of the trial court in determining the
applicability of the rule of exclusive concurrent jurisdiction does not require
reversal of the order granting the application for preliminary injunction.
Appellants have failed to demonstrate any injustice or prejudice to them arising
out of [**29] the asserted error. After
the Los Angeles Superior Court issued the preliminary injunction, appellants
successfully moved to have the Los Angeles case transferred to Riverside. The
Riverside Superior Court, which appellants contend has priority, will be
handling the case in the future. The Riverside Superior Court has not issued a
conflicting preliminary injunction, nor has it denied a request for a
preliminary injunction. Indeed, it does not appear that the Riverside Superior
Court has taken any action in its case. Accordingly, no injustice or prejudice
will flow from the issuance of the preliminary injunction by the Los Angeles
Superior Court. Thus, it
is appropriate for us to turn to the merits of the injunction. II THE
MERITS OF THE PRELIMINARY INJUNCTION n* - - - -
- - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n* See
footnote, ante, page 760. - - - -
- - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - DISPOSITION
The
order issuing a preliminary injunction is affirmed. Appellants shall bear
respondent's costs on appeal. Turner,
P. J., concurred. CONCURBY:
ARMSTRONG, J. CONCUR:
[***202]
[**30] I concur
in the judgment: I am of the view that the appellants properly raised the exclusive concurrent jurisdiction issue in the trial court, and that the trial court met the issue head on. The trial court correctly recognized that the rule of exclusive concurrent jurisdiction is a policy rule designed to prevent unseemly conflicts between courts and to protect litigants from the expense and harassment of multiple litigation. Because it is a policy rule, the application of the rule in a given case depends upon the balancing of countervailing policies. ( Childs v. Eltinge (1973) 29 Cal.App.3d 843, 854 [105 Cal.Rptr. 864].) The record establishes that this case is an exceptional case involving important issues of public policy relating to the regulation of insurance, the prompt enforcement of the California insurance laws by the commissioner and the protection of the public from those engaged in the unauthorized transaction of insurance business. In view of these strong countervailing policies, the trial court concluded that the exclusive concurrent jurisdiction rule should not be applied in this case at this stage of the proceedings to defeat the injunctive relief [**31] to which the commissioner is clearly entitled. I agree and would affirm the jurisdictional ruling on that ground |
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