LOUISIANA HOSPITAL ASSOCIATION & LOUISIANA STATE MEDICAL SOCIETY
STATE OF LOUISIANA, THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF INSURANCE & JAMES J. DONELON IN HIS CAPACITY AS COMMISSIONER OF THE LOUISIANA DEPARTMENT OF INSURANCE
Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana. Trial Court No, 615,492. Honorable Janice Clark, Judge.
CARROLL DEVILLIER, JR., GREGORY D. FROST, JEANNE C. COMEAUX, BATON ROUGE, LA, ATTORNEYS FOR PLAINTIFFS-APPELLANTS, LOUISIANA HOSPITAL ASSOCIATION & LOUISIANA STATE MEDICAL SOCIETY.
J.E. CULLENS, JR., EDWARD J. WALTERS, JR., DARREL J. PAPILLION, DAVID ABBOUD THOMAS, BATON ROUGE, LA, AND PATRICK N. BROYLES, BATON ROUGE, LA, ATTORNEYS FOR DEFENDANTS-APPELLEES, STATE OF LOUISIANA, THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF INSURANCE AND JAMES J. DONELON IN HIS CAPACITY AS COMMISSIONER OF THE LOUISIANA DEPARTMENT OF INSURANCE.
BEFORE: PARRO, KUHN, PETTIGREW, McDONALD, McCLENDON, WELCH, HIGGINBOTHAM, CRAIN, THERIOT, AND DRAKE, JJ. McDONALD J., DISSENTS AND ASSIGNS REASONS. WELCH J. dissent for reasons assigned by Judge Mr. Donald THERIOT, J. Concurs for the reasons assigned by Judge Kuhn. KUTH, J. concurs & ASSIGNS REASONS, Higginbotham, J. Concurs for same reasons as J Kuhn. Parro, J. dissent for the reasons assigned by jugde Crain. Grain, J, dissents and assign reasons. McCLENDON, J. Concurs for the reasons assigned by Jugde Kuhn.
[2013 0579 La.App. 1 Cir. 2]
In this appeal, plaintiffs challenge the trial court's judgment, granting summary judgment in favor of defendants and dismissing, with prejudice, plaintiffs' petition for preliminary and permanent injunction and declaratory relief. For the reasons that follow, we reverse in part, vacate in part, and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
The facts of this case are not in dispute. On August 29, 2012, Governor Bobby Jindal issued Executive Order No. BJ 2012-16 (" Executive Order" ), to provide for the " LIMITED TRANSFER OF AUTHORITY TO COMMISSIONER OF INSURANCE FOR EMERGENCY RULES FOR HURRICANE ISAAC." The Executive Order provided, in pertinent part, as follows:
WHEREAS, in accordance with R.S.29:724, the Governor may suspend the
provisions of any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or [2013 0579 La.App. 1 Cir. 3] regulations of any state agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency;
WHEREAS, families and businesses may have suffered damages due to Hurricane Isaac and its aftermath or may have to relocate temporarily due to mandatory or voluntary evacuations and/or damage to their dwellings or offices;
WHEREAS, in addition to the displacement of citizens and disruption of business operations, Hurricane Isaac may cause interruption of communications, including phone service, internet service, and delivery of mail in numerous areas throughout Louisiana;
WHEREAS, in the ordinary course of business, insurance companies send notices to their insureds, many of which are required by law to be responded to within specified time limits with consequences for failure to do so;
WHEREAS, State law also provides requirements for the approval and denial of claims by insurers, though compliance may not [be] practical or possible;
WHEREAS, Commissioner of Insurance James J. Donelon has advised the Governor that citizens in Louisiana are at risk with regard to any and all kinds of insurance; and
WHEREAS, Commissioner of Insurance James J. Donelon has requested that the Governor authorize him to suspend laws regarding legal deadlines and certain processes and procedures applicable to Louisiana citizens who on 12:01 A.M., August 26, 2012, resided in certain parishes, regarding any and all insurance matters, including but not limited to flood insurance, homeowners insurance, life insurance, health and accident insurance, limited benefit in surance,
vehicle insurance, liability insurance, workers' compensation insurance,
burglary and forgery insurance, glass insurance, fidelity and surety
insurance, title insurance, fire and extended coverage insurance, steam boiler
and sprinkler leakage insurance, crop and livestock insurance, marine and
transportation insurance, credit life insurance, medical supplement insurance,
credit property and casualty insurance, annuity insurance, HMOs, professional
and medical malpractice liability insurance, property and casualty insurance,
all surplus lines insurance, self insurance funds, disability insurance,
reciprocal insurance, long term
care insurance, short term health insurance, stop loss insurance, excess
loss insurance, commercial general insurance, Medicare supplement insurance,
preferred provider organizations, managed care organizations and any and all
other insurance related entities licensed by the Commissioner or doing
business in Louisiana;
NOW THEREFORE I, BOBBY JINDAL, Governor of the State of Louisiana, by virtue of the authority vested in me by the Constitution and laws of the State of Louisiana, do hereby order and direct as follows:
SECTION 1: Commissioner of Insurance James J. Donelon shall have limited transfer of authority to act only according to the requirements for implementation of Emergency Rule 26, Title 37. The Governor's authority pursuant to R.S. 29:724 to suspend provisions of any [2013 0579 La.App. 1 Cir. 4] regulatory statute prescribing the procedures for, conduct of State business, or the orders, rules or regulations or the Department of Insurance is transferred to Commissioner of Insurance James J. Donelon for purposes of enacting and enforcing Emergency Rule 26; Title 37.
SECTION 2: This limited transfer of authority referenced in Section 1 specifically includes but is not limited to the authority to suspend applicable statutes, issue any rules, regulations, and directives or take any other action that Commissioner James J, Donelan deems necessary for purposes of Emergency Rule No. 26 to protect the public health, safety, and welfare of the citizens of Louisiana who were affected by Hurricane Isaac and on 12:01 AM, August 26, 2012, resided in those parishes of Louisiana specified in Emergency Rule No. 26.
SECTION 3: Any rules, regulations, directives or any other actions taken by Commissioner of Insurance James J. Donelon to effectuate Emergency Rule No. 26 shall have the full force and effect as if said rules, regulations, directives or any other actions were, issued by the Governor of the State of Louisiana.
SECTION 4: The Governor of the State of Louisiana shall retain his power, coterminous with the power transferred to Commissioner of Insurance James J. Donelon, to issue any rules, regulations, directives or take any other actions with regard. to any, and all insurance matters necessary to protect the public health, safety and welfare of the citizens of Louisiana.
SECTION 5: This limited transfer of authority shall remain in full force and effect for the duration of Emergency Rule No. 26, which is until September 25, 2012.
. . . .
Relying upon the transfer of authority from Governor Jindal, the State of Louisiana through the Department of Insurance, and James J. Donelon, in his capacity as Commissioner of the Department of Insurance (the " Commissioner" ) (collectively " the Department" ), promulgated Emergency Rule 26 (" Rule 26" ), which in pertinent part, temporarily banned the practice of " balance billing" by out-of-network health care providers as ...