Opinion
COTTLE, P. J. An insurer issued a liability insurance policy to a company regarding its company plane, excluding coverage for a pilot over 60 years of age. Based upon a complaint by the pilot, the Department of Fair Employment and Housing (DFEH) filed an accusation that the insurer had violated the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) by discriminating against the pilot based on his age. The Fair Employment and Housing Commission (FEHC) determined that it had no jurisdiction to consider the matter. The pilot petitioned the trial court for a writ of administrative mandamus directing the FEHC to set aside its decision and decide the merits of the case, and the trial court granted the petition. We conclude that the writ was not properly granted, and therefore reverse the judgment.
I. Factual Background
In 1985, National Vitamin, Inc. (National Vitamin), a company in the business of manufacturing and distributing vitamins, purchased an aircraft to fly its executives and customers throughout the western United States. The [1216]aircraft was a “Beech 90 King Air,” an eight-passenger, twin engine, turboprop aircraft. National Vitamin retained1 respondent Claude J. Wilson (Wilson) to pilot the aircraft. Wilson, who was bom on November 21, 1920, had first obtained a pilot’s license in 1940.
On July 17, 1985, a Fireman’s Fund Insurance Companies policy was issued by and through appellant Associated Aviation Underwriters (AAU).2 The policy provided $5 million in liability coverage in exchange for a $4,675 premium payment by National Vitamin, the named insured under the policy. The 1985 policy contained a provision regarding the persons authorized to fly the airplane as pilot-in-command, but that provision made no reference to the pilot’s age.3 Wilson flew the plane for National Vitamin during the 1985-1986 policy year.
AAU renewed the policy for the year from July 17, 1986, to July 17,1987, but the policy for that period provided that the airplane would not be covered if Wilson acted as pilot-in-command. On September 9, 1986, the following endorsement, retroactive to July 17, 1986, was added to the policy: “Item 7. Pilots—of the Declarations is amended to exclude the following: Claude J. Wilson.” Language eliminating coverage for National Vitamin if Wilson was the pilot-in-command was included in the subsequent AAU policies covering July 17, 1987-1988;4 July 17, 1988-1989; and July 17, 1989-1990. The parties apparently agree that the policy for 1990-1991 deleted the specific reference to Wilson, and generally excluded all individuals age 60 or older from serving as pilot-in-command of the aircraft.5
[1217]II. Procedural History
A. The Initial DFEH Accusation
On June 16, 1987, Wilson filed a complaint with the DFEH, alleging that he was denied services (insurance coverage) by AAU due to his age (66), in violation of Civil Code section 51. On or about June 15, 1988, the DFEH filed an accusation alleging that in the 1986-1987 policy, AAU had engaged in arbitrary age discrimination against Wilson in violation of the Unruh Civil Rights Act. AAU filed a “Notice of Defense” which, in part, challenged the FEHC’s jurisdiction to consider the accusation.
By agreement of the parties, the matter was submitted to an administrative law judge for a proposed decision on the jurisdictional issue. On June 16, 1989, the administrative law judge issued a proposed decision dismissing the accusation. The decision concludes: “The McBride-Grunsky Regulatory Act is controlling regarding claims of discrimination in insurance underwriting decisions. Complainant’s failure to exhaust the administrative remedies provided in that act precludes the [FEHC] from proceeding on complainant’s complaint under the Unruh Civil Rights Act.” On September 14, 1989, the FEHC unanimously adopted this proposed decision as its final decision.
B. Wilson’s Complaint to the Department of Insurance
Wilson also sent letters to the Department of Insurance concerning AAU’s policy for the policy year of July 17, 1986-1987. Although the record on appeal may not contain all of this correspondence, it is clear that numerous letters were exchanged between Wilson, AAU, and the Department of Insurance addressing this matter. A March 21,1990, letter to Wilson from an associate underwriting officer with the Department of Insurance states, in part: “The matter has been re-reviewed, and we have determined that the insurer is neither in violation of the contract nor the California Insurance Code. [1 However, there may be a violation of the Unruh Civil Rights Act. We suggest that you contact the California Attorney General’s office if you wish to pursue the matter further.” Later, the parties exchanged additional correspondence regarding proposed terms for the 1990-1991 policy.
C. The Second DFEH Accusation
On May 8, 1990, Wilson apparently made a second complaint with the DFEH. On or about May 8, 1991, the DFEH filed a second accusation [1218]against AAU, alleging that Wilson had exhausted administrative remedies with the Department of Insurance, and that AAU’s policies for 1986 and subsequent years constituted an arbitrary withdrawal of services to a class of individuals age 65 or older in violation of the Unruh Civil Rights Act.
After evidentiary hearings on this second accusation, the administrative law judge filed a proposed decision finding that AAU had violated the Unruh Civil Rights Act. On December 8, 1994, in a three-to-one decision, the FEHC decided not to adopt the proposed decision. The FEHC dismissed the second accusation on the ground that it lacked jurisdiction to consider the case.
D. Wilson’s Petition for Writ of Administrative Mandamus
On March 15, 1995, Wilson filed a petition for a writ of administrative mandamus with the superior court. The petition requested that the court issue a writ to “to stay and vacate the [FEHC decision of December 8, 1994], determine that the [FEHC] has jurisdiction to hear the matter on its merits and remand this matter to the [FEHC] for a final decision on the merits and that WILSON be awarded attorney fees and costs of this writ.” Wilson’s petition was opposed by AAU and the FEHC. On June 9, 1995, the trial court issued an order granting the petition and remanding the second accusation to the FEHC to decide the case on the merits. Judgment was entered on August 1, 1995, and AAU appeals. The record on appeal has been augmented to include a later judgment nunc pro tunc filed on October 17, 1995.
III. Discussion
A. Issue and Standard of Review
On appeal, AAU contends that the trial court’s decision remanding the case to the FEHC was incorrect because the Department of Insurance has primary jurisdiction to consider complaints regarding underwriting practices, and only the Department of Insurance has the expertise to evaluate such claims. AAU also contends that insurance underwriting decisions using age as a factor in setting premiums or evaluating risks are not subject to age discrimination claims under the Unruh Civil Rights Act. Wilson and the DFEH argue that the trial court’s decision was correct. They contend that the FEHC must resolve Wilson’s claim because (1) insurers are subject to the Unruh Civil Rights Act, including age discrimination claims, and (2) the FEHC is required to determine the issues raised by an accusation of an Unruh Civil Rights Act violation.
[1219]The primary issue is thus whether the FEHC has jurisdiction to determine whether an insurer’s underwriting decision violates the Unruh Civil Rights Act. This question of jurisdiction, which involves statutory interpretation, is a purely legal issue. The trial court’s judgment is therefore subject to this court’s independent review. (See Dean W. Knight & Sons, Inc. v. State of California ex rel. Dept. of Transportation (1984) 155 Cal.App.3d 300, 305 [202 Cal.Rptr. 44].)
B. Jurisdiction
The arguments of the parties regarding jurisdiction over Wilson’s claim depend upon interpretation of various statutes, including provisions of the Insurance Code, the changes made by Proposition 103, the Unruh Civil Rights Act, and the Government Code.
1. Statutory Provisions
AAU and its associated insurers are subject to the comprehensive requirements of the Insurance Code, including the McBride-Grunsky Regulatory Act (McBride Act) (Ins. Code, § 1850.4 et seq.), which sets standards applicable to casualty ratemaking. This act, as modified by the voters through the initiative process and by the Legislature through various amendments, is set forth in sections 1851 through 1861.16 of the Insurance Code.
Section 1858 of the Insurance Code establishes an administrative scheme for complaints to be filed with the Insurance Commissioner. “Any person aggrieved by any rate charged, rating plan, rating system, or underwriting rule followed or adopted by an insurer . . . may file a written complaint with the commissioner requesting that the commissioner review the manner in which the rate, plan, system, or rule has been applied with respect to the insurance afforded to that person. In addition, the aggrieved person may file a written request for a public hearing before the commissioner, specifying the grounds relied upon.” (Ins. Code, § 1858, subd. (a).) The Insurance Commissioner is authorized to hold a public hearing (Ins. Code, § 1858.2), issue an order specifying a violation and requiring compliance within a reasonable time thereafter (Ins. Code, § 1858.3, subd. (b)), assess monetary penalties (Ins. Code, § 1858.3, subd. (c)), and suspend or revoke the certificate of authority of any insurer who violates the provisions of the act or who fails to comply with the commissioner’s orders. (Ins. Code, § 1858.4; Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 384-385 [6 Cal.Rptr.2d 487, 826 P.2d 730].) Finally, Insurance Code section 1858.6 provides for judicial review following “[a]ny finding, determination, rule, ruling or order made by the commissioner under this chapter ... in accordance with the provisions of the Code of Civil Procedure.”
[1220]The McBride Act specifically immunizes certain conduct subsumed by its provisions from prosecution under other laws. Insurance Code section 1860.1 provides: “No act done, action taken or agreement made pursuant to the authority conferred by this chapter shall constitute a violation of or grounds for prosecution or civil proceedings under any other law of this State heretofore or hereafter enacted which does not specifically refer to insurance.” Section 1860.2 provides in part: “The administration and enforcement of this chapter shall be governed solely by the provisions of this chapter.”
Various substantive sections of the McBride Act were significantly altered by the voters in November 1988 with the passage of Proposition 103. The change most relevant here was the addition of the following language: “The business of insurance shall be subject to the laws of California applicable to any other business, including, but not limited to, the Unruh Civil Rights Act (Sections 51 to 53, inclusive, of the Civil Code) . . . .” (Ins. Code, § 1861.03, subd. (a).)
The Unruh Civil Rights Act states in part: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51.)6
A violation of the Unruh Civil Rights Act is also an unlawful practice under the Fair Employment and Housing Act. (Gov. Code, § 12948 [“It shall be an unlawful practice under this part for a person to deny or to aid, incite, or conspire in the denial of the rights created by Section 51 or 51.7 of the Civil Code”].) Section 12930 of the Government Code authorizes the DFEH to “receive, investigate, and conciliate complaints alleging a violation of Section 51 or 51.7 of the Civil Code.” (Gov. Code, § 12930, subd. (f)(2).) The DFEH is also authorized to issue accusations and to prosecute such accusations before the FEHC. (Gov. Code, §§ 12930, subd. (h), 12965.) Section 12967 of the Government Code provides that the FEHC “shall hold hearings on accusations issued pursuant to Section 12965 and determine the issues raised therein.”
2. Determination of FEHC’s Jurisdiction in This Case
Wilson argues that the Unruh Civil Rights Act and the Government Code sections set forth above show “that AAU’s discriminatory practices [1221]must be reviewed by FEHC. If not FEHC will be in violation of the legislative mandate directing them to take jurisdiction of Unruh Civil Rights Act violations.” After reviewing the Insurance Code provisions, the effect of Proposition 103, the Unruh Civil Rights Act and the relevant administrative expertise, we conclude that the FEHC does not have jurisdiction to decide Wilson’s claim.
First, AAU’s decision to incorporate certain conditions regarding the pilot-in-command into National Vitamin’s aviation insurance policy was clearly an underwriting decision made on the basis of risk evaluation. Wilson contends that “this case is only about age discrimination and not about insurability criteria . . . .” We cannot accept this characterization. AAU’s decision regarding the National Vitamin policy at issue is inherently intertwined with both (1) its evaluation of the risks presented by the National Vitamin policy, and (2) the general insurance underwriting policies of AAU. Wilson argues that “AAU had no other basis for excluding Wilson from coverage except for his age.” Even if Wilson is correct that his other qualifications (such as training, flight time and medical condition) met the policy provisions and only his age excluded him from National Vitamin’s coverage, a factual issue not presented by this appeal, Wilson’s claim is still a challenge to an underwriting decision or practice of AAU. The use of underwriting rules and rating criteria will sometimes result in exclusions from coverage.
Because Wilson’s claim involves allegedly discriminatory underwriting practices, it falls within the ambit of the McBride Act. As set forth above, the McBride Act specifically regulates the ratemaking policies of insurance companies, and provides a comprehensive administrative scheme giving the Insurance Commissioner authority to decide issues presented by persons allegedly aggrieved by any “underwriting rule.” (Ins. Code, § 1858, subd. (a).)
Second, Proposition 103, which added the provision that the business of insurance is subject to the Unruh Civil Rights Act, contains no provision stating that alleged Unruh Civil Rights Act violations by insurers are within the jurisdiction of the FEHC. Instead, the language regarding the Unruh Civil Rights Act was placed in chapter 9 of the Insurance Code, which contains the McBride Act’s procedure for hearing and determination by the Insurance Commissioner. In addition to its comprehensive scheme for the Insurance Commissioner to decide the claims of persons allegedly aggrieved by an “underwriting rule,” the McBride Act also provides: “The administration and enforcement of this chapter shall be governed solely by the provisions of this chapter.” (Ins. Code, § 1860.2.) We believe that Wilson’s claim [1222]here is pursuant to subdivision (a) of section 1861.03 of the Insurance Code (subjecting the insurance business to the Unruh Civil Rights Act) and clearly within the scope of this provision. His administrative claim is therefore “governed solely by the provisions” of chapter 9 of the Insurance Code, including the McBride Act’s procedure for hearing and determination by the Insurance Commissioner. In light of this clear statutory language, we do not believe that Wilson’s administrative claim is properly submitted to another agency, such as the FEHC.
In another context, regarding the approval of insurance rates, Proposition 103 added the following language: “No rate shall be approved or remain in effect which is excessive, inadequate, unfairly discriminatory or otherwise in violation of this chapter. In considering whether a rate is excessive, inadequate or unfairly discriminatory, no consideration shall be given to the degree of competition and the commissioner shall consider whether the rate mathematically reflects the insurance company’s investment income.” (Ins. Code, § 1861.05, subd. (a), italics added.) Although this provision does not specifically refer to the Unruh Civil Rights Act, it is significant that the McBride Act’s hearing procedures (Ins. Code, § 1858 et seq.) continue after Proposition 103, and that Proposition 103 acknowledged the authority of the Insurance Commissioner in questions regarding discriminatory rates.
Third, the Unruh Civil Rights Act, by its own terms, is designed not to encroach upon the Insurance Code or other existing law. Civil Code section 51 provides in part: “This section shall not be construed to confer any right or privilege on a person which is conditioned or limited by law . . . .” Wilson’s right, if any, to be covered under National Vitamin’s policy is clearly subject to the comprehensive provisions of the Insurance Code regarding underwriting practices, including the provision that administrative claims by persons allegedly aggrieved by an underwriting rule are to be submitted to the Insurance Commissioner.
Fourth, insurance underwriting issues require the specialized factfinding and expertise of the Insurance Commissioner rather than that of the FEHC. The statutes establishing the FEHC and the record here provide no indication that the FEHC has any expertise or experience with actuarial risks. Actuarial risk evaluation is critical in determining both premium rates for a policy and whether a policy should be issued. In its December 8, 1994, decision, the FEHC states that it is “an unsuitable forum in which to determine the appropriate use of age criteria in the insurance industry.” (Capitalization omitted.) The FEHC concludes: “[T]he appropriate use of age criteria in the insurance industry is an area in which this Commission does not have any [1223]particular expertise or experience. We have not been previously called upon to evaluate the actuarial practices of insurance companies. This is in stark contrast to the Commission’s longstanding expertise and experience with discrimination in employment, housing, and public accommodation cases.”
On the other hand, the Insurance Commissioner clearly possesses the expertise to evaluate and resolve issues regarding actuarial risks and allegedly discriminatory underwriting practices. For example, in County of Los Angeles v. Farmers Ins. Exchange (1982) 132 Cal.App.3d 77 [182 Cal.Rptr. 879], plaintiffs sought to enjoin certain insurance practices, such as basing automobile insurance rates on geographic areas, and “redlining” certain geographic areas and making automobile liability policies unavailable in those areas. The court noted that “. . . the Insurance Commissioner and the Department of Insurance possess sophisticated bodies of expertise in this field which make them particularly able to handle these matters.” (Id. at p. 87.)
The administrative expertise of the Department of Insurance was also recognized in Farmers Ins. Exchange v. Superior Court, supra, 2 Cal.4th 377. In that case, plaintiffs alleged that an insurer’s alleged refusal to offer “good driver” discounts to all eligible applicants violated section 17200 of the Business and Professions Code. Applying the primary jurisdiction doctrine, the Supreme Court ordered the trial court to stay the civil action pending proceedings before the Insurance Commissioner. (2 Cal.4th at p. 401.) The court noted that the Insurance Code provided a “ ‘pervasive and self-contained system of administrative procedure’ ” (id. at p. 396) to deal with the precise questions raised, and that “. . . the question of insurance rate regulation has ‘traditionally commanded administrative expertise applied to controlled industries.’ ” (Id. at p. 399.) The court stated: “[T]he determination whether petitioners employed rates that are ‘unfairly discriminatory’ also calls for exercise of administrative expertise preliminary to judicial review. In practice, resolution of the ‘unfairly discriminatory rate’ question will turn in many instances on determination of the above discussed rate-setting provisions of the Insurance Code. It is readily apparent that a court would benefit immensely, and uniformity of decisions would be greatly enhanced, by having an expert administrative analysis available before attempting to grapple with such a potentially broad-ranging and technical question of insurance law.” (Id. at pp. 399-400.) Similarly, the question in this case involves the Insurance Code’s provisions regarding underwriting practices, and the Insurance Commissioner has the relevant administrative expertise.
In light of the factors set forth above, we conclude that the trial court erred in granting the writ and remanding this case to the FEHC for decision on the merits.
[1224]The sole question before us is the correctness of the trial court’s decision remanding the case to the FEHC. Wilson’s petition requested a writ remanding the case to the FEHC for a decision on the merits. In light of the narrow issue presented by the petition and the trial court’s decision, we determine only that the FEHC lacked jurisdiction to determine the merits of Wilson’s claim. Given Wilson’s decision to bring this matter before an administrative agency,7 we conclude that the proper administrative procedure is to file a written complaint with the Insurance Commissioner pursuant to section 1858 of the Insurance Code.
The parties apparently dispute whether the Department of Insurance has decided Wilson’s Unruh Civil Rights Act claim. Wilson argues that the Department of Insurance has taken the position that it has no jurisdiction over Unruh Civil Rights Act violations, and “[i]f it is found that the FEHC does not have jurisdiction to decide AAU’s discrimination against Wilson, the Department of Insurance surely will not hear the matter. Wilson will simply be left with no remedy.” AAU responds that the Department of Insurance “has never stated that it lacks jurisdiction to hear matters involving violations of the Unruh Civil Rights Act. The Department of Insurance merely informed Wilson that it had not found AAU to be in violation of the contract or of the California Insurance Code.”
We shall not resolve this dispute. The record before us does not contain all of the documents regarding Wilson’s actions before the Insurance Commissioner. Wilson’s writ petition did not request any action regarding proceedings before the Insurance Commissioner, and the trial court did not make any determination regarding such proceedings. On the basis of the petition, the order, and the record before us, we do not determine whether Wilson filed a written complaint pursuant to section 1858 of the Insurance Code, or whether the Insurance Commissioner made a “finding, determination, rule, ruling or order,” subject to judicial review under Insurance Code section 1858.6, on Wilson’s Unruh Civil Rights Act claim.
C. Age Discrimination
The parties dispute whether age-based insurance underwriting decisions are subject to age discrimination claims under the Unruh Civil Rights Act. Given the narrow jurisdictional question before us, however, we decline to issue any advisory opinion regarding whether insurance underwriting decisions are subject to age discrimination claims under the Unruh Civil Rights Act, or any opinion as to the merits of Wilson’s claim.
[1225]D. Res Judicata and Collateral Estoppel
AAU contends that the second accusation is barred by res judicata and collateral estoppel because the issue presented, the FEHC’s jurisdiction over this claim, was decided in the FEHC decision on the first accusation. In light of our conclusion that the FEHC does not have jurisdiction over this claim and our reversal of the judgment, we need not address these contentions.
Disposition
The judgment is reversed. Each party shall bear its own costs on appeal.
Mihara, J., concurred.
Wilson’s petition alleges that National Vitamin “employed” him to maintain and act as pilot in command of the aircraft. The Associated Aviation Underwriters argues that Wilson was an “independent contractor.” We need not resolve this dispute.
According to AAU’s brief on appeal, AAU is “a voluntary unincorporated association that underwrites aviation risks on behalf of its member companies. The member companies are jointly and severally liable for the risks underwritten by AAU.”
The 1985-1986 policy contained the following provision: “7. Pilots: The policy shall not apply while the aircraft is in flight unless the pilot in command is: See Endorsement No. 1.” Endorsement No. 1 set forth the following qualifications for the pilot-in-command: “Any person while holding a currently effective certificate issued by the Federal Aviation Administration designating such person a commercial pilot with airplane category and unlimited multi engine land and instrument ratings and who has a minimum of 3000 total logged flying hours as pilot in command including at least 1000 hours in multi engine aircraft and at least 250 hours in turbo prop aircraft of which not less than 100 hours have been in the model aircraft insured hereunder or has successfully completed the manufacturer’s recommended ground and flight school in the model aircraft insured hereunder.”
The policy from July 17, 1987-1988, stated: “It Is Agreed That: 1. All Coverages set forth in this Policy shall not be in effect while Claude Wilson is acting as pilot-in-command.”
AAU states that the 1990-1991 policy provided as follows: “Based on underwriting analysis of the contemplated use of this multi-passenger turboprop aircraft, the geographical [1217]areas over which the aircraft will be flown, the frequency and type of flying contemplated, and other factors, this policy excludes operation of the aircraft by any pilot who would not be qualified to operate a Part 121 aircraft as pilot-in-command under the Federal Aviation Regulation 121.383(c).”
The Unruh Civil Rights Act does not explicitly list age as a protected classification, but in cases not involving insurance, age has been considered one of the bases of discrimination covered by the Unruh Civil Rights Act. (See Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721 [180 Cal.Rptr. 496, 640 P.2d 115, 30 A.L.R.4th 1161].)
Wilson did not file a complaint in superior court seeking damages or other relief for an Unruh Civil Rights Act violation. We therefore do not address the possibility of such a complaint filed directly with the court without prior administrative action. (Cf. Farmers Ins. Exchange v. Superior Court, supra, 2 Cal.4th 377.)