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March 17, 2026 Get Citation Alerts Download PDF Add Note

Indiana Compensation Rating Bureau v. Technology Insurance Company

Indiana Supreme Court

• Citations: None known
• Docket Number: 26S-PL-00083
• Panel: Mark S. Massa, Loretta H. Rush
• Judges: Molter, Goff, Slaughter, Massa, Rush

• Disposition: Affirmed in Part, Remanded in Part

• Opinion

• Authorities (17)

• Cited By (0)

• Summaries (0)

• Similar Cases (13.8K)

• PDF

Disposition

Affirmed in Part, Remanded in Part

Combined Opinion

                        by Justice Slaughter

IN THE

Indiana Supreme Court
Supreme Court Case No. 26S-PL-83
FILED
Indiana Compensation Rating Bureau, Mar 17 2026, 2:45 pm

Appellant-Defendant, CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

and

Indiana Department of Insurance,
Defendant,

–v–

Technology Insurance Company,
Appellee-Plaintiff.

Argued: September 4, 2025 | Decided: March 17, 2026

Appeal from the Marion Superior Court
No. 49D13-2207-PL-22174
The Honorable James Joven, Judge

On Petition to Transfer from the Indiana Court of Appeals
No. 24A-PL-857

Opinion by Justice Slaughter
Justices Massa, Goff, and Molter concur.
Chief Justice Rush concurs in part and dissents in part with separate opinion.
Slaughter, Justice.

By law, Indiana pools insurance companies to share the risks of provid-
ing worker’s compensation coverage to employers that cannot obtain in-
surance. Technology Insurance Company provides worker’s compensa-
tion insurance under this statutory scheme through a contractual “As-
signed Risk Plan” with the Indiana Compensation Rating Bureau, which
oversees this statewide pooling arrangement. After reaching a multi-mil-
lion-dollar settlement for a policy issued under the Plan, the Company
sought reimbursement from the Bureau, but the Bureau denied repay-
ment. After almost five years of litigation, an administrative law judge,
ALJ, found the Company was entitled to full repayment. The Company
then sought attorneys’ fees, interest, and expenses from a trial court on ju-
dicial review, but the Bureau opposed it. The trial court granted the Com-
pany’s request for fees, interest, and all other appropriate relief.

On appeal, the Bureau now concedes the Company is entitled to fees,
but it says the Company must first exhaust administrative remedies on
these claims. This action, the Bureau claims, is, at bottom, an agency action
requiring exhaustion. We hold that the Company must exhaust adminis-
trative remedies because of the Plan’s dispute-resolution provisions and
underlying contracts, and that the Company did so by pursuing its under-
lying claim against the Bureau. We affirm the trial court’s judgment grant-
ing the Company’s petition for judicial review and remand with instruc-
tions.

I

A

From 2008 to 2020, Technology Insurance Company provided worker’s
compensation insurance in Indiana to employers that could not obtain in-
surance through the voluntary market. Ind. Code § 27-7-2-28.1(c). The
Company was one of five Servicing Carriers licensed in Indiana to provide
such coverage. The Indiana Compensation Rating Bureau oversaw the
Company as a Servicing Carrier and is a private, nonprofit association of
all insurance companies licensed to provide worker’s compensation insur-
ance in Indiana—overseeing more than 700 such insurers. Id. § 27-7-2-3.

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 2 of 19
To carry out this statewide system, the Bureau administers the Assigned
Risk Plan, which connects Servicing Carriers to eligible employers. Id. §
27-7-2-28.1(b) The Bureau assigns Servicing Carriers to issue worker’s
compensation policies to employers that “are in good faith entitled to but
who are unable to procure such insurance through ordinary methods.” Id.
§ 27-7-2-28.1(c).

Two contracts govern the relationship between the Bureau and a Ser-
vicing Carrier. The first contract is the Servicing Carrier Agreement, which
sets out the duties of each Servicing Carrier and of the Bureau. Under this
agreement, a Servicing Carrier must issue a worker’s compensation policy
when the Bureau assigns it. A Servicing Carrier must also defend and liti-
gate covered compensable losses arising from or in connection with its
policy. If either the Bureau or a Servicing Carrier breaches the agreement,
the nonbreaching party “shall be entitled to recover in addition to all other
damages, attorneys’ fees, expenses and costs” from the other.

The second contract between the Bureau and a Servicing Carrier is the
Quota Share Reinsurance Agreement. This agreement says that any loss a
Servicing Carrier incurs from an assigned policy, or any compensatory or
consequential damages arising from an assigned policy “shall be deemed
to be a Loss reinsurable under this Agreement for which the Servicing
Carrier is entitled to reimbursement.” If a Servicing Carrier settles a claim
in good faith, the settlement is “binding unconditionally” on the Bureau.
Thus, if a Servicing Carrier pays a worker’s compensation settlement or
any compensatory damages concerning a claim, the Bureau must reim-
burse the Carrier for the full amount of the claim. But the Bureau need not
reimburse for losses a Servicing Carrier incurs due to its own “willful mis-
conduct, fraudulent activity or criminal act.”

The Assigned Risk Plan, the Servicing Carrier Agreement, and the
Quota Share Reinsurance Agreement all contain nearly identical dispute-
resolution provisions. A Servicing Carrier with a potential dispute regard-
ing the Assigned Risk Plan must first ask the Bureau to review the claim.
If the Bureau denies the claim, the Servicing Carrier may then seek review
from the Bureau’s Governing Board. If the Governing Board denies the
claim, the Servicing Carrier may appeal to the Indiana Department of

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 3 of 19
Insurance, which must hold a hearing and issue a decision. After the De-
partment issues its decision, a party can then seek judicial review in the
Marion Circuit or Superior Court. Id. § 27-7-2-27(b).

B

In 2013, the Bureau received an application for worker’s compensation
insurance from Omega Demolition Corporation, which was performing
demolition operations on a bridge that spanned the Ohio River in south-
ern Indiana. The Bureau assigned Omega to the Company, and the Com-
pany issued a worker’s compensation policy to Omega. After the policy
took effect, one of Omega’s employees, James McWorthey, was injured
while on the job. The employee sued Omega and the Company under the
Company’s policy. After four years of litigation, in 2017 the Company set-
tled with the employee for $2,050,000. During the litigation, the Company
incurred $805,329 in fees and costs.

That same year, the Company submitted a claim to the Bureau for reim-
bursement of its total outlays during the Omega/McWorthey litigation,
amounting to $2,855,329. The Bureau and the Bureau’s Governing Board
denied the claim, finding that the Company handled the
Omega/McWorthey litigation fraudulently. Following the dispute-resolu-
tion process outlined in the Reinsurance Agreement, Servicing Carrier
Agreement, and the Assigned Risk Plan, the Company appealed to the
Department of Insurance. After another four years of litigation, in 2021 an
ALJ granted the Company’s summary-judgment motion, holding it was
entitled “to reimbursement of the amounts it paid in connection with the
Omega/McWorthey Claim”. The ALJ also ordered the Bureau to “fully re-
imburse” the Company for its payments made in connection with the
Omega/McWorthey litigation.

The ALJ allowed the parties fifteen days after his ruling to preserve any
objections for judicial review, according to Indiana Code section 4-21.5-3-
29(d). The Bureau did not object within the fifteen days. On the sixteenth
day, the Company asked the ALJ to award it prejudgment and post-judg-
ment interest, plus attorneys’ fees and expenses incurred on appeal to the
Department. The total amount the Company claimed in prejudgment in-
terest was $930,601.77 as of August 5, 2021, plus interest of $625.82 per

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 4 of 19
day until the judgment was satisfied. This reflects Indiana’s statutory in-
terest rate of eight percent. Id. § 24-4.6-1-101. The Company also claimed
$1,049,388.28 in fees and expenses incurred during the administrative ap-
peal.

Neither the ALJ nor the Department responded to the Company’s re-
quest. For nearly a year, the Company filed supplemental affidavits and
motions with the ALJ requesting fees, interest, and expenses (together,
fees). The Company repeatedly asked the insurance commissioner for clar-
ification of the pending motion for fees but received no response. Finally,
in 2022, the Bureau tendered a check to the Company for the $2,855,329 it
claimed to be owed on the original reimbursement claim. The Bureau said
the check was “full and complete payment” of all sums due, without ad-
dressing the pending motion for fees in connection with the administra-
tive-review litigation. The Company did not cash the check.

C

The Company instead sought judicial review and an order of manda-
mus in the Marion Superior Court. It asked the court to order the Depart-
ment to rule on its pending motions. The Bureau and the Department op-
posed judicial review, arguing that the ALJ’s order for the Bureau to “fully
reimburse” the Company included reimbursement for fees incurred dur-
ing the administrative appeal. Thus, the Department did not “have any
further actions to take.”

After a hearing, the trial court granted the Company’s petition for judi-
cial review. The court found that the Company was entitled to fees in-
curred during the appeal, and the Department’s failure to rule on the
Company’s motions was an abuse of discretion and was arbitrary, capri-
cious, and contrary to law. The court remanded the case to the Depart-
ment with instructions to award the Company fees. The Company in-
curred additional attorneys’ fees on judicial review, and post-judgment-
interest continued to grow—amounting to over one million dollars in in-
terest as of the Bureau’s satisfaction of the judgment and $1,604,216.56 in
fees as of the trial court’s order granting judicial review.

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 5 of 19
The Bureau appealed the trial court’s order granting judicial review.
Our court of appeals reversed in a precedential opinion. Ind. Comp. Rating
Bureau v. Tech. Ins. Co., 247 N.E.3d 778 (Ind. Ct. App. 2024). It held that the
Company was not seeking reimbursement under the Reinsurance Agree-
ment, but an “equitable apportionment”—a claim governed by statute,
I.C. § 27-7-2-9, and not the parties’ agreements. Tech. Ins. Co., 247 N.E.3d at
782–83. The court found that the Department had no authority under sec-
tion 27-7-2-9 to review the Company’s claims for fees because those claims
were not presented first to the Bureau. Id. at 784.

The Company then sought transfer, which we grant today, ___ N.E.3d
____ (Ind. 2026), thus vacating the appellate opinion. Ind. Appellate Rule
58(A).

II

We affirm the trial court’s judgment granting judicial review to the
Company. The Company needed to exhaust administrative remedies with
the Bureau and the Department of Insurance, and on this record the Com-
pany did so. We thus remand to the trial court to calculate and award at-
torneys’ fees, interest, and expenses. The Company need not go back to
square one in front of the Bureau and its Governing Board to seek collat-
eral relief in connection with its request for administrative review.

First, we establish that the Company is entitled to prejudgment interest,
attorneys’ fees, and expenses pending administrative appeal and judicial
review. Second, we explain that the Company may seek this relief on judi-
cial review because it properly exhausted its administrative remedies.

III

The Company is entitled to fees incurred during its administrative ap-
peal before the Department and on judicial review because the Bureau
breached its agreements with the Company. The Reinsurance Agreement
provides that “any punitive, exemplary, compensatory, or consequential
damages . . . , including such reasonable attorneys’ fees and other defense
costs . . . , shall be deemed to be a Loss reinsurable” to the Servicing Car-
rier, and the carrier “is entitled to reimbursement.” The Bureau must re-
imburse the Company for all settlements the Company made in

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 6 of 19
connection with Assigned Risk Policies. “Loss settlements made in good
faith by the Servicing Carrier, whether under strict contract conditions or
by way of compromise, shall be binding unconditionally upon the [Bu-
reau].”

Here, the Company settled the Omega/McWorthey litigation in good
faith for $2,050,000 plus $805,329 in attorneys’ fees and costs. Under the
controlling documents, the Bureau was required to reimburse the Com-
pany once it submitted its claim unless the Company incurred this loss
due to willful misconduct or fraud. The Bureau claimed the Company
handled the Omega/McWorthey litigation fraudulently, but the ALJ deter-
mined this objection to be baseless. Thus, the Bureau, which should have
reimbursed the Company, breached the Reinsurance Agreement when it
denied the Company’s claim.

Because the Bureau breached its agreements with the Company, we
must determine whether the Company may recover interest on the judg-
ment in a breach-of-contract action. “Prejudgment interest is allowed to
compensate for loss of the use of money where a simple mathematical
computation can operate on an amount for which the defendant is found
to be liable.” Ind. Dep’t of Pub. Welfare v. Chair Lance Serv., Inc., 523 N.E.2d
1373, 1379 (Ind. 1988). In a breach-of-contract action, prejudgment interest
is appropriate when “the breach did not arise from tortious conduct, the
amount of the claim rests on a simple calculation, and the trier of fact does
not need to exercise its judgment to assess the amount of damages.” Care
Grp. Heart Hosp., LLC v. Sawyer, 93 N.E.3d 745, 757 (Ind. 2018) (footnote
omitted).

The Company submitted its reimbursement claim to the Bureau in
2017, but the Bureau did not tender payment until 2022. The claimed
amount of $2,855,329 was fixed when the Company submitted the claim in
July 2017, and the Bureau has never disputed this amount. Thus, the
amount of the claim has been ascertainable from the start, and assessing
prejudgment interest rests on a simple calculation. We hold that the Com-
pany is entitled to prejudgment interest.

As for attorneys’ fees, the general rule in Indiana is that each party pays
its own fees. River Ridge Dev. Auth. v. Outfront Media, LLC, 146 N.E.3d 906,

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 7 of 19
912 (Ind. 2020). But there are exceptions to the rule. A fee-shifting statute
may govern the dispute. See, e.g., I.C. § 34-52-1-1(b). Or the parties, by
contract, may agree that the winner of any dispute between them is enti-
tled to recover its fees from the other. Reuille v. E.E. Brandenberger Constr.,
Inc., 888 N.E.2d 770, 771 (Ind. 2008). We review questions of contractual
interpretation de novo. Lake Imaging, LLC v. Franciscan All., Inc., 182
N.E.3d 203, 206 (Ind. 2022).

The Servicing Carrier Agreement contains a fee-shifting provision that
entitles the “prevailing Party” to “attorneys’ fees, expenses and costs.”
Though the agreement does not define “prevailing Party”, that omission is
no obstacle here. When a contract term is undefined, we will “turn to
sources that reflect the ordinary meaning of the term at the time the con-
tract was executed.” Reuille, 888 N.E.2d at 771. The Servicing Carrier
Agreement was executed in 2013. The next year’s edition of Black’s Law
Dictionary defines prevailing party as one “in whose favor a judgment is
rendered, regardless of the amount of damages awarded.” Prevailing
Party, Black’s Law Dictionary 1298 (10th ed. 2014). This definition follows
how our case law defines “prevailing party”. Reuille, 888 N.E.2d at 771.

We hold that the Company is a prevailing party. The ALJ issued a judg-
ment in the Company’s favor when it granted summary judgment on the
reimbursement claim. The ALJ held that the Bureau was “unconditionally
bound” to accept the Company’s reinsurance claim and ordered full reim-
bursement to the Company. And the ALJ confirmed repeatedly that the
Bureau’s opposing arguments lacked merit. Even the Bureau agreed at
oral argument before us that if the Company’s fee claim was proper—an
issue we take up later, infra, at 13—then the Company is entitled to fees.
Thus, the Company is a prevailing party and is entitled to fees under the
agreement.

Having determined that the Company is entitled to its fees incurred in
connection with the Omega/McWorthey litigation, we address next
whether it can recover them.

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 8 of 19
IV

Whether the Company is entitled to relief rests on two questions: first,
whether the Company had to follow the dispute-resolution provisions set
out in the Assigned Risk Plan and agreements, limiting the Company’s re-
lief in the trial court to judicial review under the Administrative Orders
and Procedures Act; second, assuming the Company is limited to seeking
recourse under AOPA, whether the Company properly sought judicial re-
view. The answer to both, we hold, is yes. We address each in turn.

A

The Company argues that it did not have to exhaust remedies in its
claim for fees because the dispute is based in contract. As the Bureau vio-
lated the Servicing Carrier and Reinsurance agreements, the Company ar-
gues it can bring this breach-of-contract claim to the trial court immedi-
ately. Two issues govern this inquiry. The first is whether the Bureau is a
“state agency” subject to AOPA. The second is whether, even if the Bu-
reau is not a state agency, the applicable contracts’ dispute-resolution pro-
cedures nevertheless require exhaustion of administrative remedies and
limit the Company’s recourse to judicial review. We hold that the Bureau
is not a state agency, but that the Company’s membership in the Bureau
through the Assigned Risk Plan, and its agreements with the Bureau, cre-
ate an administrative remedy the Company had to fulfill before proceed-
ing to court.

1

AOPA governs the procedure for seeking judicial review from the final
decisions of administrative agencies. I.C. ch. 4-21.5-5. When it applies,
AOPA is the “exclusive means for judicial review” of those agency deci-
sions. I.C. § 4-21.5-5-1. Generally, a party must be aggrieved by a “final
agency action” to seek judicial review. Id. §§ 4-21.5-5-2(b), -3. An agency
action is final, and thus ripe for review, only if the petitioner exhausts its
administrative remedies, discussed infra at 16. Matter of R.L., 246 N.E.3d
257, 260 (Ind. 2024).

We enforce AOPA’s exhaustion requirement strictly. “Premature litiga-
tion may be avoided, an adequate record for judicial review may be

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 9 of 19
compiled, and agencies retain the opportunity and autonomy to correct
their own errors.” Turner v. City of Evansville, 740 N.E.2d 860, 862 (Ind.
2001) (citation omitted). If a party must exhaust administrative remedies
under AOPA, but fails to do so, then courts are “completely ousted of sub-
ject matter jurisdiction to hear the case at all.” Austin Lakes Joint Venture v.
Avon Utils., Inc., 648 N.E.2d 641, 644 (Ind. 1995).

The Company argues that AOPA’s exhaustion requirement should not
apply here. This dispute, it says, is like any other “standard breach of con-
tract action” between two private entities, so the Department could hear
and consider the request for fees in the first instance without the Com-
pany having to exhaust administrative remedies before the Bureau. It is
true that exhaustion of remedies typically is not required in breach-of-con-
tract claims, even where an agency might be involved indirectly. Id. at
649–50. Thus, a breach-of-contract claim between private parties is gener-
ally not a matter where administrative bodies assume jurisdiction. Fratus
v. Marion Cmty. Schs. Bd. of Trs., 749 N.E.2d 40, 46 (Ind. 2001).

The first issue is whether the Bureau is a state agency. If so, then our
analysis ends here, and any decision by the Bureau must proceed through
AOPA on judicial review. I.C. § 4-21.5-5-1. At first glance, the Bureau is
not a state agency but a private, nonprofit, unincorporated association of
Indiana’s worker’s compensation insurers. See Risk Metrics Corp. v. Ind.
Comp. Rating Bureau, 85 N.E.3d 891, 893 (Ind. Ct. App. 2017). But the Bu-
reau does have agency-like qualities. It is a creature of statute empowered
to administer the Assigned Risk Plan with authority to manage and rate
worker’s compensation insurance in Indiana. I.C. §§ 27-7-2-1.1, -3.1, -28.1.

Though the lines are blurry, we agree the Bureau is not an agency in
this case. Even though the Bureau is private, exhaustion may be required
when the parties’ underlying agreements require pursuing administrative
remedies. See M-Plan, Inc. v. Ind. Comprehensive Health Ins. Ass’n, 809
N.E.2d 834, 838–39 (Ind. 2004). So we consider next whether the Company
had to follow the procedures set out in the applicable agreements and the
Assigned Risk Plan before suing in court.

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 10 of 19
2

Though the Bureau is a private entity, it has some of the trappings of a
state agency, prompting the question of how to treat an entity that is nei-
ther fish nor fowl.

This is not the first time we have dealt with an organization like the Bu-
reau. In M-Plan, a group of health maintenance organizations, HMOs,
sued the Indiana Comprehensive Health Insurance Association. Like the
Bureau in a worker’s compensation matter, the Association is a private or-
ganization, created by statute, that provides health insurance for those
who cannot obtain coverage from a private insurer. M-Plan, 809 N.E.2d at
835. Just as all worker’s compensation insurers in Indiana must be mem-
bers of the Bureau, all health insurers in Indiana must be members of the
Association. Ibid. The Association submitted a Plan of Operation to Indi-
ana’s insurance commissioner with an internal appeal procedure that
members must follow if challenging the Association’s actions. Id. at 836.
Rather than follow the prescribed internal dispute procedures, the HMOs
sued directly in court. Ibid.

We held that the Association, though private, is “something of a hy-
brid” with “some characteristics of a state agency.” Id. at 838. Because our
legislature directed the Association to create a plan of operation to fulfill
the statute’s goals, and the insurance commissioner had to approve it, the
plan’s “status is essentially the same as an administrative regulation.” Ibid.
Thus, the Association and the Department “provided an administrative
remedy pursuant to their statutory authority that the HMOs must pur-
sue.” Id. at 839. We noted that this process “does not foreclose judicial re-
view.” Ibid. Rather, any decision by the Department, as a state agency,
could be reviewed under AOPA. Ibid.

The facts here are strikingly similar. The legislature gave the Bureau
broad authority to establish and administer the Assigned Risk Plan with
the approval of the insurance commissioner. I.C. § 27-7-2-28.1(b). Once the
Bureau created the Assigned Risk Plan, and the commissioner approved
it, it became akin to an administrative regulation. M-Plan, 809 N.E.2d at
838. Thus, the Bureau provided an administrative remedy that the Com-
pany must follow. This provision requires the Company first to seek

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 11 of 19
review of any dispute by the Bureau, and then by the Bureau’s Governing
Board, and then by the Department. Under M-Plan’s rationale, once the
Department rendered a decision on the appeal, the Company’s sole ave-
nue for judicial review was through AOPA. Id. at 839.

This result makes sense for other reasons as well. First, the Company’s
status as a member of the Bureau requires exhaustion. “Just as a court will
not hear a dispute with an administrative agency before the challenger has
exhausted available administrative remedies, so may a dispute between
an association and one of its members be subject to exhaustion of internal
reviews provided by the association.” Id. at 838. As a worker’s compensa-
tion insurer in Indiana, the Company is automatically a member of the Bu-
reau. And, as a member, the Company must follow the required dispute-
resolution provisions established in the Assigned Risk Plan. Second, the
Company agreed to the same dispute-resolution provision in its agree-
ments with the Bureau, making an even stronger case for exhausting rem-
edies. See PSI Energy, Inc. v. AMAX, Inc., 644 N.E.2d 96, 99–100 (Ind. 1994)
(noting Indiana’s favor towards valid dispute-resolution and arbitration
agreements). For these two reasons, the Company had to exhaust reme-
dies despite the Bureau’s status as a private entity.

The Bureau argues that an alternative ground for requiring the Com-
pany to exhaust administrative remedies derives not from the parties’ con-
tracts but from a separate statute, Indiana Code section 27-7-2-9. This stat-
ute requires that “charges and expenses incident to the establishment and
operation of the bureau shall be borne equitably . . . among the members”.
I.C. § 27-7-2-9. And it authorizes relief for a member aggrieved by an ineq-
uitable “apportionment of the cost or costs made by the bureau or by fail-
ure of the bureau to make such equitable apportionment”. Ibid. Though
this is the basis on which our court of appeals found for the Bureau, we
hold that section 27-7-2-9 does not govern this dispute. This statute ap-
plies only to the equitable apportionment of the Bureau’s operating
charges and expenses among its members. It does not apply here to the
Company’s claim for reimbursement of outlays incurred in defending liti-
gation brought against one of its insureds.

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 12 of 19
Because of the dispute-resolution provisions, the Company must ex-
haust administrative remedies prescribed in the Assigned Risk Plan before
proceeding to court, and it is limited to judicial review under AOPA after
exhausting those remedies with the Department. We address next
whether the Company followed AOPA’s judicial-review requirements.

B

An aggrieved party faces several procedural hurdles before it may seek
judicial review of an agency order or decision. The Bureau makes two ar-
guments that the Company did not properly seek judicial review: first, the
Company’s petition for judicial review is improper because the Company
failed to petition from a “final agency action” of the Department; second,
the Company did not properly exhaust its remedies with the Bureau as to
claims for fees.

We reject both arguments. The Company properly sought judicial re-
view in the Marion Superior Court. On this record, the Department’s fail-
ure to act on the Company’s pending motions for fees was a final agency
action sufficient for judicial review under AOPA. In addition, the Com-
pany properly exhausted administrative remedies because it did not need
to seek separate review before the Bureau of its post-judgment claims for
fees. Those claims were collateral to the Company’s substantive claim for
reimbursement of its outlays in the Omega/McWorthey litigation. The
Company’s collateral claims did not arise until it obtained a final judg-
ment on the underlying reimbursement claim. Thus, the forum that
awarded relief on the substantive claim—the Department—was a proper
forum in which to seek (and obtain) relief on the collateral claims.

1

First, we consider the Bureau’s argument that judicial review was im-
proper because the Company did not seek review from a final agency ac-
tion. Thus, the Bureau maintains, the Company lacked standing under
AOPA.

An aggrieved party has standing to seek judicial review from a “final
agency action”. See id. § 4-21.5-5-3. A final agency action is either “the en-
try of an order designated as a final order” or “any other agency action

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 13 of 19
that disposes of all issues in a proceeding for all parties after the exhaus-
tion of all available administrative remedies concerning the action.” Id. §
4-21.5-1-6. AOPA defines “agency action” as including the “whole or a
part of an order”, the “failure to issue an order”, or an “agency’s perfor-
mance of, or failure to perform, any other duty, function, or activity under
[AOPA]”. Id. § 4-21.5-1-4. If agency action (or inaction) prejudices a party
and is “arbitrary, capricious, an abuse of discretion, or otherwise not in ac-
cordance with law”, a trial court on judicial review may “compel agency
action that has been unreasonably delayed or unlawfully withheld.” Id. §§
4-21.5-5-14(d)(1), -15(2).

We start with whether there was a “final agency action” sufficient for
the Company to seek judicial review under AOPA. The Bureau makes two
arguments that the agency action here does not allow the Company to
seek judicial review. First, the Bureau says the ALJ implicitly denied the
Company’s request for fees when it ordered the Bureau “to fully reim-
burse [the Company] for its payments made in connection [with] the
Omega McWorthey litigation.” The Bureau argues this was a final agency
action, but the Company did not timely seek review within thirty days of
the ALJ’s order. See id. § 4-21.5-5-5. We disagree with the Bureau. Nothing
suggests that the ALJ considered or denied the Company’s request for fees
when it ordered summary judgment for the Company. The ALJ’s detailed
decisions, rather, discussed only the merits of the appeal—whether the
Bureau must reimburse the Company’s underlying Omega/McWorthey
litigation expenses.

Second, the Bureau argues that if the ALJ did not dispose of the Com-
pany’s request at summary judgment and the Department did not re-
spond to its requests for a ruling, then no final agency action exists from
which the Company could seek review. Essentially, the Bureau asks us to
reward the Department’s silence in the face of the Company’s repeated re-
quests for a ruling on fees by foreclosing the Company’s attempt for judi-
cial relief. This argument fails. Inaction can qualify as “agency action” un-
der AOPA. For example, if an agency fails to “carry out an obligation” it
agreed to, it has failed to perform a “duty, function, or activity”, which is
an “agency action” under AOPA. Ind. Dep’t of Env’t Mgmt. v. Raybestos
Prods. Co., 897 N.E.2d 469, 474 (Ind. 2008), corrected on reh’g on other

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 14 of 19
grounds by 903 N.E.2d 471 (Ind. 2009). Furthermore, if an agency “fail[s]
to issue an order”, this too is an “agency action” under AOPA. I.C. § 4-
21.5-1-4(2). And an agency action becomes a “final agency action” under
AOPA when it “disposes of all issues in a proceeding”. Id. § 4-21.5-1-6(2).

The Department failed to issue an order regarding the Company’s re-
peated requests and motions for fees. Under the Assigned Risk Plan,
which the insurance commissioner approved, the Department must
“schedule and hold a hearing on the appeal” and “render a decision on
the appeal.” After the Company won on the merits of its reimbursement
claim, it sought a ruling on its motions for fees at least eight times within
one year. The Department never responded to these requests and never
notified the Company that it would not respond. Not until the Company
petitioned for judicial review did the Department suggest that it found the
matter to be closed and never intended to respond to the Company’s re-
quests. The Department’s somnolence here disposed of all pending issues
between the Company, the Bureau, and the Department. The Depart-
ment’s functional denial of the Company’s order—its “failure to issue an
order”—left no pending matters between the Company and the Bureau,
id. § 4-21.5-1-4(2), and was a final agency action sufficient for judicial re-
view.

Our conclusion that the Department’s silence was a final agency action
is highly fact sensitive. An agency’s mere delay in issuing an order will
not ordinarily constitute a final agency action. But the Department’s re-
peated failures to respond to the Company is precisely the type of “failure
to issue an order” that an aggrieved party can seek to remedy immedi-
ately through judicial review. We hold that the Department’s inaction was
a “final agency action” entitling the Company to seek relief on judicial re-
view.

2

AOPA also requires the aggrieved party to exhaust administrative rem-
edies and timely seek judicial review. Id. §§ 4-21.5-5-4, -5; Matter of R.L.,
246 N.E.3d at 260.

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 15 of 19
To begin, we find that the Company timely sought judicial review. Un-
der AOPA, a petition is timely “only if it is filed within thirty (30) days af-
ter the date that notice of the agency action that is the subject of the peti-
tion for judicial review was served.” I.C. § 4-21.5-5-5. As the basis for re-
view here was the Department’s inaction, the thirty-day time limit for
seeking judicial review did not begin until the Department served the
Company with notice that it refused to act on the Company’s motions.
Here, the Department did not serve the Company with notice or take any
other affirmative step to notify the Company of the Department’s inten-
tions until after the Company sought judicial review. Because the thirty-
day time limit had not yet started, the Company’s petition for judicial re-
view was timely.

The only remaining issue, then, is whether the Company properly ex-
hausted administrative remedies. No one disputes that the Company
properly exhausted administrative remedies on its underlying claim for
reimbursement. The question is whether the Company also had to exhaust
administrative remedies on its separate claim for fees before the Bureau
before seeking that relief from the Department.

In civil litigation, fee claims are generally collateral to the merits of the
underlying claims for relief. See Ray Haluch Gravel Co. v. Cent. Pension
Fund of Int’l Union of Operating Eng’rs & Participating Emp’rs, 571 U.S. 177,
185–86 (2014) (holding that issues of attorneys’ fees and costs are collateral
to a merits judgment’s becoming final for appeal purposes). In other
words, a party requests fees only after prevailing and having judgment
entered in its favor. Indeed, a “request for attorneys’ fees almost by defini-
tion is not ripe for consideration until after the main event reaches an end.
Entertaining such petitions post-judgment is virtually the norm.” R.L.
Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 460 (Ind. 2012).

Prejudgment interest also is collateral to a claim’s merits. It compen-
sates the prevailing party for the time value of money lost while litigation
is pending. Song v. Iatarola, 76 N.E.3d 926, 939 (Ind. Ct. App. 2017). It is
calculated from the date the party demanded the money owed to the date
the court enters judgment for that party. Ibid. To calculate the amount
owed for such interest, the court must know the amount of the judgment

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 16 of 19
and how long the adverse party withheld the money sought. As with fees,
“it seems to make practical sense to pursue prejudgment interest by
means of a post-trial motion.” R.K.W. Homes, Inc. v. Hutchison, 198 N.E.3d
405, 412 (Ind. Ct. App. 2022).

Here, the parties themselves contemplated that the issue of fees would
not arise until one party prevailed on the merits. The Servicing Carrier
Agreement contains a fee-shifting provision awarding “attorneys’ fees, ex-
penses and costs” to the “prevailing Party”. The term “prevailing Party”
presupposes that one of the parties must first prevail and have judgment
entered in its favor. Relevant here, the Company did not become a prevail-
ing party—and thus was not entitled to fees—until the ALJ granted its
motion for summary judgment. Its “right to recover attorney fees”, in
other words, “did not become ripe until after the judgment.” Id. at 411.

In addition to the parties’ own agreements, there are sound policy rea-
sons for allowing the Company to seek fees from the Department without
having first presented these collateral claims to the Bureau. The point of
an exhaustion-of-remedies requirement, after all, is to allow parties and
courts “the benefit of [the agency’s] experience and expertise”. Matter of
R.L., 246 N.E.3d at 261 (alteration in original) (quoting Advantage Home
Health Care, Inc. v. Ind. State Dep’t of Health, 829 N.E.2d 499, 503 (Ind.
2005)). Exhaustion of remedies also prevents premature litigation, com-
piles an adequate record for judicial review, and gives the agency auton-
omy to correct its own errors. Ibid. And it “avoid[s] collateral, dilatory ac-
tion[s]” and “ensure[s] the efficient, uninterrupted progression of admin-
istrative proceedings and the effective application of judicial review.” Aus-
tin Lakes, 648 N.E.2d at 644 (quoting Uniroyal, Inc. v. Marshall, 579 F.2d
1060, 1064 (7th Cir. 1978)).

Requiring the Company to present its interest and fee claims to the Bu-
reau first would advance none of these policy goals. The Bureau has no
special expertise regarding such awards. There was no need for the Bu-
reau to prepare an adequate factual record, as these claims are collateral to
the case’s underlying merits. And, most importantly, requiring the Com-
pany to go back to the Bureau to exhaust its claims for fees would be the
quintessence of a “collateral, dilatory action”. Ibid. (quoting Uniroyal, 579

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 17 of 19
F.2d at 1064). The Company litigated its reimbursement claim in front of
the Bureau and the Department for nearly five years. Now that the Com-
pany has prevailed on the merits, the Bureau wants the Company to re-
start this cycle to recover the fees that everyone now agrees it can recoup.
When the outcome is foreordained, there is nothing to be gained by insist-
ing on a pointless process.

That leaves the question of the proper remedy. Though, as the separate
opinion notes, the Company sought an order compelling the Department
to award fees, post, at 2, the Department is not the only forum that may do
so. AOPA authorizes trial courts to “compel agency action that has been
unreasonably delayed or unlawfully withheld.” I.C. § 4-21.5-5-15(2). We
have held this statute “authorizes a court to enter an affirmative order”
compelling repayment. Chair Lance, 523 N.E.2d at 1379. Given the Depart-
ment’s inaction in responding to the Company’s motions for fees for al-
most a year, we hold that the Department unlawfully withheld its order
on fees. Thus, we remand this case to the trial court to calculate and award
repayment. App. R. 66(C)(10).

---

For these reasons, we affirm the trial court’s judgment for the Company
with one modification. We remand to the trial court—not the Depart-
ment—with instructions to award prejudgment interest and reasonable at-
torneys’ fees and expenses the Company incurred during administrative
review and judicial review, including the fees and expenses it incurred lit-
igating this appeal. And we direct that further proceedings in this matter
be conducted with all deliberate speed.

Massa, Goff, and Molter, JJ., concur.

Rush, C.J., concurs in part and dissents in part with separate opin-
ion.

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 18 of 19
ATTORNEY FOR APPELLANT INDIANA COMPENSATION RATING
BUREAU
E. Scott Treadway
EST LAW, LLC
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE TECHNOLOGY INSURANCE COM-
PANY
Maggie L. Smith
FBT Gibbons LLP
Indianapolis, Indiana

Linda L. Pence
Suzannah Wilson Overholt
Amundsen Davis LLC
Indianapolis, Indiana

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 19 of 19
Rush, C.J., concurring in part and dissenting in part.

I agree with the Court that Technology Insurance Company is entitled
to prejudgment interest, attorney fees, and expenses (collectively “fees”)
and that Technology had to exhaust its administrative remedies through
the Bureau before appealing to the Department. Ante, at 6–13. I also agree
that, on the particular facts of this case, the Department’s failure to act on
Technology’s motions was judicially reviewable as a final agency action.
Id. at 13–16. And I agree that Technology, having prevailed on its
substantive claim, need not return to the Bureau to exhaust its requests for
fees. Id. at 16–18. But in addition to the reasons the Court gives, I conclude
that Technology need not do so because the proceedings before the
Department were de novo under the Administrative Orders and
Procedures Act (AOPA). And I part ways with the Court on the
appropriate remedy. In my view, we should remand to the Department,
not the trial court, to calculate and award fees. See id. at 18. Ultimately, I
concur in Part III and also in Part IV, except that I respectfully dissent
from that section’s decision to remand the case to the trial court. 1

I. Technology need not exhaust its requests for fees
before the Bureau because the proceedings before
the Department were de novo.
The Court concludes that Technology need not exhaust its requests for
fees for two reasons: (1) those requests ripened only once Technology
prevailed at the Department; and (2) exhausting those requests before the
Bureau would advance no policy goals. Ante, at 16–18. While I agree with
the Court’s reasoning, I find another reason more compelling.

Technology need not exhaust its requests before the Bureau because,
under AOPA, the proceedings before the Department were de novo. The

1I also find the Bureau’s res judicata argument, not discussed by the Court, unpersuasive.
Technology’s counterclaim for fees was not dismissed with prejudice in cause number 49D12-
2110-PL-34039.
Plan of Operation—incorporated by reference into other agreements—
required the Department to “hold a hearing on [a Servicing Carrier’s]
appeal” from a decision of the Bureau “consistent with” AOPA. And
AOPA provides for ALJs to conduct administrative proceedings before an
agency—like the Department—and specifies that those proceedings “are
de novo.” Ind. Code § 4-21.5-3 -14(d). “De novo” means the proceedings
before an ALJ constitute a new beginning as if there had never been a
decision in any lower forum. Cf. Taylor v. State, 120 N.E.3d 635, 638–39
(Ind. Ct. App. 2019) (explaining that a trial de novo is not an appeal but a
fresh start for the entire case). And so, because the ALJ conducts the
proceedings de novo, there is no basis for the ALJ to decide only some of
the issues and then remand the remaining issues to a previous
administrative forum.

In short, because the proceedings before the Department were de novo
and the fees Technology seeks are collateral to its substantive claim,
Technology need not return to the Bureau to request those fees.

II. We should remand to the Department to calculate
and award fees.
The Court ultimately affirms the trial court’s judgment in Technology’s
favor “with one modification.” Ante, at 18. Whereas the trial court ordered
the Department to award fees, the Court instead directs the trial court to
do so. Id. This remedy conflicts not only with the relief that Technology
sought—an order compelling the Department to act on its fee requests—
but also the relief that AOPA provides in these circumstances. See I.C. § 4-
21.5-5-15(2) (allowing a court to “compel agency action that has been
unreasonably delayed or unlawfully withheld”). And these circumstances
are distinct from those in the case cited by the Court, where the trial court
compelled an agency to pay money it owed to the petitioner. Ante, at 18
(citing Ind. Dep’t of Pub. Welfare v. Chair Lance Serv., Inc., 523 N.E.2d 1373,
1379 (Ind. 1988)). Here, the withheld action was the Department’s failure
to rule, not its failure to pay money. We should therefore simply affirm
the trial court’s judgment and remand to the Department to calculate and
award fees.

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 2 of 3
For these reasons, I concur in Part III and also in Part IV, except that I
respectfully dissent from that section’s decision to remand the case to the
trial court.

Indiana Supreme Court | Case No. 26S-PL-83 | March 17, 2026 Page 3 of 3