Gillman v. Department of Financial Institutions

In Gillman v. Department of Financial Institutions, 782 P.2d 506 (Utah 1989), two financial institutions were mismanaged and ultimately filed bankruptcy, resulting in losses to investors. Id. at 507-08. The bankruptcy trustee brought suit against the Utah Department of Financial Institutions, alleging that the bankruptcies were caused by the department's negligence in failing to properly inspect and regulate the lenders as required by statute. Id. at 508. The principal issue we addressed was whether the alleged negligence resulted from a licencing decision or from some other duty separable from the department's licensing function. Id. at 509. The Court rejected the theory that the statutorily mandated regulation of a license holder is not a licensing decision. Even though the statutes mandating that the department inspect the lenders on a yearly basis did not specifically reference the lenders' licenses, the Court noted that "the only sanction the Department can impose on a licensed financial institution for misconduct of any kind is to suspend or revoke the financial institution's operating license." Id. at 511. Therefore, "any injury resulting from a Department action or inaction ultimately results from a failure to suspend or revoke the lender's license, an immune act." Id. The Court further held that a statute mandating regulation need not explicitly reference an entity's license in order for the regulation to constitute a licensing decision. For example, one of the relevant statutes did not refer to a lender's license but simply stated that if serious problems were detected, "the Department is authorized to take possession of any banking institution and suspend its privilege of conducting business." Id. at 511 n.7. The Court concluded that by taking such action, "the Department essentially suspends or revokes the financial organization's operating license." Id.