Filed: Apr. 30, 2018
Latest Update: Mar. 03, 2020
Summary: FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _ No. 1D17-1081 _ FAIR INSURANCE RATES IN MONROE, INC., Appellant, v. OFFICE OF INSURANCE REGULATION and CITIZENS PROPERTY INSURANCE CORPORATION, Appellees. _ On appeal from the Office of Insurance Regulation. David Altmaier, Commissioner. April 30, 2018 B.L. THOMAS, C.J. Appellant, Fair Insurance Rates in Monroe, Inc., appeals a final order from the Office of Insurance Regulation (OIR) denying its request for a formal administrative hearing regard
Summary: FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _ No. 1D17-1081 _ FAIR INSURANCE RATES IN MONROE, INC., Appellant, v. OFFICE OF INSURANCE REGULATION and CITIZENS PROPERTY INSURANCE CORPORATION, Appellees. _ On appeal from the Office of Insurance Regulation. David Altmaier, Commissioner. April 30, 2018 B.L. THOMAS, C.J. Appellant, Fair Insurance Rates in Monroe, Inc., appeals a final order from the Office of Insurance Regulation (OIR) denying its request for a formal administrative hearing regardi..
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-1081
_____________________________
FAIR INSURANCE RATES IN
MONROE, INC.,
Appellant,
v.
OFFICE OF INSURANCE
REGULATION and CITIZENS
PROPERTY INSURANCE
CORPORATION,
Appellees.
___________________________
On appeal from the Office of Insurance Regulation.
David Altmaier, Commissioner.
April 30, 2018
B.L. THOMAS, C.J.
Appellant, Fair Insurance Rates in Monroe, Inc., appeals a
final order from the Office of Insurance Regulation (OIR) denying
its request for a formal administrative hearing regarding
windstorm insurance rates established by OIR for Citizens
Property Insurance Corporation. We affirm.
I. Background and Procedural History
Citizens was created in 2002 by the Florida Legislature to
provide insurance coverage to property owners who are unable to
procure insurance in the private market. See § 627.351(6), Fla.
Stat. Citizens is statutorily required to submit proposed rates at
least annually to OIR, which in turn establishes Citizens’ rates
by final order after consideration of the proposal. See
§ 627.351(6)(n)1., Fla. Stat. Appellant is a corporation whose
stated purpose is “to advocate for . . . the promulgation of fair,
impartial, and actuarially-sound windstorm insurance rates [for
residential and commercial property owners] in Monroe County,
Florida.”
In July and August 2016, Citizens submitted to OIR its
proposed windstorm insurance rates for residential and
commercial properties in all Florida counties, including Monroe
County, to take effect February 1, 2017. OIR accepted public
comments, and on August 18, 2016, it conducted a public hearing
on the proposed rate increases. At the hearing, representatives
from Citizens explained the reasoning and methodology behind
the rate proposals, and individuals, including Appellant’s
representatives, were able to comment. Appellant’s
representatives expressed concern that the four hurricane models
used for assessing risk returned highly divergent results for
Monroe County, and contended that the rate increases were not
justified in light of Monroe County’s geographical characteristics,
building standards, and history of premiums in excess of claims.
Representatives from Citizens acknowledged these issues and
indicated that Citizens would be eager to get additional guidance
from the Florida Commission on Hurricane Loss Projection
Methodology about an improved approach for wind ratemaking in
Monroe County.
OIR approved Citizens’ proposed windstorm insurance rates,
including those for Monroe County, and issued Order 195073-16
(establishing residential rates) and Order 197820-16
(establishing commercial rates) on September 16 and 30, 2016,
respectively. However, in recognition of the divergent hurricane
model results for Monroe County, OIR indicated that it would
request a review by the Florida Commission on Hurricane Loss
Projection Methodology and noted that, at Appellant’s request,
Citizens had agreed to fund a study to evaluate the rates in light
of Monroe County’s higher building code standards. OIR stated
that it would require Citizens to submit an additional rate filing
based on these additional studies, if appropriate.
2
Following OIR’s approval of the rates, Appellant sent a letter
to Citizens, requesting relief under section 627.371(1), Florida
Statutes. 1 The letter stated that Appellant and its Citizens
policyholder members were “aggrieved by the rating plan, rating
system, and regulated underwriting rules followed or adopted . . .
by Citizens and [OIR] that [led] to the orders issued.” Appellant
asserted that the rates were excessive, unfairly discriminatory,
and not actuarially sound, and that they violated “both the spirit
and substance of chapter 627, Florida Statutes.” Appellant
requested that Citizens recalculate the rates for Monroe County,
giving greatest consideration to the projections of the RMS model
(the hurricane model showing the lowest risk for Monroe
County), and reevaluating several factors, including the county’s
1 Section 627.371(1), Florida Statutes (2016), states:
(1) Any person aggrieved by any rate charged, rating
plan, rating system, or underwriting rule followed or
adopted by an insurer, and any person aggrieved by any
rating plan, rating system, or underwriting rule
followed or adopted by a rating organization, may
herself or himself or by her or his authorized
representative make written request of the insurer or
rating organization to review the manner in which the
rate, plan, system, or rule has been applied with respect
to insurance afforded her or him. If the request is not
granted within 30 days after it is made, the requester
may treat it as rejected. Any person aggrieved by the
refusal of an insurer or rating organization to grant the
review requested, or by the failure or refusal to grant all
or part of the relief requested, may file a written
complaint with the office, specifying the grounds relied
upon. If the office has already disposed of the issue as
raised by a similar complaint or believes that probable
cause for the complaint does not exist or that the
complaint is not made in good faith, it shall so notify the
complainant. Otherwise, and if it also finds that the
complaint charges a violation of this chapter and that
the complainant would be aggrieved if the violation is
proven, it shall proceed as provided in subsection (2).
3
geography, its construction standards, and its premium-versus-
loss history. Appellant requested, in the alternative, that
Citizens suspend the effective date of the new rates until after
completion of the two studies discussed in the rate orders.
Citizens responded to the letter, stating that it could not
provide relief, because OIR established the rates, not Citizens.
Citizens further noted that section 627.371(1), Florida Statutes,
allows a challenge to a rate, rate plan, or rule that has been
applied, but does not address challenges to the establishment of a
rate.
Appellant then filed a complaint with OIR under section
627.371(1), asserting that its members were “aggrieved by the
rating plan, rating system and related underwriting rules” that
led to the two rate orders. Appellant asserted that the rates for
Monroe County were selected using widely divergent models,
leading to excessive, discriminatory, non-actuarially sound, and
unaffordable rates. Appellant requested that Citizens be ordered
to recalculate the rates, or alternatively, ordered to suspend the
effective date pending completion of the two studies.
OIR responded to Appellant’s letter, stating that under
section 627.371(1), OIR was required to determine whether the
complaint provided probable cause to believe a provision of
chapter 627 had been violated. OIR noted that before issuing its
rate orders, it considered the points raised in the complaint,
which had been presented at the public hearing and in public
comments. Taking Appellant’s representations in the complaint
as true, OIR determined there was no probable cause to believe
the established rates were excessive, discriminatory, or not
actuarially sound, or that they otherwise violated any provision
of chapter 627, Florida Statutes. And because there were no
disputed issues of material fact, the provisions of section
120.57(2) (governing informal administrative proceedings), rather
than 120.57(1) (governing formal proceedings before an
administrative law judge) applied. Therefore, OIR provided
deadlines under section 120.57(2) for Appellant to submit oral or
written evidence in opposition to OIR’s refusal to act as
requested.
4
Appellant filed a petition for formal administrative hearing
the following day, and later filed an amended petition. In its
amended petition, Appellant sought formal administrative review
under sections 120.569 and 120.571(1), Florida Statutes, of the
two rate orders as well as OIR’s letter finding no probable cause.
Appellant asserted that its members’ substantial interests were
affected by the rates, and that several disputed issues of material
fact existed with regard to the methodology used for determining
the rates and whether the rates met the standards under chapter
627 (affordable, actuarially sound, and not excessive, inadequate,
or unfairly discriminatory).
OIR issued its final order on the petition and separately
addressed Appellant’s request for a hearing on the probable-
cause letter and on the rate orders themselves. As to the rate
orders, OIR dismissed the petition, concluding that Appellant’s
“attempt to challenge the Rate Orders under [s]ections 120.569
and 120.57, Florida Statutes, is precluded under Florida law,”
because the rate orders are final orders not subject to
administrative challenge. As to Appellant’s request for a formal
hearing on OIR’s finding of no probable cause under section
627.371, Florida Statutes, OIR denied the petition and reiterated
its position that no disputed issues of material fact existed,
stating, “assuming that Section 627.371, Florida Statutes, applies
to the issues raised[,] . . . Appellant has not submitted any
evidence or additional information that would provide probable
cause . . . that the established rates violate an applicable
provision of Chapter 627, Florida Statutes.” Appellant now
challenges both decisions in the final order.
II. Analysis
As our consideration of these issues requires an examination
of several statutory provisions, our review is de novo. See, e.g.,
Kuria v. BMLRW, LLLP, 101 So. 3d 425, 426 (Fla. 1st DCA
2012).
A. Rate Orders
OIR determined that administrative review of the rate
orders was precluded under section 627.351(6)(n)1., Florida
Statutes, which requires OIR to establish the rates by a “final
5
order.” Appellant argues that, as an entity whose substantial
interests are affected by the rates, administrative review of the
final orders was available to it. We conclude that section
627.351(6)(n)1. does not provide a point of entry for Citizens’
policyholders to seek review of final rate orders issued by OIR.
Section 627.351(6)(n)1., provides:
Rates for coverage provided by [Citizens] must be
actuarially sound and subject to s. 627.062, except as
otherwise provided in this paragraph. [Citizens] shall
file its recommended rates with the office at least
annually. [Citizens] shall provide any additional
information regarding the rates which the office
requires. [OIR] shall consider the recommendations of
the board and issue a final order establishing the rates
for [Citizens] within 45 days after the recommended
rates are filed. [Citizens] may not pursue an
administrative challenge or judicial review of the final
order of the office.
(Emphasis added.) Appellants argue that because section
627.351(6)(n)1. only explicitly prohibits Citizens from seeking
administrative or judicial review of a final rate order, other
individuals and entities affected by the order must be entitled
pursue these avenues. See Moonlit Waters Apartments, Inc. v.
Cauley, 666 So. 2d 898, 900 (Fla. 1996) (applying the canon of
statutory construction expressio unius est exclusio alterius).
Appellants further argue that the issuance of a rate order under
section 627.351(6)(n)1. is “final agency action,” thus creating an
entry point for administrative review. We must disagree.
We must first look to the plain and ordinary meaning of the
text. See Rollins v. Pizzarelli, 761 So. 2d 294, 297-98 (Fla. 2000).
Where an ambiguity exists in the text, courts will look behind the
plain language and employ rules of statutory construction in
order to ascertain the meaning. See, e.g., Gulfstream Park
Racing Ass'n v. Tampa Bay Downs, Inc.,
948 So. 2d 599, 606-07
(Fla. 2006). We conclude that the plain text of section
627.351(6)(n)1. is not clear and unambiguous in regard to
whether a Citizens policyholder can seek administrative review
of a final order establishing rates. However, in light of the
6
statutory framework under which Citizens operates and the fact
that a “final order” signifies the conclusion—not the start—of the
administrative process, we hold that Appellant was precluded
from seeking review of the final orders establishing Citizens’
rates. We thus affirm the dismissal of Appellant’s petition for an
administrative hearing on the rate orders.
Under the Administrative Procedure Act, a “final order” is
issued at the conclusion of any formal or informal administrative
proceedings, and constitutes final agency action subject to
judicial review by the appellate court. 2 See § 120.52(7); 120.569;
see also Fla. R. App. P. 9.190(b)(1). Thus, assuming that “final
order” under section 627.351(6)(n)1. has the same meaning as
under the Administrative Procedure Act, its issuance would
signify the point at which the administrative process has ended.
Appellant points out, however, that a “final order” under the
Administrative Procedure Act “results from a proceeding” under
one of several enumerated provisions of the Act: section 120.56
(rule challenges), section 120.565 (declaratory statements),
section 120.569 (decisions affecting substantial interests), section
120.57 (formal and informal administrative hearings), section
120.573 (mediation of disputes), or section 120.574 (summary
hearings). § 120.52(7), Fla. Stat. (emphasis added). Because the
issuance of a final order under section 627.351(6)(n)1. does not
result from any of these enumerated proceedings, it does not fit
squarely within the definition under the Act.
Despite the lack of a clear definition of “final order” as used
in section 627.351(6)(n)1., its meaning is made clear by
examining the statutory framework used for establishing
Citizens’ rates, as compared to the process utilized for private
insurers. Unlike Citizens, private insurers are entitled to
administratively challenge OIR’s rating decisions. See
2 Within the definition of “final order” in section 120.52(7),
“final agency action” is the end point of the administrative
proceedings, triggering judicial review under section 120.68(1).
See Sowell v. State, 136 So. 3d 1285, 1288 (Fla. 1st DCA 2014)
(“Final agency action is that which brings the administrative
adjudicatory process to a close.”).
7
§ 627.062(6)(a), Fla. Stat. (2016). If OIR determines a private
insurer’s proposed or charged rate 3 is excessive, inadequate, or
unfairly discriminatory, OIR must notify the insurer of its intent
to disapprove the rate, which constitutes “agency action” subject
to administrative challenge by the insurer. 4 § 627.062(2). Under
section 627.062(6)(a), when the insurer seeks administrative
review of this “agency action,” the entirety of the proceeding is
expedited, from the formal administrative hearing, to the
administrative law judge’s recommended order, to the agency’s
final order, and finally to judicial review with the appellate court.
§ 627.062(6)(a).
Notably, Citizens’ rates were formerly established in the
same manner as private insurers, but the process was amended
in 2007 to omit the step whereby OIR provided notice of its intent
to approve or disapprove the proposed rates. See Ch. 2007-1,
§ 21, Laws of Fla. Now, OIR directly establishes the rates by a
final order. § 627.351(6)(n)1., Fla. Stat. The crux of this change
is that it removes the “agency action” that would otherwise
provide a point of entry for administrative review. And the
statute goes a step further, precluding Citizens itself from seeking
the judicial review that ordinarily becomes available to the
insurer upon issuance of the “final order.” See §§ 120.68(1)(a) &
627.351(6)(n)1., Fla. Stat.
Reading these statutes together, we conclude that OIR’s
interpretation is the better reading of section 627.351(6)(n)1. See
3 Private insurers may either file proposed rates for OIR’s
approval before they take effect (“file and use”), or begin using
the rates and make its filing for OIR’s approval within 30 days
after the effective date (“use and file”). § 627.062(2)(a).
4 While we do not face the question of whether a policyholder
could administratively challenge OIR’s notice of intent to approve
or disapprove a private insurer’s proposed rates, we find no
reported case in which this has occurred. Rather, it appears the
policyholder’s point of entry is under section 627.371, Florida
Statutes, once excessive, inadequate, unfairly discriminatory,
unaffordable, or non-actuarially sound rates have been applied to
them.
8
Soc’y for Clinical & Med. Hair Removal, Inc. v. Dep’t of Health,
183 So. 3d 1138, 1145 (Fla. 1st DCA 2015) (“An agency’s
interpretation of an ambiguous statute or rule that it administers
is not clearly erroneous if it is within the range of possible and
reasonable interpretations.” (internal quotations and citations
omitted)). Because OIR’s final orders establishing Citizens’ rates
do not provide a point of entry for administrative review, we
affirm OIR’s order denying a formal administrative hearing on
the rate orders.
B. Determination of Probable Cause
Appellant’s amended petition also sought formal
administrative review of OIR’s determination under section
627.371(1), Florida Statutes, that there was no probable cause to
believe the established rates were excessive, unfairly
discriminatory, not actuarially sound, or otherwise in violation of
chapter 627. In denying the request, OIR stated that because it
accepted Appellant’s factual allegations as true for purposes of
determining probable cause, a formal hearing under section
120.57(1) was not warranted. We need not opine as to whether
OIR properly concluded there were no facts in dispute, as we
affirm based on the alternative ground proposed by OIR in this
appeal: that Appellant did not assert a cognizable claim under
section 627.371, Florida Statutes, because it challenged the
establishment of rates by OIR, not the application by Citizens of
rates with respect to insurance afforded to its members. See, e.g.,
Shands Teaching Hosp. and Clinics, Inc. v. Mercury Ins. Co. of
Fla., 97 So. 3d 204, 212 (Fla. 2012) (noting that the appellate
court should affirm where there is record support for the decision
reached, even if the reasoning used was incorrect).
Under section 627.371(1), Florida Statutes, anyone
“aggrieved by” an insurance rate, rating plan, rating system, or
underwriting rule is entitled to request review by the insurer or
rating organization of “the manner in which the rate, plan,
system, or rule has been applied with respect to insurance
afforded her or him.” (Emphasis added.) If the insurer refuses to
act as requested, the person may then file a written complaint
with OIR for a determination of whether probable cause exists to
believe the rate, rating plan, or rating system does not comply
9
with the standards outlined in chapter 627. § 627.371(2). If OIR
finds no probable cause, it must notify the complainant of that
determination; if it finds probable cause does exist, it must give
notice of the noncompliance to the insurer and take further action
if the noncompliance is not corrected. § 627.371(2)-(3).
We hold that because Appellant sought a probable-cause
determination with regard to rates not yet applied and insurance
not yet afforded to its members, its claim under section 627.371,
Florida Statutes, was premature. See § 627.371(1), Fla. Stat. At
the time Appellant requested relief from Citizens and sought a
probable-cause determination from OIR, the rates established in
the final orders were not in effect and had not been applied to
any policyholder. The claim was instead another attempt to seek
administrative review of the rate orders themselves, which was
precluded under Florida law for the reasons previously discussed.
III. Conclusion
We conclude that section 627.351(6)(n)1., Florida Statutes,
does not contemplate administrative review by Citizens’
policyholders of final rate orders. Further, while section 627.371,
Florida Statutes, does provide a point of entry for policyholders to
seek a probable-cause determination as to the legality of rates
applied with respect to insurance afforded to them, the rates
established in OIR’s final orders had not yet been applied when
Appellant sought review. We, therefore, agree with OIR that
Appellant was not entitled to a formal administrative hearing to
challenge either the rate orders or the probable-cause
determination. The order on appeal is affirmed.
AFFIRMED.
WETHERELL and WINSOR, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
10
Kenneth G. Oertel, Timothy J. Perry and Sidney C. Bigham, III,
of Oertel, Fernandez, Bryant & Atkinson P.A., Tallahassee, for
Appellant.
Shaw P. Stiller, Chief Assistant General Counsel, Alyssa S.
Lathrop, Assistant General Counsel, Office of Insurance
Regulation, Tallahassee, for Appellee Office of Insurance
Regulation.
Timothy W. Volpe and Thomas P. White of Adams and Reese
LLP, Jacksonville, for Appellee Citizens Property Insurance
Corporation.
11
