STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 82-161

)

BRADLEY EARL WASSERMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on April 13, 1982, in St. Petersburg, Florida. The issue for determination at the hearing was whether respondent's license as a disability insurance agent should be revoked or otherwise disciplined for violations of the Insurance Code, as charged in the Administrative Complaint dated December 29, 1981.

APPEARANCES

For Petitioner: Daniel Y. Sumner

428A Larson Building Tallahassee, Florida 32301

For Respondent: Barry M. Steagall

6500 Central Avenue

St. Petersburg, Florida 33707 INTRODUCTION

By an Administrative Complaint dated December 29, 1981, the respondent has been charged with certain violations of the Insurance Code, Chapter 626, Florida Statutes. In summary form, it is alleged that respondent submitted or caused to be submitted an authorization to honor checks drawn by the Union Casualty Company from the checking account of Jose M. and Maida Maldonado without their knowledge or consent. Paragraph 8 of the Complaint was dismissed by the petitioner at the beginning of the hearing.

In support of the factual allegations of the Complaint, petitioner presented the testimony of Jose M. Maldonado and Maida Maldonado. Petitioner's Exhibit A was received into evidence. Respondent testified in his own behalf and presented the testimony of Rayford M. Green, who was accepted as an expert witness in the field of handwriting analysis and examination of documents.

Respondent's Exhibits 1 through 5 were received into evidence.

Subsequent to the hearing, both parties submitted proposed recommended orders. To the extent that the parties' proposed findings of fact are not contained in this Recommended Order, they are rejected as being either not supported by competent, substantial evidence adduced at the hearing, immaterial

or irrelevant to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times relevant to this proceeding, respondent Bradley Earl Wasserman was licensed as a disability insurance agent in the State of Florida.

   
   

2. On or about July 1, 1981, respondent went to the home of Jose M. and Maida Maldonado for the purpose of discussing health insurance coverage. The Maldonados expressed their desires for the cheapest and best coverage for their money. The health insurance coverage purchased by the Maldonados from the respondent was to be issued through the Union Casualty Insurance Company and the Orange State Insurance Company.

   
   

3. The dispute in this case involves the manner in which the premium payments were to be paid for the health insurance coverage. Respondent explained to the Maldonados that there were four methods of premium payment: annual, semiannual, quarterly and monthly payments. The only way monthly payments could be accepted was through an automatic bank draft plan. The Maldonados did not feel that they could afford to pay an annual, semiannual or quarterly payment and desired to pay for their coverage on a monthly basis.

   They gave respondent a check to cover the premiums for the first two months, and desired to pay on a monthly basis thereafter. Respondent explained that the automatic withdrawal from their checking account would result in a savings to them of about $3.55 per month.

   
   

4. While the Maldonados each testified that they did not want their monthly premium payments to be automatically withdrawn from their checking account and did not authorize this form of payment, such testimony is inconsistent with the testimony of respondent and the documents received into evidence at the hearing. According to the respondent, it was against his company's policy to sell insurance with a monthly method of payment unless such payments were automatically withdrawn from the insured's bank account. The application for insurance bearing the signatures of both Jose and Maida Maldonado contains boxes for the type of billing and the mode of billing to be utilized. The "monthly" mode of billing was checked and the "ABC" type of billing was checked. (Respondent's Exhibit 1) "ABC" means "automatic bank check" plan or the automatic bank withdrawal method of payment. The application states that a Form 7139 must be completed for the "ABC" type of billing. The Maldonados both admitted that they signed this application for insurance.

   
   

5. Form 7139 is entitled "Request for Automatic Bank Check Plan" and "Authorization to Honor Checks Drawn by Union Casualty Company of Omaha, Nebraska." These completed forms with a signature of Jose Maldonado were received into evidence (Respondent's Exhibit 2), as was a blank deposit ticket for the Maldonado's checking account. (Petitioner's Exhibit A). Neither of the Maldonados could recall giving respondent a blank deposit slip. Mr. Maldonado could not recall placing his signature on Form 7139, but he did recognize one of the two signatures as his own. Respondent recalled that at the time Mr. Maldonado was signing this document, a small child was sitting on his lap and respondent had to help him hold the form while he was signing it. A handwriting expert could not positively identify the two signatures as either being those of Jose Maldonado or as being forgeries. The original document was not available

   and the expert was working from a copy. For this reason, he was unable to positively reach a conclusion on the authenticity of the signatures of Jose Maldonado on respondent's Exhibit 2. Mr. Maldonado admitted that he had not read every document he signed for the respondent.

   
   

6. The Maldonados became dissatisfied with their insurance coverage when they discovered that it would not pay for certain claims. On October 21, 1981, they instructed their bank to stop payment on the automatic drafts for their premiums. The Maldonados did not directly send a separate check to the insurance company for the September or October payments.

   
   

   CONCLUSIONS OF LAW

   
   

7. Respondent is charged in this proceeding with certain violations of the Insurance Code, Chapter 626, Florida Statutes, on the grounds that he submitted or caused to be submitted an authorization to honor checks from the bank account of Jose M. and Maida Maldonado without their knowledge or consent and contrary to their expressed desires. For this alleged offense, petitioner seeks to revoke or otherwise discipline respondent's insurance licenses.

   
   

8. The record in this case does not contain that degree of substantial competent evidence to sustain a finding of guilt on respondent's part. As stated in the case of Bowling v. Department of Insurance, 394 So.2d, 165, at 171 (Fla. 1st DCA, 1981):

   
   

   In a proceeding under a penal statute

   for suspension or revocation of a valuable business or professional license, the

   term 'substantial competent evidence' takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120.

   
   

9. The only evidence in this case in support of the factual allegations of the Complaint are the statements at the hearing of Mr. and Mrs. Maldonado that they did not desire to make their payments in a method that involved an automatic withdrawal from their checking account. As stated in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), and reiterated in the Bowling case, supra,

   
   

   The substantiality of evidence must take into account whatever

   in the record fairly detracts from its weight.

   
   

   Here, the record illustrates that the application for insurance admittedly signed by the Maldonados requests the "ABC" type of billing. That box on the application states "Complete Form 7139." Form 7139 with the signature of Jose

   M. Maldonado was received into evidence, as was a blank deposit slip for the Maldonado's checking account. There would be no reason for the respondent to obtain that deposit slip from the Maldonados except to complete that portion of the application for the type of premium payment involving automatic bank withdrawal. Although allegedly desiring to make direct, as opposed to automatic, monthly premium payments, the Maldonados never did make a direct payment for the months of September or October, 1981. This evidence seriously detracts from their stated desire not to use an automatic withdrawal means of

   payment for their insurance coverage. They admitted that they desired the cheapest insurance with the best coverage available. The automatic withdrawal method of payment resulted in a savings to them of approximately $3.55 per month, or over $40.00 per year. Respondent's testimony that he was not authorized to collect direct monthly premiums, as opposed to automatic bank withdrawals, was not contradicted by any other evidence.

   
   

10. In summary, there is a clear lack of substantial competent evidence that respondent did submit or cause to be submitted the automatic bank withdrawal authorization contrary to the Maldonados' desires or expressed wishes or without their knowledge and consent. Absent such evidence, respondent cannot be found guilty of deceptive or dishonest practices, lack of trustworthiness or misrepresentation in the transaction of insurance as charged in the Administrative Complaint.

RECOMMENDATION

Based upon the findings of fact and conclusions of law stated above, it is RECOMMENDED that the Administrative Complaint against the respondent dated December 29, 1981, be DISMISSED.

Respectfully submitted and entered this 23rd day of July, 1982, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1982.

COPIES FURNISHED:

Daniel M. Sumner, Esquire 428A Larson Building Tallahassee, Florida 32301

Barry M. Steagall, Esquire 6500 Central Avenue

St. Petersburg, Florida 33707

Honorable Bill Gunter Insurance Commissioner State of Florida

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 82-000161

Orders for Case No: 82-000161