Judges: SHARYN L. SMITH
Agency: Department of Financial Services
Latest Update: Oct. 30, 1990
Summary: Respondent life insurance agent is guilty of signing certifications and applications for insureds she's not met. One-year license suspension.
82-1466STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF INSURANCE AND ) TREASURER, )
)
Petitioner, )
)
vs. ) CASE NO. 82-1466
)
LYNDA ROSE RUSHING, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, held a formal hearing in this case on October 20, 1983, in St. Petersburg, Florida. The following appearances were entered:
For Petitioner: Franz Eric Dorn, Esquire
Department of Insurance 413-B Larson Building
Tallahassee, Florida 32301
For Respondent: Larry D. Goldstein, Esquire
Riden, Watson & Goldstein, P.A. 5656 Central Avenue
St. Petersburg, Florida 33707
The issue for determination at the final hearing was whether the Respondent's license as an ordinary life, including disability, insurance agent should be revoked, suspended or otherwise disciplined for the reasons set forth in the Second Amended Administrative Complaint dated August 12, 1983.
At the final hearing, Petitioner's Exhibits 1-12 were offered and 4-12 were admitted into evidence. Ruling was reserved on Petitioner's Exhibits 1(a)-(d), 2(a)-(e) and 3 which are hereby admitted. Respondent's Exhibits 1-3 were offered and admitted into evidence.
Edwin S. Shoman, a self-employed insurance agent and former employee at Gulf Health and Life, St. Petersburg, Florida, testified for the Petitioner. Earl Jacobs, office manager of Florida Co-op Insurance Service, formerly Gulf Health Life, and Jules Hanken, formerly President of Gulf Health Life, testified for the Respondent. Carl Petty, Jr., Vice President of Massachusetts Indemnity and Life Insurance Company (MILICO) testified by deposition for the Respondent.
Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.
When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either
rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.
FINDINGS OF FACT
The Respondent Lynda Rose Rushing is a licensed ordinary life, including disability, agent in Florida. At all times material to the Administrative Complaint, the Respondent was an officer and employee of Gulf Health/Life, Inc., under the supervision, direction and control of Jules Hanken, the owner and President of Gulf Health. The Respondent's job duties at the company related primarily to policy holder service although she was also involved in the overall business operation of the office.
In July of 1980, Edwin Shoman was hired by Jules Hanken to work at Gulf Health to solicit and sell insurance.
For the first three months of Shoman's employment, he received extensive training by Jules Hanken and other agents and employees at Gulf Health. This training included sales techniques and processing of insurance applications.
Shoman took the examination for licensure as an insurance agent and became licensed as a disability agent in the late summer of 1980. In September, 1980, Shoman became licensed to represent Orange State Life Insurance Company as a disability agent.
On September 26, 1980, Gulf Health submitted a form request to MILICO requesting that Shoman be appointed as a sub-agent to represent MILICO.
On October 1, 1980, Shoman began soliciting insurance applications on behalf of MILICO. MILICO submitted to the Florida Department of Insurance its request that Shoman be appointed as a licensed representative of MILICO on October 3, 1980. Shoman was not officially appointed and licensed by the Department of Insurance to represent MILICO until October 24, 1980.
Between October 6 and 23, 1980 and before his official appointment and licensure by the Department, Shoman completed five MILICO applications.
In completing these applications, Shoman was acting under the instructions of Mr. Hanken and the Respondent.
The Respondent was not present and had never met any of the insureds when the five applications were taken.
The Respondent signed all of the applications as the licensed agent using his MILICO agent code.
A certification form, # SA-742(ML)FL, required by the Department was attached to each application and completed. The Respondent signed each of the certification forms as the agent of record. However, on only one of the forms did Shoman also sign as agent of record.
On each of the application forms two certifications exist requiring that the agent certify that the information provided by the applicant was accurately recorded and that the answers given by the applicant are true and correct.
On the certificate form attached to each application are several certifications that request the agent to attest that he had personally taken the application and had personally explained the provisions of the policy.
Shoman's authority to solicit and sell insurance policies on behalf of MILICO was governed by a written agency agreement entered into between MILICO and Gulf Health on April 11, 1979.
The agreement between Gulf Health and MILICO contains the following provisions:
Agency and its sub-agents shall be properly licensed by the insurance departments of the appropriate states in the territory prior to soliciting applications for company policies in such states and shall not permit any such sub-agents to solicit such appli- cations until they are so licensed.
MILICO has interpreted this provision to prohibit agents from completing MILICO insurance applications and submitting them to MILICO prior to the time the agent's appointment and licensure with MILICO is confirmed by the state.
No MILICO official authorized anyone at Gulf Health to solicit and submit MILICO applications to the company prior to the time an agent was licensed with MILICO.
The Respondent instructed Shoman not to sign any MILICO applications until he was licensed with MILICO. Shoman turned all of his business, including the insurance applications he solicited, to the Respondent who checked the applications.
While employed at Gulf Health, Shoman saw the Respondent on one occasion use a rectangular internally illuminated box to trace signatures onto insurance documents.
Earl Jacobs, an employee of Gulf Health, produced a "safe light" at the final hearing which could have been the device observed by Shoman and used by the Respondent to trace the signatures onto insurance documents.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Respondent is charged in the Second Amended Administrative Complaint with violating numerous sections of the Florida Insurance Code, including 626.611(5), 626.611(7) 626.611(8), 626.611(9), 626.611(13), 626.621(2), 626.621(3), 626.621(6) 626.9521, 626.9541(11)(a), 626.9541(11)(b), 626.9541(5)(a), 626.9541 (5)(b) and 626.9541(11)(a), Florida Statutes (1981).
As noted by counsel for the Department, the Respondent has been charged with violating the Insurance Code in two basic ways: first, by
misrepresenting to MILICO that she was the soliciting agent by signing the five MILICO applications for Shoman and accompanying certification forms even though she had never met the insureds, and by signing applications that she had not solicited, the Respondent vouched for information that may or may not have been true and second, by assisting in the wrongful acts of Shoman by signing his applications which enabled him to solicit for MILICO prior to his being licensed with the company.
The Department has established by clear and convincing evidence that the Respondent's actions in signing the applications for Shoman knowing that he was not licensed, constitute violations of Sections 626.9541(5)(a) and (b), 626.9541(11) (a), 626.621(6) 626.611(7), 626.839 and 626.611(4), Florida Statutes (1981).
Regarding the Respondents use of the light box, the court's decision in Daniels v. Gunter, 438 So.2d 184(2nd DCA 1983), holding that the uncorroborated testimony of one witness insufficient as a matter of law to sustain a finding that a Respondent improperly used a "light box," precludes a finding that the Department has met its burden of proof regarding this charge.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That a final order be entered by the Department of Insurance finding the Respondent Lynda Rose Rushing guilty of violating Counts II - VI of the Second Amended Administrative Complaint, not guilty of violating Count I, and suspending her license for one year.
DONE and ENTERED this 22nd day of May, 1984, in Tallahassee, Florida.
SHARYN L. SMITH
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 22nd day of May, 1984.
COPIES FURNISHED:
Franz Eric Dorn, Esquire Department of Insurance 413-B Larson Building
Tallahassee, Florida 32301
Larry D. Goldstein, Esquire Riden, Watson and Goldstein, P.A. 5656 Central Avenue
St. Petersburg, Florida 33707
Susan E. Koch, Esquire Department of Insurance 413-B Larson Building
Tallahassee, Florida 32301
Honorable Bill Gunter Insurance Commissioner and
Treasurer
The Capitol - Plaza Level Tallahassee, Florida 32301
Docket for Case No: 82-001466
Orders for Case No: 82-001466
| Issue Date |
Document |
Summary |
|
Jun. 21, 1984 |
Agency Final Order
|
|
|
May 22, 1984 |
Recommended Order
|
Respondent life insurance agent is guilty of signing certifications and applications for insureds she's not met. One-year license suspension.
|
