STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE PUBLIC HEALTH TRUST OF DADE ) COUNTY, FLORIDA, d/b/a JACKSON ) MEMORIAL HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3393

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF STATE EMPLOYEES' )

INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on October 3, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Robert J. Orovitz, Esquire

Virginia B. Chosed Hayt, Hayt & Landau

9350 South Dixie Highway, Suite 1200

Miami, Florida 33156

For Respondent: John M. Carlson, Esquire

Senior Attorney

Department of Administration

438 Carlton Building Tallahassee, Florida 32399-1550

STATEMENT OF THE ISSUES

At issue in this proceeding is whether the son of Floyd Goins, an enrollee of the State of Florida Employees Group Health Self Insurance Plan, is an eligible dependent under the provisions of such plan, and therefore eligible for insurance benefits.

PRELIMINARY STATEMENT

By letter of March 13, 1989, respondent, Department of Administration, Division of State Employees' Insurance (Department), informed Floyd Goins, an enrollee of the State of Florida Employees Group Health Self Insurance Plan, that his son was not a covered dependent under the provisions of the plan because he was not enrolled in and regularly attending on a full-time basis a school, college or university at the time of the accident which gave rise to the claim for benefits. Mr. Goins assigned his rights under the plan to petitioner,

The Public Health Trust of Dade County, Florida d/b/a Jackson Memorial Hospital, and it filed a petition requesting a formal hearing to contest the Department's decision. Thereafter, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called Floyd Goins and Betty Goins as witnesses, and its exhibits 1 - 7 were received into evidence. The Department called William Seaton as a witness, and its exhibits 1 - 9 were received into evidence.

The transcript of hearing was filed October 23, 1991, and the parties, at their request, were granted leave until November 8, 1991, to file proposed findings of fact. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. The parties' proposed findings have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

Background

1. Floyd Goins (the "Insured") has been employed by the State of Florida, Dade County State Attorney's Office, for approximately 11 years, and was, at all times material hereto, a participant in the State of Florida Employees' Group Health Self Insurance Plan (the "Plan"), with family coverage.

   
   

2. On January 17, 1988, the Insured's son, Ronald Goins (Ronald), date of birth March 7, 1965, was involved in an automobile accident in which he sustained serious injury. As a consequence, Ronald was admitted to Jackson Memorial Hospital, where he apparently underwent extensive treatment. As a result of the accident, Ronald suffered severe physical handicap, in that he cannot walk or talk, and is not capable of self sustaining employment. Currently, Ronald resides with his parents, and is wholly dependent upon them for support.

   
   

3. As a consequence of the medical expenses incurred on behalf of Ronald, a request for reimbursement was made to respondent, Department of Administration, Division of State Employees' Insurance (Department), under the Plan. Upon review, the Department, relying upon the provisions of Rule 22K- 1.103, Florida Administrative Code, concluded that Ronald, since he was over the age of 19 at the time of the accident and was not enrolled in and attending a school, college or university as a full-time student at the time of the accident, was ineligible for coverage as a dependent under the Plan. Accordingly, the Department denied the request for reimbursement.

   
   

4. Thereafter, the Insured assigned to petitioner, The Public Health Trust of Dade County, Florida d/b/a Jackson Memorial Hospital, his interest in any benefits payable for services rendered by such facility as a consequence of Ronald's admission, and further authorized Jackson Memorial to take whatever legal action might be necessary to collect such benefits. As a consequence, petitioner filed a request for formal hearing to contest the Department's conclusion that Ronald was ineligible for coverage under the Plan. 1/

   
   

   The issue of coverage.

   
   

5. Under the provisions of the Plan, an employee's "eligible children" are included within the definition of "eligible dependents" who are eligible to

   participate in the Plan, provided family coverage has been selected. Rules 22K- 1.103(5) and 22K-1.201(2), Florida Administrative Code. "Eligible children" are defined by Rule 22K-1.103(4), Florida Administrative Code, as follows:

   
   

   1. "Eligible children" shall mean the employee's . . . own children . . . Such children are eligible for coverage as follows:

      1. From their date of birth to the end of the month in which their nineteenth (19th) birthday occurs;

      2. From their nineteenth (19th) birthday to the end of the month in which their twenty-third (23rd) birthday occurs, if they are enrolled in and regularly attending on a full-time basis any school, college or university which provides training or

         educational activities, and which is certified or licensed by a state or foreign country.

      3. Such children who are mentally or physically handicapped shall be eligible to continue coverage after attainment of the above age limits and while the employee's or retiree's family coverage is in effect provided such children are incapable of self- sustaining employment by reason of such mental or physical handicap and chiefly dependent upon the employee, retiree or

         supervising spouse for support and maintenance. (Emphasis added)

         
         

         And, Rule 22K-1.103(9), Florida Administrative Code, defines "full-time basis", as follows:

         
         

         (9) "Full-time basis" shall mean the number of hours required by the school, college or university to qualify an eligible child as a full-time student. In no case shall an eligible child be considered attending on a full-time basis unless such child is currently enrolled and attending, or has, during the previous twelve (12) month period, attended

         as a full-time student, two (2) semesters, three (3) quarters or eight (8) months at

         such school, college or university. (Emphasis added)

         
         

6. Here, petitioner contends that Ronald was an eligible dependent of the Insured, and therefore covered by the Plan because he was "enrolled in and regularly attending on a full-time basis" Bauder College, an institution licensed by the State of Florida, at the time of his accident or, alternatively, because such accident rendered him "physically handicapped." The proof fails, however, to support the conclusion that Ronald was an eligible dependent of the Insured, at the time of the accident, on either basis.

   Ronald's educational pursuits.

   
   

7. Regarding Ronald's educational pursuits, the proof demonstrates that his public education was interrupted in or about 1984 when he was incarcerated in the State prison system, and that he remained so incarcerated until the later part of 1987. While incarcerated, Ronald apparently pursued some educational program, although no specifics were offered at hearing from which any conclusion could be drawn regarding its "full-time" nature, since the Department of Education awarded to him a high school diploma on December 12, 1984. Ronald apparently also pursued, while incarcerated, a course of study in electronic repair through Sumter Vocational School, during the period of November 1, 1985 to September 20, 1986. [Petitioner's Exhibit 1]. Again, no specifics were offered at hearing from which any conclusion could be drawn regarding the "full- time" nature of this program, but Ronald was awarded a certificate upon its completion. In sum, the proof fails to support the conclusion that Ronald, while incarcerated, was enrolled in and regularly attending any school on a "full-time basis", as that term is defined by Rule 22K-1.103(9), Florida Administrative Code. Moreover, there is no proof of record that Ronald pursued any educational program after September 20, 1986, a date in excess of 12 months prior to his automobile accident, excepting his enrollment at Bauder College.

   
   

8. Regarding Ronald's enrollment at Bauder College, the proof demonstrates that on November 3, 1987, Ronald executed an enrollment agreement with Bauder College whereby he elected to pursue an educational program in electronic engineering technology. According to the enrollment agreement, the program was to start January 19, 1988, and the school calendar [Respondent's Exhibit 1] confirms that January 19, 1988, was "ORIENTATION/REGISTRATION - FIRST DAY" of the 1988 Winter Quarter. Ronald was, however, hospitalized on January 17, 1988 as a consequence of his automobile accident, and never started his course of training. 2/ Therefore, Ronald, although enrolled, was not yet "regularly attending" school when injured and, therefore, was not at the time of his accident an eligible dependent of the Insured. 3/

   
   

   Ronald's handicapped status.

   
   

9. Here, petitioner also contends that, as a consequence of his handicap, Ronald was an eligible dependent under the Plan. Such contention is rejected as contrary to the provisions of Rule 22K-1.103(4), Florida Administrative Code. Handicap, under the facts of this case, is not a factor which renders a person eligible for coverage. Rather, handicap is a factor which permits the child of the insured "to continue coverage" after attainment of the age limits for coverage. Rule 22K-1.103(4)c), Florida Administrative Code. Ronald, not having been a covered dependent at the time he suffered his handicap, had no coverage to continue.

   
   

   Estoppel

   
   

10. Notwithstanding the rules which govern eligibility to participate in the Plan, petitioner contends that the Department should be estopped to apply such rules in the instant case. 4/ The predicate for petitioner's argument lies in a brochure [Petitioner's Exhibit 7] that was provided the Insured, and which defines eligible dependents as follows:

    
    

    Your own children . . . ; if they are under the age of 19, if they are full-time students under the age of 23, or if they are determined by the administrator to be mentally or

    physically handicapped, incapable of self- sustaining employment, chiefly dependent upon your support, and otherwise insurable.

    
    

11. Petitioner's claim of estoppel is unpersuasive for a number of reasons. First, the brochure does not purport to replicate the Plan, but to summarize it, and advises all recipients that it "is not a contract since it does not include all of the provisions, definitions, benefits, exclusions and limitations" of the Plan. Under such circumstances, it would not be reasonable to rely solely on the brochure for any definition of coverage. Second, and perhaps most importantly, the proof is not persuasive that the Insured relied upon the referenced provision of the brochure or that he made any change in position as a consequence of such provision.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57, Florida Statutes.

    
    

13. In this case, petitioner contends that Ronald was an "eligible child" of the Insured at the time he suffered his accident and, as such, was covered by the Plan. Under such circumstances, petitioner has the burden of establishing, by a preponderance of the evidence, that Ronald was covered by the Plan. See: Kimbro v. Metropolitan Life Ins. Co., 112 So.2d 274 (Fla. 3d DCA 1959). Here, the petitioner has failed to meet its burden of proof.

    
    

14. The provisions of Rule 22K-1.103(4) and (9), Florida Administrative Code, which define those "eligible children" who may be covered by the Plan, are not ambiguous, and Ronald was not, for the reasons set forth in the findings of fact, covered by the Plan. See: Blue Cross & Blue Shield of Fla. v. Cassady, 496 So.2d 875 (Fla. 4th DCA 1986).

    
    

15. Turning to the petitioner's argument regarding estoppel, the elements necessary to establish estoppel against the state are: (1) a representation by an agent of the state as to a material fact that is contrary to a later asserted position; (2) reasonable reliance on the representation; and (3) a change in position detrimental to the party claiming estoppel caused by the representation and reliance thereon. Harris v. Department of Administration, 577 So.2d 1363 (Fla. 1st DCA 1991). Here, petitioner has failed to establish estoppel since there was no persuasive proof that the Insured relied on the provisions of the brochure, no reasonable basis upon which he could have relied, and no showing that the Insured made any change in position based on such language.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds that Ronald Goins is

not covered by the Plan, and which dismisses the petition with prejudice.

DONE and ENTERED this 6th day of December 1991, at Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of December 1991.

ENDNOTES

1/ At hearing, petitioner offered its exhibit 6, which is a copy of a summary, as opposed to an itemization, of charges incurred on behalf of Ronald at Jackson Memorial Hospital. Such document is hearsay and was not addressed by the custodian of such record, and is of no value in the analysis of the issues in this case. The sole issue here is whether Ronald is an eligible dependent. If so, then the Department should process any claims filed on his behalf and pay such in accordance with the Plan.

2/ Further evidence that Ronald had not yet started his course of training, and was not yet "regularly attending" school, was the return by Bauder College to the lender of all funds it had advanced on behalf of Ronald because he had "never started" school. [Respondent's Exhibit 2] Had Ronald actually started school, the college would have been entitled to retain a portion of such monies. [Respondent's Exhibit 1, at page 9]

3/ One searches the record in vain for one scintilla of competent proof to demonstrate that Ronald had actually started school, such that it could be reasonably concluded that he was "regularly attending" at the time of his accident, and therefore an eligible dependent of the Insured. In this regard, the only proof offered by petitioner was hearsay which suggested that Ronald had attended an "orientation program" or "open house" at Bauder College on January 16, 1988. Such hearsay cannot, however, form the basis of a finding of fact.

Section 120.58(1)(a), Florida Statutes.

4/ Petitioner's proposed recommended order actually phrases its contention as a "due process" argument, but estoppel is the appropriate legal theory.

APPENDIX TO RECOMMENDED ORDER

Petitioner's proposed findings of fact are addressed as follows: Paragraph

1 of Petitioner's proposed findings of fact are addressed in paragraph 1; paragraph 2 is addressed in paragraphs 2, 8 and footnoot 3; and, paragraph 3 is addressed in paragraph 2 and footnote 1.

The Department's proposed findings of fact are addressed as follows:

1-6. To the extent pertinent addressed in paragraphs 1-3, otherwise unnecessary detail.

7-11. Addressed in paragraph 8 and footnotes 2 and 3.

12-14. Addressed in paragraphs 3 and 7.

15-16. Adressed in paragraphs 3 and 5.

COPIES FURNISHED:

Robert J. Orovitz, Esquire Virginia B. Chosed

Hayt, Hayt & Landau

9350 South Dixie Highway Suite 1200

Miami, Florida 33156

John M. Carlson, Esquire Department of Administration

438 Carlton Building Tallahassee, Florida 32399-1550

John A. Pieno, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Aikens, Jr., General Counsel Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE PUBLIC HEALTH TRUST OF DADE COUNTY, FLORIDA d/b/a JACKSON MEMORIAL HOSPITAL,

Petitioner,

vs. CASE NO. 91-3393

DEPARTMENT OF ADMINISTRATION, DIVISION OF STATE EMPLOYEES' INSURANCE,

Respondent.

/

FINAL ORDER

THIS MATTER is before me for the entry of a Final Order. A Recommended Order was rendered on December 6, 1991 by William J. Kendrick, a Hearing Officer duly appointed by the Division of Administrative Hearings. No exceptions to the Recommended Order have been filed by either party.

1. The Findings of Fact in the Recommended Order are hereby adopted by the Department of Administration as the Findings of Fact of this agency.

   
   

2. The Conclusions of Law in the Recommended Order are hereby adopted by the Department of Administration as the Conclusions of Law of this agency. IT IS THEREFORE ORDERED THAT:

The Department of Administration finds that Ronald Goins is not covered by the Plan and dismisses the petition with prejudice.

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. JUDICIAL REVIEW OF THIS PROCEEDING MAY BE INSTITUTED BY FILING A NOTICE OF APPEAL IN THE DISTRICT COURT OF APPEAL, PURSUANT TO SECTION 120.68, FLORIDA STATUTES. SUCH NOTICE MUST BE FILED WITH THE DISTRICT COURT OF APPEAL WITHIN THIRTY (30) CALENDAR DAYS OF THE DATE THIS ORDER IS FILED IN THE OFFICIAL RECORDS OF THE DEPARTMENT OF ADMINISTRATION, AS INDICATED IN THE CERTIFICATE OF CLERK BELOW, OR FURTHER REVIEW OF THIS ACTION WILL BE BARRED.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of January, 1992.

JOHN A. PIENO, JR., Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550 (904) 488-4116

Certificate of Clerk:

Filed in the official records of the Department of Administration this 30th day of January, 1992.

Deborah L. Fitzpatrick Clerk

COPIES FURNISHED:

William J. Kendrick Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

John M. Carlson, Senior Attorney Department of Administration

438 Carlton Building Tallahassee, Florida 32399-1550

Robert J. Orovitz, Esquire Virginia B. Chosed, Esquire HAYT, HAYT & LANDAU

9350 S. Dixie Highway, Ste. 1200

Miami, Florida 33156

================================================================= DISTRICT COURT OPINION

=================================================================

THE PUBLIC HEALTH TRUST OF IN THE DISTRICT COURT OF APPEAL DADE COUNTY, FLORIDA d/b/a OF FLORIDA THIRD DISTRICT JACKSON MEMORIAL HOSPITAL, JULY TERM, 1992

Appellant,

vs. CASE NO. 92-422

STATE OF FLORIDA, DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF STATE EMPLOYEES' INSURANCE,

Appellee.

/

Opinion filed October 13, 1992.

An Appeal from the Department of Administration.

Hayt, Hayt & Landau, Robert J. Orovitz, and Virginia B. Chosea, for appellant.

John M. Carlson, Senior Attorney, Department of Management Services, for appellee.

Before SCHWARTZ, C.J., and FERGUSON, and GERSTEN, JJ. PER CURIAM.

Appellant, the Public Health Trust of Dade County, (Hospital), appeals a final order of the Department of Administration. We reverse.

Ronald Goins (Goins) was injured in an automobile accident leaving him a quadriplegic. At the time of the accident, Goins's father had family coverage under the State of Florida Self-Insurance Plan. This plan was administered by Blue Cross Blue Shield of Florida. Because Goins was "between the ages of nineteen and twenty-three years", the State Self-Insurance Plan would cover him if he was "enrolled in and regularly attending on a full-time basis any school, college or university ..." Rule 22.K-1.103, Florida Administrative Code.

Prior to the accident, Goins enrolled and paid his tuition in a state- certified school as a full-time student. This accident occurred a few days before Goins was to begin classes.

After the accident, Goins was taken to the Hospital and received extensive medical treatment. Blue Cross Blue Shield of Florida refused to pay Goins's hospital bill, claiming that Goins was not "regularly attending" school under the Florida Administrative Code, and thus not covered by his father's insurance plan.

A hearing officer, determining the claim, found that Goins was not regularly attending school on a full-time basis and was not covered by his father's policy. The Department of Administration adopted the findings of the hearing officer.

On appeal, the Hospital asserts that because Goins was enrolled in a state- certified college as a full-time student, had paid his tuition and had attended an orientation class, he was covered under the insurance plan. Appellee contends that the hearing officer correctly found that Goins "although enrolled, was not yet `regularly attending' school when injured and, therefore, was not at the time of his accident an eligible dependent of the Insured."

Where an ambiguity exists in an insurance plan, such that two or more reasonable interpretations can be fairly made, the construction permitting recovery will be given full effect. Shelby Mutual Insurance Company of Shelby, Ohio v. Manchester, 376 So.2d 266 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla. 1980). Furthermore, this court has recently held that a person registered at an educational institution who is on a medical leave of absence is "enrolled as a full-time student." Klotz v. Anthem Life Insurance Comany, 601 So.2d 593 (Fla. 3d DCA 1992).

In this case, the term "regularly attending" is not defined in the Florida Administrative Code. As a result, an ambiguity exists concerning whether Goins was "regularly attending" school at the time of the accident. This ambiguity, in conjunction with the holding in Klotz, permits recovery. Accordingly we reverse.

Reversed.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT

DCA #92-422

THE PUBLIC HEALTH TRUST, etc.

vs.

STATE OF FLORIDA, etc.

This cause having been brought to this Court by appeal, and after due consideration the Court having issued its opinion;

YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this Court attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the State of Florida.

Case No. DOA #A-91-14 & DOAH #91-3393 WITNESS, The Honorable ALAN R. SCHWARTZ

Chief Judge of said District Court and seal of said Court at Miami, this 29th day of October 1992.

Clerk District Court Appeal of Florida, Third District

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF

=================================================================

AMENDED AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES

THE PUBLIC HEALTH TRUST OF DADE COUNTY, FLORIDA d/b/a JACKSON MEMORIAL HOSPITAL,

Petitioner,

vs. DOA CASE NO. A-91-14

DOAH CASE NO. 91-3393

Third District Case No. 92-422

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF STATE EMPLOYEES' INSURANCE

Respondent.

/

AMENDED FINAL ORDER

THIS MATTER is before me for entry off an amended FINAL ORDER to supplant that Final Order rendered on January 30, 1992 by the Department of Administration. The Final Order was timely appealed to the District Court of Appeals, Third District on February 25, 1992. Following its review of the subject Final Order, the District Court issued its opinion on October 13, 1992 whereby it reversed the Department's denial of coverage for the insured, Floyd Goins. Significantly, the court held:

1. "Appellee (DMS) contends that the hearing officer correctly found that Goins although enrolled, was not yet 'regularly attending' school when injured and, therefore, was not at the time of his accident an eligible dependent of the Insured."

   
   

2. "Where an ambiguity exists in an insurance plan, such that two or more reasonable interpretations can be fairly made, the construction permitting recovery will be given full effect. Shelby Mutual Insurance Company of Shelby, Ohio v. Manchester, 376 So.2d 266 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla. 1980).

   
   

3. "Furthermore, this court has recently held that a person registered at an educational institution who is on a medical leave of absence is 'enrolled as a full-time student.' Klotz v. Anthem Life Insurance Company, 601 So.2d 593 (Fla. 3d DCA 1992)."

   
   

4. "In this case, the term 'regularly attending' is not defined in the Florida Administrative Code. As a result, an ambiguity exists concerning whether Goins was 'regularly attending' school at the time of the accident. This ambiguity, in conjunction with the holding in Klotz, permits recovery. Accordingly, we reverse."

5. On October 29, 1992, the District Court, Third District issued its mandate to this Department as follows:

   
   

   "YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this Court attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the State of Florida."

   
   

6. By letter dated November 2, 1992, petitioner through his attorney requested payment of $193,977.54 plus cost of $521.93 and interest from May 16, 1988 at the prejudgment rate of twelve percent. A supporting memoranda was not provided by petitioner. In fact, this agency's request for supporting authority on the issues of cost and prejudgment interest were declined by petitioner. Petitioner also refuses to engage in any further administrative proceeding authorized under Chapter 120, Florida Statutes. Likewise, a motion to tax cost was not served on Respondent or the District Court or required by the rules of Appellate Procedure.

   
   

7. The insured son's care at Jackson Memorial Hospital arising from the January 17, 1988 accident totaled $194,283.54. Pursuant to its agreement with Blue Cross and Blue Shield of Florida, Inc., the State of Florida was obligated to pay and has paid petitioner the pre-negotiated total sum of $144,692.16 on January 13, 1993. No further sums are due plaintiff.

   
   

8. The remaining question is whether the Department is required to pay prejudgment interest in these circumstances. In Kissimmee Utility Authority v. Better Plastics, Inc., 526 so. 2d 46 (Fla. 1988) the Florida Supreme Court reaffirmed the general rule concerning the payment of prejudgment interest outlined in Aronaut Insurance Co. v. May Plumbing Co., 474 so. 2d 212 (Fla. 1985) that "once damages are liquidated, prejudgment interest is considered an element of those damages as a matter of law, and the plaintiff is to be made whole from the date of the loss." 526 so. 2d 47. However, this general rule is not absolute. In Flack vs. Graham, 461 so. 2d 82 (Fla. 1984) the Supreme Court refused to permit recovery of any prejudgment interest stating:

"Interest is not recovered according to a rigid theory of compensation for money withheld, but is given in response to considerations of fairness. It is denied when its exaction would be inequitable."

In Broward Count v. Finlavson, 555 so. 2d 1211 (Fla. 1990), the Supreme Court affirmed this principle by stating: "we did not recede from this principle in Argonaut Insurance or Kissimmee Utility Authority.

The rule set forth in Flack appears to apply in this case. In Flack vs.

Graham, supra, Flack sued for back pay as a result of her wrongful removal from the bench. The Court approved the claim but denied prejudgment interest on her salary, stating:

As a general rule, a government is not liable for interest in the absence of an express statutory provision or a stipulation by the government that interest will be paid. United States v. North Carolina, 136 U.S. 211, 10 S.Ct.

920, 34 L.Ed. 336 (1890); United States ex rel. anarica de

Ia Rua v. Bavard, 127 U.S. 251, 8 S.Ct. 1156, 32 L.Ed. 159

(1888); United States v. Sherman, 8 Otto 565, 98 U.S. 565,

25 L.Ed. 235 (1878); Treadway v. Terrell, 117 Fla. 838, 158

So. 512 (1935).

At 83. Since Flack had received the full amount of her salary, the Court determined "It would be grossly inequitable to make the citizens of Florida also pay interest." At 84.

It seems unlikely that the Legislature intended to waive sovereign immunity and authorize the payment of interest to state employees in this instance.

Generally, while the insurance coverage inures to the benefit of the employees, payments are often made directly to the providers. All participating employees either pay premiums in part or have them paid entirely by their employers.

Prejudgment interest would ultimately be paid in the large part (and in many cases entirely) by the Florida citizens.

Accordingly, it would be grossly inequitable to require the citizens of the State of Florida to pay interest in the instant case.

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. JUDICIAL REVIEW OF THIS PROCEEDING MAY BE INSTITUTED BY FILING A NOTICE OF APPEAL IN THE DISTRICT COURT OF APPEAL, PURSUANT TO SECTION 120.68, FLORIDA STATUTES AND RULE 9.400 FLORIDA RULES OF APPELLATE PROCEDURE. SUCH NOTICE MUST BE FILED WITH THE DISTRICT COURT OF APPEAL WITHIN THIRTY (30) CALENDAR DAYS OF THE DATE THIS ORDER IS FILED IN THE OFFICIAL RECORDS OF THE DEPARTMENT OF MANAGEMENT SERVICES, AS INDICATED IN THE CERTIFICATE OF CLERK BELOW, OR FURTHER REVIEW OF THIS ACTION WILL BE BARRED.

DONE AND ORDERED in Tallahassee, County, Florida, this 27th day of January 1993.

William H. Lindner, Secretary Department of Management Services The Koger Center

2737 Centerview Drive Knight Building

Tallahassee, Florida 32399-0950

(904) 488-6897

Certificate of Clerk:

Filed in the official records of the Department of Management Services this 29th day of January, 1993.

Clerk

Copies furnished to:

William J. Kendrick Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Augustus D. Aikens, Jr., Chief

Bureau of Benefit Programs and Legal Services Division of State Employees' Insurance

2002 Old St. Augustine Rd., B-12 Tallahassee, Florida 32301-4876

Robert J. Orovitz, Esquire Virginia B. Chosed, Esquire HAYT, HAYT & LANDAU

9350 S. Dixie Highway, Suite. 1200

Miami, Florida 33156

=================================================================

NOTICE OF APPEAL

=================================================================

IN THE DISTRICT COURT OF APPEAL IN AND FOR THE THIRD DISTRICT OF FLORIDA

THE PUBLIC HEALTH TRUST OF DADE COUNTY, FLORIDA d/b/a JACKSON MEMORIAL HOSPITAL,

Appellant,

vs. NOTICE OF APPEAL 501379

DOAH CASE NO.: 91-3393

STATE OF FLORIDA, DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF STATE EMPLOYEES' INSURANCE,

Appellee.

/

NOTICE IS GIVEN that THE PUBLIC HEALTH TRUST OF DADE COUNTY, FLORIDA d/b/a

JACKSON MEMORIAL HOSPITAL, Appellant, appeals to the District Court of the Third District Court of Appeals, the Amended Final Order rendered on January 27, 1993. Attached hereto is a copy of the Amended Final Order.

HAYT, HAYT & LANDAU

Attorneys for Appellant 9350 South Dixie Highway Suite 200

Miami, Florida 33156

(305) 661-6660

BY:

Robert J. Orovitz, P.A.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Notice of Appeal was furnished by mail to: William H. Lindner, Esquire Department of Management Services, The Koger Center 2737 Centrview Drive, Tallahassee, Fl 32399-0950, William J. Kendrick, Hearing Officer, Division of Administrative Hearings, 1230 Apalachee Parkway Tallahassee, FL 32399-1550, Augustus D. Aikens, Jr., Chief, Bureau of Benefits Programs and Legal Services, Division of State Employee's Insurance, 2002 Old St. Augustine Rd., B-12, Tallahassee, Fl 32301- 4876 on this 10th day of February, 1993.

BY:

Robert J. Orovitz, P.A.

Docket for Case No: 91-003393

Orders for Case No: 91-003393