STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2274

)

SHERYL ANN SATTERFIELD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on August 4, 1992.

The following parties entered appearances:

APPEARANCES

For Petitioner: Willis F. Melvin, Jr., Esquire

Daniel T. Gross, Esquire Department of Insurance Division of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Respondent violated various provisions of the Insurance Code, specifically Sections 626.561(1), 626.611, 626.621 and 626.9521, Florida Statutes, which warrants that Respondent's licenses as an insurance agent should be disciplined.

PRELIMINARY STATEMENT

On February 19, 1992, Petitioner, Department of Insurance and Treasurer, filed a four-count Administrative Complaint against the licenses and eligibility for appointment of Respondent, Sheryl Ann Satterfield. The Administrative Complaint alleged that Respondent has violated various provisions of the Florida Insurance Code.

On April 2, 1992, Respondent filed her Answer to the Administrative Complaint, and therein requested a formal administrative proceeding pursuant to Section 120.57(1), Florida Statutes. Petitioner filed a Motion for Continuance

and a Motion for Leave to File First Amended Administrative Complaint which was granted, and the hearing was continued until August 4, 1992, in Wauchula, Florida.

At Final Hearing, diligent search and inquiry was made as to the whereabouts of Respondent, but she failed to appear. After waiting a reasonable period of time, the hearing proceeded. The Petitioner presented the testimony of Miguel A. Coronado, Jodi Spencer, Matthew Baker, Edwin Soto, William Goodyard, Maria Kordestani, Joseph Mooney, Kelly Woolley, James Robertson, Andrew Grizzard and Caridad Sanchez, and offered in evidence exhibits numbered 1 through 13. No evidence was entered on behalf of Respondent. No transcript was filed. Petitioner's proposed findings of fact were submitted on August 14, 1992. Respondent did not file proposed findings. My ruling on Petitioner's proposal are set forth in the Appendix.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Respondent was, at all times pertinent, licensed as a general lines agent and health agent in Florida

2 Respondent was the registered agent, sole director and officer of Sunshine State Insurance of Manatee, Inc. As a result of her corporate capacity, Sheryl Ann Satterfield is responsible for actions of employees working under her direct supervision and control.

FINDINGS REGARDING COUNT I

1. On or about April 5, 1991, Respondent's employee solicited an application for automobile insurance from Miguel A. Coronado of Bradenton, Florida. The automobile insurance was to be provided by the Nu-Main of Florida Agency.

   
   

2. At this same time, the premium for the automobile insurance was quoted as $414.00 for a six month coverage. After being informed of the premium amount, Mr. Coronado paid Respondent's employee $146.00 in cash as a down payment on the premium. Receipt #6557 was issued which acknowledged receipt of said premium.

   
   

3. On or about April 26, 1991, Mr. Coronado received a cancellation from Instant Auto Credit stating that his automobile was an unacceptable vehicle.

   
   

4. After receiving this notice, Mr. Coronado went to the Sunshine State Insurance office to discuss the cancellation with Respondent. Respondent refused to refund the $146.00 premium to Mr. Coronado.

   
   

5. Respondent never forwarded the $146.00 premium funds received from Mr. Coronado to Nu-Main of Florida. Further, Respondent failed, and refused to refund the premium to Mr. Coronado upon demand.

   
   

6. Respondent misappropriated funds held in trust for her own use and benefit.

   FINDINGS REGARDING COUNT II

   
   

7. On or about November 26, 1990, Jodi Spencer of Sarasota, Florida went to Respondent's agency for the purpose of obtaining automobile insurance. Ms. Spencer made a premium down payment of $197.00 on a quote of $697.00 annual premium. Respondent's employee issued receipt #7874 which acknowledged receipt of the $197.00 premium down payment.

   
   

8. The auto insurance was to be provided by Nu-Main of Florida, Inc., and American Skyhawk Company.

   
   

9. On February 11, 1991, American Skyhawk Insurance Company sent Ms. Spencer a cancellation notice. Respondent was to return $24.50 of unearned commission to Ms. Spencer which she failed to do.

   
   

   FINDINGS REGARDING COUNT III

   
   

10. On or about December 31, 1990, Matthew Baker of Bradenton, Florida, went to Sunshine State Insurance Agency to obtain automobile insurance.

    
    

11. At this time, Matthew Baker paid a down payment of $197.00 on an annual premium of $1,313.00. The insurance was to be provided by First Miami Insurance Company. Respondent's agency issued receipt #6851 upon receipt of the aforementioned premium down payment.

    
    

12. On January 31, 1991, First Miami Insurance Company sent Mr. Baker a cancellation notice. At the time of cancellation Respondent was to return an unearned commission of $154.60.

    
    

13. Respondent has failed to return $154.60 in unearned commission to Mr. Baker.

    
    

    FINDINGS REGARDING COUNT IV

    
    

14. On or about January 11, 1991, Edwin Soto of Bradenton, Florida, was cancelled by First Miami Insurance Company with whom he had an existing automobile insurance policy.

    
    

15. Edwin Soto had purchased this First Miami Insurance Company policy from Respondent. (Testimony of Edwin Soto).

    
    

16. As a result of this cancellation Mr. Soto is owed $70.61 from Respondent which she has failed to return to him.

    
    

    FINDINGS REGARDING COUNT V

    
    

17. In January 1991, William M. Woodyard of Bradenton, Florida, met with Respondent to renew his general liability and worker's compensation insurance. At this same time Mr. Woodyard gave Respondent his premium down payment.

    
    

18. During the latter part of 1991, Mr. Woodyard went to Sunshine State Insurance of Manatee, Inc. to obtain a copy of his worker's compensation policy. Upon Mr. Woodyard's arrival, he met with Joe Money, President of Sunshine State Insurance Group, Inc. No record of insurance or coverage for Mr. Woodyard or his company existed. Previously, Capital Premium Finance Company had issued two return premium checks to Mr. Woodyard.

19. Respondent deposited Mr. Woodyard's return premium checks into the Sunshine State Insurance Agency's checking account in the total amount of

    $440.80.

    
    

20. Mr. Woodyard was entitled to receive a premium refund check and unearned commission check from Respondent.

    
    

21. Mr. Woodyard did not receive any premium refund or unearned commission funds from Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57 (1), Florida Statutes.

    
    

23. The standard of proof to be applied in this case is that of clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

24. The Administrative Complaint alleged that Respondent violated Sections 626.561(1), and Section 626.611(8), (9), (10), (13), and Section 626.621(2), (6), and Section 626.9521 and Section 626.9541(1)(a)1., Florida Statutes.

    
    

    Those provisions provide as follows:

    626.561 Reporting and accounting for funds.

    (1) All premiums, return premiums, or other funds belonging to insurers or others received by an agent, solicitor, or adjuster in transactions under his license shall be trust funds so received by the licensee in a fiduciary capacity. An agent shall keep the funds belonging to each insurer for which he is not appointed, other than a surplus lines insurer, in a separate account so as to allow the department to properly audit such funds.

    The licensee in the applicable regular course of business shall account for and pay the same to the insurer, insured, or other person entitled thereto.

    * * *

    626.611 Grounds for compulsory refusal, suspension, or revocation of agent's solicitors, adjuster's, service representative's, managing general agent's or claims investigator's license or appointment.

    * * *

    1. Demonstrated lack of reasonably adequate knowledge and technical competence to engage in the transactions authorized by the license or appointment.

    2. Fraudulent or dishonest practices in the conduct of business under the license or appointment.

    3. Misappropriation, conversion, or unlawful withholding of moneys belonging to insurers or insureds or beneficiaries or to others and received in conduct of business

    under the license or appointment.

    (13) Willful failure to comply with, or willful violation of, any proper order or rule of the department or willful violation of any provision of this code.

    * * *

    626.621 Grounds for discretionary refusal, ions, or revocation of agent's, solicitors, adjuster's, service representatives, managing general agent's, or claims investigator's license or appointment.

    (2) Violation of any provision of this code or of any other law applicable to the business of insurance in the course of dealing under the license or appointment.

    (6) In the conduct of business under the license or appointment, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of this chapter, or having otherwise shown himself to be a source of injury or loss to the public or detrimental to the public interest.

    * * *

    626.9521 Unfair methods of competition and unfair or deceptive acts or practices prohibited. No person shall engage in this state in any trade practice which is defined in this part as, or determined pursuant to Section 626.9561 to be, an unfair method of competition or an unfair or deceptive act or practice involving the business of insurance. Any person who violates any provision of this part shall be subject to the penalties provided in Section 627.381.

    * * *

    626.9541 Unfair methods of competition and unfair or deceptive acts or practices defined.

    1. Unfair methods of competition and unfair or deceptive acts. The following are defined as unfair methods of competition and unfair or deceptive acts or practices:

       1. Misrepresentations and false advertising of insurance policies. Knowingly making, issuing, circulating, or causing to be made, issued, or circulated, any estimate, illustration, circular, statement, sales presentation, omission, or comparison with:

          1. Misrepresents the benefits, advantages, conditions, or terms of any insurance policy.

    
    

25. Petitioner has proven by clear and convincing evidence that the Respondent has violated the above-cited provisions of the Florida Insurance Code. The evidence shows that Respondent engaged in an ongoing pattern of misappropriating returned premiums and unearned commissions. Respondent knew or should have known that unearned commissions were owed to insureds while she

owned and operated the agency. However, Respondent made no effort to rectify the problems which she caused and knew about.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that Respondent's licenses as an insurance agent in this state be REVOKED.

DONE and RECOMMENDED this 20th day of October, 1992, at Tallahassee, Florida.

DANIEL M. KILBRIDE

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 20th day of October, 1992.

APPENDIX

The following constitute specific rulings, pursuant to Section 120.59 (2), Florida Statutes, upon the parties respective proposed findings of fact (PFOF)

Petitioner's PFOF:

1. - 27. Accepted in substance.

Respondent's PFOF:

Respondent did not file proposed findings of fact.

COPIES FURNISHED:

Willis F. Melvin, Jr., Esquire Daniel T. Gross, Esquire Department of Insurance

and Treasurer

412 Larson Building Tallahassee, Florida 32399-0300

Ms. Sheryl Ann Satterfield

P.O. Box 333

Polk City, Florida 33868

Tom Gallagher, Commissioner Department of Insurance

and Treasurer

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Bill O'Neil, Esquire General Counsel Department of Insurance

and Treasurer The Capitol, PL-11

Tallahassee, Florida 32399-0300

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.

Docket for Case No: 92-002274

Orders for Case No: 92-002274