STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF INSURANCE )
AND TREASURER )
)
Petitioner, )
)
vs. ) CASE NO. 82-2849
)
JAMES EDWARD HICKERSON, )
)
Respondent. )
)
RECOMMENDED ORDER
This case was heard pursuant to notice on March 17 and 18, 1983, in Lakeland, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented upon an Amended Administrative Complaint containing 16 counts. Each count involves a separate transaction in which the Respondent, James Edward Hickerson, was involved as a licensed agent and in which specific acts of the Respondent are alleged to be in violation of various specified provisions of Chapters 624, 626 and 627, Florida Statutes. Specific findings of fact will be reported regarding each separate count; however, because the majority of the counts allege similar violations of the statutes, the conclusions of law will discuss each alleged statutory violation, stating in which counts affirmative or negative conclusions are made.
APPEARANCES
For Petitioner: Curtis A. Billingsley, Esquire
Department of Insurance 413-B Larson Building Tallahassee, Florida 32301
For Respondent: Douglas H. Smith, Esquire
Post Office Box 1145
Lake Alfred, Florida 33850
Marvin B. Woods, Esquire 2600 Industrial Park Drive Lakeland, Florida 33801
ISSUES
The issue is whether the Respondent, James Edward Hickerson, violated the provisions of Chapters 624, 626 and 627, Florida Statutes, by commission or omission of acts as alleged specifically in the Administrative Complaint.
The entry of this order was ; delayed by late filing of the transcript and post hearing briefs, the filing time of which was extended by order dated May 19, 1983. Petitioner submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of
fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
FINDINGS OF FACT
General Findings
At all times relative to the Administrative Complaint, the Respondent, James Edward Hickerson, was President of the Hickerson Insurance Agency, Inc., located in Winter Haven, Florida, and held licenses as a surplus lines-property casualty and surety surplus lines, ordinary-combination life (including disability insurance) , general lines-property, casualty, surety and miscellaneous, and disability insurance agent issued by the Insurance Commissioner.
The Respondent sold Hickerson Insurance Agency, Inc. , to James Hurst, Jr., as of March 1, 1982. Pursuant to their contract for sale, the Respondent remained liable for all business written prior to March 1, 1982, and the conduct of the business affairs of said agency prior to that date.
Count I
On January 29, 1982, Patricia Ann Haller applied for a bond as a notary at Hickerson Insurance Agency, Inc.(hereinafter, the Hickerson Agency). Haller paid the Hickerson Agency a total of $61 for a notary seal and as premium on said bond. When Haller did not receive the bond and seal, she called the Hickerson Agency and was advised by a secretary that her application had been lost. She received a letter presumably forwarding a new application but which did not contain an enclosed application. When Haller again called the Hickerson Agency, she was advised to come to the agency and sign a new application. Haller went to the agency and signed a second application in February 1982. When she did not receive the bond and seal, after March 1, 1982, she recontacted the agency and at that time spoke with James Hurst, Jr., the new owner.
A search of the office records by James Hurst, Jr. and the office staff revealed no record of the Haller transaction with the Hickerson Agency. The company to which application was made for the bond had no record of receiving the application for Haller's bond.
Haller advised James Hurst, Jr., that she no longer wanted the bond. Haller never received the bond or a refund of the money she paid to the Hickerson Agency.
Under the contract for purchase of the Hickerson Agency, the Respondent received all premiums and was responsible for all money collected on transactions prior to March 1, 1982. The Respondent was responsible for providing Haller's bond and her premiums.
Counts II, III, IV, V and VI
The Hickerson Agency billed Southern Mortgage Company of Florida, Inc., in the amount of $86 on December 14, 1981, for the renewal of fire insurance in behalf of Pearly Mae Williams. (See Petitioner's Exhibit 12.) The Hickerson Agency billed United Companies Financial Corporation in the amount of $193 on or before February 17, 1982, for the renewal of homeowner's insurance in behalf of Annie N. Bonney. (See Petitioner's Exhibit 15.) The Hickerson Agency billed
United Companies Life Insurance Company in the amount of $9 on February 8, 1982, for homeowner's insurance in behalf of Charles or Della M. Byrd. (See Petitioner'S Exhibit 18.)
The Hickerson Agency received a check in the amount of $85 from United Companies, Inc., on December 23, 1981, for the payment of fire insurance for Pearly M. Williams. (See Petitioner's Exhibit 13.) United Companies Financial Corporation paid the Hickerson Agency $193 on January 25, 1982, for fire insurance in behalf of Annie M. Bonney. (See Petitioner's Exhibit 16.) United Companies Financial Corporation paid the Hickerson Agency $9 on February 17, 1982, for fire insurance in behalf of Charles Edward Byrd. (See Petitioner's Exhibit 19.)
Under the contract agreement between the Hickerson Agency and Independent Fire Insurance Company, the premiums on insurance placed with Independent Fire Insurance Company were due the 15th of the month following the effective date of the insurance coverage. (See Petitioner's Exhibit 11.)
The insurance for Pearly Mae Williams was renewed on January 31, 1982. (See Petitioner's Exhibit 9.) The premium was due and owing and to be paid by the Hickerson Agency on February 15, 1982. Independent Fire Insurance Company renewed the fire insurance for Annie N. Bonney on February 17, 1982. (See Petitioner's Exhibit 14.) The premium was due and owing and to be paid by the Hickerson Agency on March 15, 1982. Independent Fire Insurance Company renewed the insurance of Charles or Della M. Byrd on February 22, 1982. (See Petitioner's Exhibit 17.) The premium was due and owing and to be paid by the Hickerson Agency on March 15, 1982. (See Petitioner's Exhibit 17.)
Independent Fire Insurance Company renewed the insurance of Curtis Smith on January 26, 1982, and, pursuant to the Hickerson Agency's agreement with said company, the premium for this insurance was to be paid by the Hickerson Agency on February 15, 1952. (See Petitioner's Exhibit 20.) Independent Fire Insurance Company renewed the insurance of Edna T. Tipper on December 14, 1951, and, pursuant to the Hickerson Agency's agreement with said company, the premium for this insurance was due from the Hickerson Agency on January 15, 1952. (See Petitioner's Exhibit 21.) Regarding the insurance of Curtis Smith, there is no evidence that the Hickerson Agency received payment from the insured or the insured's mortgagee. Concerning Edna T. Tipper, there is no evidence that the Hickerson Agency received payment for said insurance from the insured or the insured's mortgagee.
A statement of account similar to Petitioner's Exhibit numbered 22, the statement for February 1952, was provided to the Hickerson Agency each month. As of February 25, 1952, premiums were owed for the insurance in effect on Pearly Mae Williams, Edna T. Tipper, Curtis Smith, Charles Byrd and Annie N. Bonney by the Hickerson Agency. (See Petitioner's Exhibit 22.)
On July 14, 1952, Independent Fire Insurance Company advised the Respondent at his home address by certified mail that his account with the company was in arrears in the amount of $531.30 and made demand for payment no later than August 3, 1952. (See Petitioner's Exhibit 22.) On July 19, 1952, the Respondent tendered payment to Independent Fire Insurance Company with his check numbered 2343 in the amount of $531.30. (See Petitioner's Exhibit 24.) A letter from Independent Fire Insurance Company reflects that said company has been paid the premiums due on Williams, Tipper, Smith, Byrd and Bonney. (See Petitioner's Exhibit 25.)
The Respondent received payments from Williams (Count II), Bonney (Count III) and Byrd (Count IV) with which he was to pay the premiums due on insurance for them. The Respondent did not pay the premiums for these insureds when due, although he had received the money with which to do so.
Count VII
Jackie Ricks Colson first insured her 1979 Toyota with the Hickerson Agency in March 1979. In March 1980, she renewed the insurance on her car and added her husband's 1978 Pontiac Transam to the policy. In March 1981, having received notice that her automobile insurance required renewal, Mrs. Colson paid
$260 as a down payment to the Hickerson Agency and executed a finance agreement to finance the remainder of the premium with Capital Premium Plan. By financing the premium, Capital Premium Plan paid the Hickerson Agency the premium, and Mrs. Colson made payments as required under the financing agreement to Capital Premium Plan. Mrs. Colson made the payments as required from March 1981 through December 31, 1981, at which time she had paid off all but $3.60 of the borrowed amount, which Capital Premium Plan charged off.
Although requested many times to provide a copy of the policy by Mr. and Mrs. Colson, the Hickerson Agency did not do so. As a result thereof, the bank financing Mr. Colson's Transam insured that car and charged Mr. Colson for the insurance. The Colsons have never received a policy of insurance on their cars from the Hickerson Agency.
The records of the Hickerson Agency do not reflect that any insurance was in effect between March 17, 1981, and September 1981 on the Toyota and November 1981 on the Transam.
The Colsons' Toyota was insured on September 28, 1981, for a period of one year with Dixie Insurance Company for a premium charge of $495. (See Petitioner's Exhibit 28.) Their Pontiac Transam was added to said policy by endorsement effective November 27, 1981. (See Petitioner's Exhibit 29.)
On September 30, 1981, Mrs. Colson was involved in an auto accident in the Toyota, which suffered major damage. Mrs. Colson was unable to get her car from the garage until December 1981, because the insurance company would not pay for the repairs. Mr. Colson also had difficulty with delay in payment for insured damages when the top of the Transam was damaged.
The Respondent accepted a premium from Mrs. Colson but did not provide automobile insurance as requested between March 17, 1981, and September 28, 1981, on the Toyota and November 27, 1981, on the Transam. The Respondent did not provide the Colsons with copies of their policies after repeated requests.
Count VIII
The records of Capital Premium Plan (Petitioner's Exhibit 33) reflect the Respondent owed Capital Premium Plan $1,306.01 as the result of cancelled policies which required the Respondent to return unearned premium amounts to Capital Premium Plan. A statement for these accounts was presented in June 1982.
The record reflects that in late 1982 the Respondent paid $356.01 of the money originally owed. At the date of hearing, the Respondent owed Capital Premium Plan $950 in unearned premiums. The Respondent raised no valid defense to the claim by Capital Premium Plan.
Count IX
Pursuant to his agreement with Underwriters Insurance Company, the Respondent was required to pay said company premiums for policies sold issued by the company. (See Petitioner's Exhibit 34.)
As of September 1981, the Respondent's accounts with Underwriters Insurance Company were not current. The company's representative called upon the Respondent and made demand for the money owed by the Respondent to the company.
The Respondent gave the company's representative a check in full payment of the amount then due. This check was dishonored by the bank upon its presentation due to insufficient funds.
As a result thereof, Underwriters Insurance Company cancelled its underwriting agreement with the Respondent. The Respondent owed Underwriters Insurance Company approximately $6,000 as of the date of the hearing.
The Respondent asserted no reasonable defense to the company's claims.
Count X
On February 16, 1979, automobile and health insurance was purchased for Grecian Pool Service by Frank Weller, the company's president. Neither Grecian nor Weller received a copy of the insurance policies from the Hickerson Agency.
One of Grecian's vehicles was involved in an accident. Michigan Mutual, the insurer of the other vehicle, attempted to collect $228 for damages it had paid but which were the responsibility of Grecian's insurer. Michigan Mutual contacted the Hickerson Agency many times in an effort to obtain payment from Grecian's insurer but was unsuccessful.
Michigan Mutual contacted the Department of Insurance, and an agent of the Department contacted the Respondent, who stated that a check had been sent to Michigan Mutual. The Department's agent contacted Michigan Mutual, which denied receipt of the check. The Department's agent then asked the Respondent to provide the Department with a copy of the front and back of the cancelled check. In response, an employee of the Hickerson Agency advised the Department's agent that it had no information concerning the accident and requested the Department to provide more information in order that it could respond to the Department's request.
The Respondent failed to provide a timely response to Michigan Mutual of claim information as requested. The Respondent failed to provide the Department with records and information upon request. The Respondent failed to provide the insured with a copy of the insurance policy.
Count XI and XIII
W. F. Jones and James Earl Jones, who are brothers, both tendered premiums to the Hickerson Agency for the purchase of insurance on tractor- trailer trucks which they respectively owned.
The daughter of W. F. Jones paid the Hickerson Agency $2,678 in September 1981 for insurance on two trucks owned by W. F. Jones. This payment was made in four checks each for $669.50 to be negotiated one each week for four weeks commencing on September 2, 1981. (See Petitioner's Exhibit 52.)
On September 4, 1981, Shelley, Middlebrooks and O'Leary (hereinafter, SMO), general agent for Carolina Casualty, issued a binder on insurance for W.
F. Jones. The quoted down payment for this policy was $2,678, and the premium on the ten-day binder issued by SMO was $928.
The Hickerson Agency remitted to SMO the amount of $557.95. This was
$267.25 less than the required binder premium. SMO immediately notified the Hickerson Agency that additional money was due. When the money was not forthcoming, SMO sent the Hickerson Agency a 14-day notice of cancellation. This extended the coverage of the binder until October 6, 1981. The Hickerson
Agency did not forward any additional amount, and the insurance was cancelled on October 6, 1981. The amount received from the Hickerson Agency was less than the earned premium for the coverage from September 4, 1981, until October 6, 1981. In November 1981, the Hickerson Agency sent SMO a check for $257.25, the amount left owing on the earned premium.
In February 1982, after many requests by W. F. Jones and his wife for the insurance policy and inquiries from them to the Hickerson Agency about their monthly payments, Jones received notice from the company financing his trucks that the trucks were not insured by the Hickerson Agency as he had thought. W.
F. Jones checked with the Hickerson Agency, which was unable to produce a policy of insurance or other evidence of insurance. W. F. Jones demanded his money back, and the Respondent wrote Jones a check for the money that Jones had paid.
When Mrs. W. F. Jones took the Respondent's check for deposit, her bank advised her after checking with Respondent's bank that there were insufficient funds in Respondent's account to cover the check.
Because W. F. Jones had left on a trip, Mrs. Jones took the check to the Hickerson Agency and requested insurance. On February 5, 1982, Huffman and Associates bound coverage on W. F. Jones's two trucks with Canal Insurance Company. Huffman and Associates received $2,345 with a balance of $6,097, which was financed through a premium finance company. The Canal Insurance Company policy number for W. F. Jones was AC29 67 99.
No evidence was presented that the two trucks belonging to W. F. Jones were insured between October 6, 1981, and February 5, 1982, although the Hickerson Agency had received payment for the down payment in the amount of
$2,678.
James Earl Jones applied for insurance on his truck with the Hickerson Agency on or about July 29, 1981. Mrs. James Earl Jones wrote three checks to the Hickerson Agency on said date to be negotiated as indicated: July 29, 1981-
-$500 for immediate negotiation; $474--hold until August 5, 1981; $474--hold until August 19, 1981. The balance of the premium was financed with Capital Premium Plan with a monthly payment of $305.45. Monthly payments were made by James Earl Jones to the Respondent or to Capital Premium Plan until April 5, 1982. At that time, Capital Premium Plan cancelled the insurance due to late payments by the insured.
When notified of the cancellation of the insurance by Capital Premium Plan, Mrs. James Earl Jones contacted Canal Insurance Company in care of New South Underwriters, which was listed as the insurer by Capital Premium Plan. Mrs. Jones was advised by New South Underwriters that they had no record of insurance on the Jones's truck with Canal Insurance Company.
Mrs. James Earl Jones called the Hickerson Agency and asked for the policy number on the truck. The Respondent called Mrs. Jones and gave the policy number for the insurance on the truck as AC29 67 99, the policy number of
W. F. Jones. (See paragraph 38 above.)
When Mrs. James Earl Jones rechecked, she found that the policy was that of W. F. Jones, whereupon she called James Earl Jones, who went directly to the Hickerson Agency and spoke with the Respondent.
James Earl Jones demanded of the Respondent some proof of insurance. The Respondent gave him a copy of the first page of W. F. Jones's policy. When James Earl Jones pointed out the error and demanded proof of his insured status, the Respondent wrote him a check for $2,990.50, a refund of the down payment and payments which James Earl Jones had made to Capital Premium Plan through that date.
The records of Canal Insurance Company do not reflect insurance issued to James Earl Jones between July 1981 and March 1982. James Earl Jones was insured by Canal Insurance Company in April 1982 through an agency in Tampa not related in any way to the transaction with the Respondent.
The records of Capital Premium Plan reflect that money was borrowed for insurance to be placed with Canal Insurance Company through New South Underwriters. Capital Premium Plan made money available to the Respondent for the premiums as indicated.
The Hickerson Agency did not have records or produce records indicating that James Earl Jones was insured by the Hickerson Agency between July 1981 and March 1982, when the Respondent refunded Jones's premiums.
Count XII
In September 1981, Hugh Shaw of Ridge Printing purchased workmen's compensation insurance from the Respondent and paid for said insurance with two checks, each for $426.50.
Shaw was contacted in May 1982 by officials of the Department of Commerce and advised that he had no workmen's compensation insurance. Shaw referred the officials to the Respondent.
Shaw never received a policy of insurance from the Respondent for insurance purchased in September 1981. A search of the records of Mr. Hurst's agency revealed no insurance placed by the agency for Shaw. No evidence was introduced by the Respondent that Shaw was insured against workmen's compensation loss. No evidence was received that any portion of the premiums paid by Shaw were returned to him.
Count IV
(In addition to this count, many of the other counts in this Administrative Complaint allege that records related to various insureds were not present at
the Hickerson Agency, and that the Respondent failed to maintain records as required by law. The findings made relative to this count are applicable to similar allegations contained throughout the Administrative Complaint and constitute the findings of fact relative to those allegations.)
The Respondent sold his insurance agency to James Hurst, Jr., effective March 1, 1982. Testimony was received that some of the records alleged to have been missing later were present prior to that date. Evidence was received that many records were not present at the agency after that date. No evidence was received that the Respondent was responsible for removal of the records. Pursuant to their contract, James Hurst, Jr., was responsible for the office after March 1, 1982, and the Respondent is not vicariously liable for missing records after that date.
No evidence was presented as to any specific record at issue in these charges that was discovered to be missing prior to March 1, 1982.
Count XV
On October 2, 1981, Harold Scott purchased insurance on a camper from the Respondent. On that date, Scott gave the Respondent a check for $123 and signed a premium financing agreement for the balance of $287.
Scott never received a copy of the insurance policy. No evidence was introduced by the Respondent that Scott was insured.
In September 1982, the Respondent paid to Scott the down payment and other money that Scott. had paid on his insurance.
Count XVI
On April 7, 1981, Joseph Simmons purchased workmen's compensation coverage and a bond from the Respondent. Simmons paid $798 as a down payment and executed a premium financing agreement with Sesco Premium Plan.
Simmons never received a copy of the policy or a payment book.
Sesco Premium Plan never financed an insurance policy for Joseph Simmons of Winter Haven, Florida. (See Petitioner's Exhibit 64.)
No evidence was introduced by the Respondent that Simmons was insured against workmen's compensation claims after April 7, 1981.
The Respondent accepted a premium for insurance from Simmons and did not provide the requested coverage.
CONCLUSIONS OF LAW
The Department of Insurance and Treasurer has authority under the provisions of Chapters 624, 626 and 627, Florida Statutes, to discipline the Respondent. The Division of Administrative Hearings has authority to enter this Recommended Order pursuant to the provisions of Section 120.57(1), Florida Statutes.
All of the counts in the Administrative Complaint, except Count XIV, allege that the Respondent violated Section 626.561(1), Florida Statutes. Section 626.561(1) provides in pertinent part that all premiums received by an
agent shall be trust funds, and the agent shall account for said funds to the insurer, insured or other person entitled thereto. The provisions of Section 626.561(1), supra, are made disciplinary provisions through incorporation by reference within Sections 626.611 and 626.621, Florida Statutes. Section 626.611(13), Florida Statutes, provides that willful violation of any provision of this code shall be grounds for compulsory suspension or revocation of an agent's license. Section 626.621(2), Florida Statutes, provides that violation of any provision of the code or of any other law applicable to the business of insurance in the course of dealing under the license or permit shall be grounds for the discretionary suspension or revocation of an agent's license.
As Section 626.611(13), Florida Statutes, is applied to the allegations of the Administrative Complaint, it is concluded that where the Respondent violated the code with knowledge of a situation his conduct was willful. In those situations in which the Respondent violated the code without knowledge of a situation, it is concluded that his conduct was not willful and is a violation of Section 626,621(2), Florida Statutes. It is further concluded that a violation of Section 626.621(2), supra, would be a simultaneous violation of Section 624.11, Florida Statutes, because if one does not comply with the code, one is in violation thereof. It has also been concluded that the Respondent was personally liable for any of the acts or omissions of his employees pursuant to Section 626.734, Florida Statutes. With these general considerations in mind, the specific allegations of violation of Section 626.561(1), Florida Statutes, will be considered.
Count I of the Administrative Complaint alleges that the Respondent violated Section 626.561(1), Florida Statutes, in his transaction with Ms. Haller. The evidence presented shows that Haller paid the premium for her notary bond and Respondent did not provide the bond or return the premium to her. This constitutes a violation of Section 626.561(1) , Florida Statutes. Concerning the allegations of Counts II through VI, the record reflects that the Respondent eventually repaid the sums involved. There was not a violation of the cited section. Concerning the allegations of Count VII that the Respondent violated Section 626.561(1), Florida Statutes, in his transaction with the Colsons, the record reflects that insurance coverage was eventually provided to the Colsons on both vehicles. The cited section was not violated. Concerning the allegations of Counts VIII and IX, the record reflects that a total of $950 remained unpaid to Capital Premium Plan, and approximately $6,000 remained unpaid to Underwriters Insurance Company. These are violations by the Respondent of Section 626.561(1), Florida Statutes. Regarding the allegations of Count X, concerning Grecian Pool Service, there is no indication in the record that Grecian requested an accounting from the Respondent. There is no violation of the cited section. Concerning the allegations of Counts XI and XIII, the record reflects that the money paid as premiums by James Earl Jones and W. F. Jones was returned to them. There is no violation of the cited section. Count XIV does not allege a violation of Section 626.561(1), Florida Statutes. Counts XV and XVI both allege a violation of Section 626.561(1), Florida Statutes, in Respondent's transactions with Scott and Simmons. The record reflects that the premiums paid by Scott and Simmons were both returned to them. There is no violation of the cited section. Count XII alleges a violation of Section 626.561(1) , Florida Statutes, by the Respondent in his transaction with Ridge Printing. The record does not reveal any evidence of insurance having been in force or that the Respondent returned the money paid to him. Although he was not called to account for premiums paid by Ridge Printing, the Respondent was asked to account by officials of the State of Florida, who were entitled to inquire and who were referred to him by Ridge Printing. This constitutes a violation of Section 626.561(1), Florida Statutes.
Concerning the allegations of violation of Section 626.611(9), Florida Statutes, as contained in Counts I through XVI of the Administrative Complaint, said section provides that fraudulent or dishonest practices in the conduct of business under the license or permit are grounds for compulsory suspension or revocation of a license. Fraud is an offense which must be pleaded and proven specifically. It requires an evil intent on the part of the Respondent. No evidence was introduced relative to any of the 16 counts which would prove that the Respondent acted with fraudulent or dishonest intent. Section 626.611(9), Florida Statutes, was not violated.
Concerning the allegations contained in all 16 counts of the Administrative Complaint of violation of Section 626.9541, Florida Statutes, said allegations are derivative in nature, arising from allegations of a violation of Part VII of Chapter 626, Florida Statutes. Counts I through XVI allege violations of Section 626.9541(15)(a) of Part VII, supra; Counts VII and X allege violations of Section 626.9541(1)(c) of Part VII; and Counts XIV and XVI allege violations of Section 626.9541(5) of Part VII. Section 626.9541(15)(a), Florida Statutes, makes it a violation of the code to knowingly collect a premium for insurance which is not then provided or is not in due course provided. In all of the counts in the Administrative Complaint except Counts V, VI, VIII, IX and XIV, the Respondent or his agency accepted premiums for insurance which was not timely provided, which is a violation of Section 626.9541(15)(a) , Florida Statutes. Section 626.9541(9)(c) , Florida Statutes, addresses unfair claim settlement practices to include failing to acknowledge or act promptly upon communications with respective claims and failing to affirm or deny coverage of claims upon written requests of the insured within a reasonable time after proof of loss statements have been completed. Counts VII and X allege violation of this cited section. Regarding claims to the Colsons' automobiles, the Respondent failed to act promptly upon communication from the Colsons with respect to their claims and failed to keep them apprised of the reasons for the delay in settlement of their claims. With regard to the allegations in Count X, the Respondent failed to acknowledge and act promptly upon communication with respect to the communication to him from Michigan Mutual and from the Department's representative. In both instances, the Respondent violated Section 626.9541(9)(c) , Florida Statutes. With regard to the allegations of Count XIV that the Respondent removed files contrary to Section 626.9541(5), Florida Statutes, Petitioner failed to prove the factual allegation. However, even had this been demonstrated, the removal of such files cannot constitute a violation of Section 626.9541(5) , supra. With regard to the allegations of Count XVI, Petitioner failed to show that the Respondent knowingly made any false statements with regard to the insurance he was to provide for Simmons. A violation of Section 626.9541(5) , Florida Statutes, was not shown.
In each of the 16 counts except Count XIV, the Administrative Complaint alleges violation of Section 626.611(10), Florida Statutes. This section provides that misappropriation, conversion or unlawfully withholding money belonging to insurers or insureds or beneficiaries or to others received by the agent in course of business is grounds for compulsory revocation or suspension of the agent's license. In each of the pertinent 15 counts, except Counts V and VI, Petitioner showed that the Respondent had delayed payment or had not paid money which he had received in the conduct of his business under his license to persons entitled to receive said money. In Counts I through IV, VII through XIII, XV and XVI, the Respondent violated Section 626.611(10) , Florida Statutes.
In each of the counts of the Administrative Complaint except Count XIV, Petitioner has alleged that the Respondent violated Section 626.621(4), Florida Statutes. Section 626.621 (4) provides that the refusal or failure, upon demand, to pay over to any insurer which he represents or has represented any money coming into his hands belonging to the insurer is grounds for discretionary suspension or revocation of an agent's license. This provision requires a demand for payment by the insurer. Only Counts II through VI, IX and X relate to insurers. In Counts II through VI, the Respondent paid the money demanded. In Count IX, Michigan Mutual made a demand for payment of 228; however, the Respondent did not represent Michigan Mutual. In Count X, the record shows that the Respondent received demand for payment from Underwriters Insurance, whom he represented, and still owes some $6,000 to Underwriters. The Respondent violated Section 626.621 (4), Florida Statutes, as alleged in Count IX.
Each count of the Administrative Complaint alleges that the Respondent violated Section 626.621(6), Florida Statutes. Section 626.621(6) provides that an agent who, in the conduct of business under his license, engages in unfair methods of competition or in unfair or deceptive acts or practices as prohibited in Part VII of Chapter 626, Florida Statutes, or shows himself to be a source of injury or loss to the public or a detriment to the public interest may have his license revoked or suspended at the discretion of the Department. Therefore, a violation of Part VII of Chapter 626, as discussed above, would also constitute a violation of Section 626.621(6), Florida Statutes. Further, the record reflects that Haller, Capital Premium Plan, Underwriters, the Colsons and Michigan Mutual suffered losses as a result of the Respondent's conduct. Petitioner has proven that Respondent violated Section 626.621(6), Florida Statutes, in each count except Counts V, VI and XIV.
The Administrative Complaint alleges in Counts VII, IX, X, XI, XII, XIII and XV that the Respondent violated Section 627.421, Florida Statutes, by failing to deliver to an insured a copy of the insurance policy. The evidence shows that the Respondent failed to deliver policies to the Colsons, to Weller of Grecian, to W. F. Jones, to James Earl Jones, to Scott, and to Shaw of Ridge Printing. The Respondent violated Section 627.421, Florida Statutes, as alleged in Counts VII, X, XI, XII, XIII and XV. Count IX does not relate to the delivery of policies, and no violation is proven.
In Counts IX, X and XVI, the Administrative Complaint alleges that the Respondent violated Section 626.621(3), Florida Statutes. Section 626.621(3) provides that a violation of any lawful order or rule or regulation of the Department by a licensed agent may be cause for revocation or suspension of the agent's license in the Department's discretion. Neither the Administrative Complaint nor Petitioner's proposed findings of fact and conclusions of law reference any rule, regulation or order of the Department which the Respondent is alleged to have violated. There is no violation shown of the cited section.
The Administrative Complaint alleges violations of Sections 626.601(2) and 626.748, Florida Statutes, in Counts IX, X, XIV and XVI. Section 626.601(2) relates to the Respondent's alleged failure to keep records, and Section 626.748 relates to the Respondent's alleged failure to produce records. As stated in the Findings of Fact in this Recommended Order directly related to Count XIV, there is no evidence that the Respondent removed records from the agency at any time, and such records as were determined to be missing or not to have been kept subsequent to March 1, 1982, are not the responsibility of the Respondent because as of that date James Hurst, Jr., assumed responsibility for the agency. The Respondent may not be held vicariously liable for the lack of records which
were not present after March 1, 1982. However, with regard to Count X, an agent of the Department specifically requested information from Respondent's records prior to March 1, 1982, relating to the insurance of Grecian Pool Service. The Respondent did not produce those records and must be presumed to have failed to keep those records. The evidence shows that the Respondent violated Section 626.601(2) and Section 626.748, Florida Statutes, as alleged in Count X.
Every count of the Administrative Complaint alleges that the Respondent violated Sections 626.611(13) and 626.621(2), Florida Statutes. As stated above, Section 626.611(13) relates to willful violation of the insurance code. As stated above, it is concluded that one acts willfully if one has acted with knowledge. It is concluded in Count VII that the Respondent willfully failed to provide the Colsons with a copy of their insurance policy contrary to Section 627.421, Florida Statutes. In Count VIII, it is concluded that the Respondent willfully failed to repay Capital Premium Plan as required by Section 626.611(10), Florida Statutes. In Count XI, the Respondent willfully refused to pay Underwriters after receiving demand for payment from said company in violation of Section 626.611(10), Florida Statutes. In Count X, the Respondent willfully failed to provide information to Michigan Mutual and the Department in violation of Section 626.601(2), Florida Statutes. In Counts XI and XIII, the Respondent willfully failed to provide W. F. Jones and James Earl Jones with copies of their insurance policies after their many requests in violation of Section 626.421, Florida Statutes. Thereby, the Respondent violated Section 626.611(13), Florida Statutes, as alleged in Counts VII, VIII, IX, X, XI and
XIII. In the remaining counts, the Petitioner failed to show that the Respondent had knowledge of the conditions but showed that there were other violations of the statutes in all those counts except Counts V, VI and XIV. Therefore, the Respondent violated Section 626.621(2), Florida Statutes, as alleged in Counts I, II, III, IV, XII, XV and XVI.
In conclusion, each count of the Administrative Complaint alleges that the Respondent violated Section 626.611(7), Florida Statutes. This section provides that if an agent demonstrates lack of fitness or trustworthiness to engage in the business of insurance, the Department shall suspend or revoke his license. Each of the violations which the Respondent committed impacts upon consideration of this allegation. In all but Counts V, VI and XIV of the Administrative Complaint, the Respondent has been found to have violated one or more provisions of the statutes. Although Petitioner has not demonstrated that the Respondent committed these acts fraudulently or dishonestly it has demonstrated that the Respondent has willfully violated the statutes as set forth above. Considering the record in its entirety, Petitioner has shown the Respondent to be lacking in fitness to engage in the business of insurance and guilty of violation of Section 626.611(7), Florida Statutes.
While violations of Section 626.621, Florida Statutes, permit the Department discretion in disciplining a licensee, violations by the Respondent of Section 626.611, Florida Statutes, as found above, mandate that the Department must discipline him. Considering the number and the severity of the violations, it is recommended that the Department of Insurance and Treasurer revoke each and every license held by the Respondent, James Edward Hickerson.
DONE and RECOMMENDED this 17th day of June, 1983, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN, 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 17th day of June, 1983.
COPIES FURNISHED:
Curtis A. Billingsley, Esquire Department of Insurance
Larson Building Tallahassee, Florida 32301
Douglas H. Smith, Esquire Post Office Box 1145
Lake Alfred, Florida 33850
Marvin B. Wood, Esquire 2600 Industrial Park Drive Lakeland, Florida 33801
Tom Pobjecky
State Attorney's Office Post Office Box 1309 Bartow, Florida 33838
The Honorable William Gunter State Treasurer and Insurance
Commissioner
The Capitol, Plaza Level Tallahassee, Florida 32301
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AGENCY FINAL ORDER
=================================================================
OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE
DEPARTMENT OF INSURANCE AND TREASURER,
Petitioner,
vs. CASE NO. 82-2849
JAMES EDWARD HICKERSON,
Respondent.
/
FINAL ORDER
THIS CAUSE came before the Insurance Commissioner and Treasurer for consideration and final agency action after administrative proceedings designated Case No. 82-2849 were conducted before the Division of Administrative Hearings, Department of Administration. The Recommended Order was rendered by the Hearing Officer and has been considered by the Insurance Commissioner. A complete review of the record has been made and upon consideration thereof:
IT IS ORDERED:
That the Findings of Fact in the Hearing Officer's Recommended Order (copy attached) is hereby adopted and incorporated by reference.
That the Conclusions of Law by the Hearing Officer are hereby adopted and incorporated by reference except for the Conclusion regarding the violation of Section 626.561(1) by the acts charged in Counts II - VII, X, XI, XIII, XV and XVI of the Administrative Complaint. Section 626.561, Florida Statutes, provides that all premiums received by an agent are trust funds received by the agent in a fiduciary capacity and that agent is required "in the applicable regular course of business" to pay those premiums to the insurer or other person entitled thereto. With regard to Counts II - VI, the regular course of business indicates that the payments should have been received by the insurer no later than March 15, 1982. Since Hickerson did not satisfy his financial obligations in that regard until July 19, 1982, he violated Section 626.561, Florida Statutes, with regard to those Counts. With regard to Counts X, XI, XIII, XV and XVI, there is no evidence that Hickerson sent the premiums given to him by proposed insureds named in those Counts to the appropriate insurer at any time. Complete failure to pay an insurer the premium belonging to that insurer can never be construed to satisfy the agent's requirement to provide the premium "in the applicable regular course of business." Accordingly, Hickerson also violated Section 626.561(1) with regard to Counts X, XI, XIII, XV and XVI.
The recommendation of the Hearing Officer is adopted and incorporated by reference. Accordingly, all insurance licenses possessed by James Edward Hickerson add the eligibility to hold the same are hereby revoked.
DONE and ORDERED this 3rd day of August , 1983.
BILL GUNTER
Insurance Commissioner and Treasurer
WILLIAM D. RUBIN, Assistant Insurance Commissioner
and Treasurer
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been furnished by US Mail to Stephen Dean, Hearing Officer, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301, by certified mail to Douglas Smith, Esquire, Post Office Box 1145, Lake Alfred, Florida 33850 and Marvin Woods, Esquire, 2600 Industrial Park Drive, Lakeland, Florida 33801, this 3rd day of August, 1983.
RAYMOND. F. BEHLING
Chief Attorney/for CURTIS A. BILLINGSLEY
Attorney
Department of Insurance 413-B Larson Building Tallahassee, Florida 32301
(904) 488-4540
| Issue Date | Proceedings |
|---|---|
| Aug. 04, 1983 | Final Order filed. |
| Jun. 17, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 03, 1983 | Agency Final Order | |
| Jun. 17, 1983 | Recommended Order | Respondent was found guilty of multiple willful violations of insurance code. Recommend revocation. |
DEPARTMENT OF INSURANCE AND TREASURER vs. CHARLES LEE ANDERSON, 82-002849 (1982)
DEPARTMENT OF INSURANCE AND TREASURER vs. WILLIAM JOHN HARTNETT, 82-002849 (1982)
DEPARTMENT OF INSURANCE vs INES JOANNA FERNANDEZ, 82-002849 (1982)
IN RE: MARCH 8, 2019, PETITION FOR DECLARATORY STATEMENT, ELIAS MAKERE vs *, 82-002849 (1982)
DEPARTMENT OF INSURANCE AND TREASURER vs STEVEN SCHNUR, 82-002849 (1982)
