STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2393

)

MICHAEL QUINTANA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on October 18, 1984, in Tampa, Florida. The issue for determination in this proceeding is whether respondent's license as an insurance agent should be revoked, suspended or otherwise disciplined for the reasons set forth in the Administrative Complaint dated June 11, 1984.

APPEARANCES

For Petitioner: William W. Tharpe, Jr.

413-B Larson Building Tallahassee, Florida 32301

For Respondent: Timothy G. Anderson

620 East Twigg Street Tampa, Florida 33602

INTRODUCTION

By an Administrative Complaint dated June 11, 1984, respondent was charged with various violations of the Unfair Insurance Trade Practices Act by engaging in conduct falling within the definitions of "unfair methods of competition and unfair or deceptive acts or practices," as set forth in Section 626.9541(1), Florida Statutes (1983). Basically, the factual gravamen of the complaint is that respondent, while selling Shirley W. McLaughlin a homeowners insurance policy, falsely and fraudulently obtained her application and signature for a life insurance policy without her knowledge or consent.

In support of the charges against the respondent, Petitioner offered the testimony of Shirley W. McLaughlin, her husband Timothy Raymond McLaughlin and Roland E. Kissinger, a sales manager with Metropolitan Insurance Company.

Petitioner's Exhibits 1 through 4 were received into evidence. Respondent testified in his own behalf.

Subsequent to the hearing, counsel for the parties were afforded the opportunity to submit proposed findings of fact and proposed conclusions of law. Neither party did so. Counsel for the petitioner did write a letter, candidly advising the undersigned that:

"The testimony and evidence presented at the hearing was not what I had expected and in fact, caught me by surprise. I had tried to contact Mr. and Mrs. McLaughlin prior to the hearing but was unable to reach them. Had I discussed this case with them prior to the hearing I might have decided that it would be inappropriate to proceed. However, I can assure you that our charges against Mr.

Quintana were well-founded based on the information in our files.

Nevertheless, after reviewing the transcript of the hearing I find insufficient evidence

to argue that we had proved a violation of the Insurance Code. Consequently, I will not file any proposals but will await a copy of your recommended order to the Commissioner."

FINDINGS OF FACT

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

1. Respondent Michael Quintana is currently licensed as a general lines agent in Florida.

   
   

2. On or about January 18, 1983, respondent went to the home of Shirley W. McLaughlin for the purpose of soliciting insurance. Mrs. McLaughlin agreed to purchase a homeowners insurance policy and "mortgage" insurance was also discussed. She supplied the necessary information and signed the applications for both the homeowner insurance and the "mortgage" insurance. While she did not desire to purchase what she understood to be strictly "life" insurance, she did understand that what she "was getting at that particular time was protection for the house, period." (TR. 32) She further understood that she was applying for coverage that would pay something if either she or her husband died, and that such would be payable to the beneficiaries.

   
   

3. While she was given the opportunity to review all the papers she signed on January 18, 1983, Mrs. McLaughlin apparently did not understand that the premium payments for the "mortgage" insurance would be automatically withdrawn from her bank account. Sometime after her application for homeowners insurance was refused because of a space heater in her home, Mrs. McLaughlin learned from her bank of the automatic withdrawal of premium payments for the "mortgage" insurance. She thereafter cancelled such insurance and all monies were refunded to her.

   
   

4. The cover sheet for the "mortgage" insurance policy identifies the policy as a "joint reducing term life insurance policy." The inserted printout setting forth the costs and benefits describes the basic policy as "joint reducing term life (20-year mortgage term) with disability waiver benefit." Agents within the company with which respondent was employed on January 18, 1983, typically refer to such a policy as a "mortgage insurance policy" or a

   "mortgage cancellation policy," as opposed to a "life insurance policy." The term "mortgage" is used to delineate that a specific policy has been purchased for a specific loss. The beneficiary of such a policy has the option of either paying off the mortgage or using the money for any other purpose.

   
   

   CONCLUSIONS OF LAW

   .

5. The Department of Insurance has charged the respondent with engaging in

   conduct as defined in Section 626.9541, Florida Statutes, thereby violating Sections 626.9521, 626.611(13) and 626.621(2) and (3), Florida Statutes.

   Factually, it is alleged that respondent falsely and fraudulently caused Mrs. McLaughlin to apply for and purchase life insurance without her knowledge or consent.

   
   

6. The record of this proceeding contains absolutely no evidence to support the factual allegations of the Administrative Complaint. Instead, the evidence demonstrates that the insurance applied for and purchased by Mrs. McLaughlin was discussed and explained to her by the respondent. No evidence was adduced which would even remotely tend to establish that respondent either made false representations to Mrs. McLaughlin or that Mrs. McLaughlin was not aware of the nature of the applications signed by her. Indeed, the testimony from Mrs. McLaughlin is to the contrary.

   
   

7. In disciplinary proceedings, the licensing agency clearly bears the burden to prove the allegations charged. That burden, no matter what standard of proof is required, was clearly not met in this proceeding.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed on June 11, 1984, be DISMISSED.

Respectfully submitted and entered this 25th day of January, 1985, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1985.

COPIES FURNISHED:

William W. Tharpe, Jr. 413-B Larson Building Tallahassee, Fla. 32301

Timothy G. Anderson 620 E. Twigg Street Tampa, Fla. 33602

Bill Gunter

Insurance Commissioner The Capitol

Tallahassee, Fla. 32301

Docket for Case No: 84-002393

Orders for Case No: 84-002393