STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, ) OFFICE OF STATE EMPLOYEES' )

INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2110

)

KATHLEEN POMEROY )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held on September 9, 1986, pursuant to notice in Holly Hill, Florida, by Stephen F. Dean, assigned Hearing Officer of Division of Administrative Hearings. This case arose upon notification of Pomeroy by Department of Administration that deductions for her family health insurance coverage had been insufficient and that she owed the state $914.74 for coverage provided. Pomeroy requested a formal hearing pursuant to Section 120.57, Florida Statutes, and the matter was referred to Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Augustus Aikens, Esquire

General Counsel

Department of Administration

435 Car1ton Building Tallahassee, Florida 32301

FOR RESPONDENT: Howard L. Cauvel, Esquire

RANO, CAUVEL & JOHNSON, P.A.

233 East Rich Avenue DeLand, Florida 32724

ISSUES

The issues which developed were:

1. Did Pomeroy receive the coverage as asserted by Department of Administration, and

   
   

2. What deductions were made from Pomeroy for the coverage, and

   
   

3. What deductions were required for the coverage, and

   
   

4. Did Pomeroy owe additional for the coverage, and

5. Should the doctrine of laches be applied against the State to prevent the State from asserting the claim?

FINDINGS OF FACT

1. Ms. Kathleen Pomeroy was employed by the State of Florida, Department of Health and Rehabilitative Services, on April 3, 1984.

   
   

2. When she was employed, Pomeroy became eligible for participation in the state's health insurance plan. She applied for coverage on April 3, 1984, filling out and signing the application form, Petitioner Exhibit 2.

   
   

3. Ms. Pomeroy indicated she desired Family I Coverage, insuring herself and her husband, Albert Pomeroy, who was not a state employee. See Petitioner Exhibit 2.

   
   

4. Family I Coverage was provided by the State as indicated by issuance of an insurance card. Although the Pomeroy's never had occasion to make a claim against the insurance, the insurance was in effect from the date of acceptance into the program through the date of the hearing. (Pomeroy's Testimony)

   
   

5. The State erroneously failed to deduct the correct amount for insurance premiums from Pomeroy's salary. For May, June and July 1984 the State should have deducted $48.46/month. From August 1984 until March 1986 when the error was caught and corrected, the State should have deducted $55.64/month. However, the State deducted only $7.59 per pay period. Ms. Pomeroy had twenty six (26) pay periods per year, which converts to a monthly payment of $16.45($7.59 x 26 divided by 12 equals $16.45)

   
   

6. For May, June and July 1984 the State failed to deduct $96.03, ($48.46

   - $16.45 x 3 equals $96.03).

   
   

7. From August 1984 to March 1986 the State failed to deduct $1,057 over

   19 months, ($55.64 - $16.45 x 19 equals $1,057). This is a computed total of

   $1,153 based upon Petitioner Exhibit 1. However, the State asserts a claim against Pomeroy totalling $914.74.

   
   

8. The State, as indicated above, discovered its error in March 1986 and began deducting the appropriate premium and asserted at that time Pomeroy owed back premiums totaling $914.74.

   
   

   CONCLUSIONS OF LAW

   
   

9. This order is entered pursuant to Section 120.57(1), Florida Statutes. The Department of Administration administers the state's health insurance plan.

   
   

10. The facts reflect Ms. Pomeroy applied for Family I Coverage, received Family I Coverage, and would have been entitled to the benefits of Family I Coverage had she or her husband had a claim. The State failed to deduct enough premiums between May 1984 and March 1986 for the Family I coverage provided Ms. Pomeroy, and the State claims $914.74, an amount less than the amount computed from evidence under payment.

11. Ms. Pomeroy suggested the State is barred from making the claim by laches. However, for laches to apply, Ms. Pomeroy would have to suffer some detriment. Ms. Pomeroy demonstrated no detriment which she or her family suffered. She received the coverage for which she bargained. Now, she must pay.

    
    

12. Clearly, there is a detriment if Ms. Pomeroy has to repay the $914.74 in a lump sum or in large increments while paying the appropriate premium of over $55/month. The State should use restraint in seeking repayment.

RECOMMENDATION

The State should recover $914.74 from Kathleen Pomeroy for underpayment of insurance premiums in 78 equal payments over the next three years, or recover any remaining unrecovered balance from Ms. Pomeroy's last pay check as a lump sum.

DONE AND ORDERED this 10th day of October 1986, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2110

The following constitute my specific rulings on petitioner's proposed findings pursuant to Section 120.59(2), Florida Statutes (1985). Respondent did not file proposed findings.

Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Paragraph 1 adopted.

2. Paragraph 2 adopted.

3. Paragraph 3 rejected as irrelevant and argumentative.

4. Paragraph 4 rejected. No facts support these specific findings, although computations indicated premiums were first paid in May.

5. Paragraph 5 rejected. See paragraph 3, Finding of Facts, which is substituted.

6. Paragraph 6 rejected as irrelevant and argumentative.

7. Paragraph 7 regarding May, June and July 1984, there is no evidence to support the finding that $13.28 was deducted each month. See Finding of Facts paragraph 5. Regarding premiums August 1984 - March 1986 the computations follow those in Finding of Facts,

   paragraph 6.

   Regarding April 1986, there is no evidence to support a premium payment of $35.41.

8. Paragraph 8 and 9 essential parts adopted in paragraph

8 of Finding of Facts.

COPIES FURNISHED:

Augustus Aikens, Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Howard L. Cauvel, Esquire RANO, CAUVEL & JOHNSON, P.A.

233 East Rich Avenue DeLand, Florida 32724

Docket for Case No: 86-002110

Orders for Case No: 86-002110