STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE ) AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6414

)

DALE JOSEPH DYER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in St. Petersburg, Florida on February 14, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James A. Bossart, Esquire

Department of Insurance and Treasurer Division of Legal Services

412 Larson Building

Tallahassee, Florida 32399-0300

For Respondent: Kelli Hanley Crabb, Esquire

Battaglia, Ross, Hastings and Dicus 980 Tyrone Boulevard

Post Office Box 41100

St. Petersburg, Florida 33743 STATEMENT OF THE ISSUES

The issue for consideration herein is whether Respondent's license and eligibility for licensure as a Health Insurance Agent in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

On October 20, 1989, Tom Gallagher, Treasurer and Insurance Commissioner for the State of Florida, filed an Administrative Complaint in this case which, in two Counts, charged the Respondent, Dale Joseph Dyer, with multiple violations of the provisions of Chapter 626, Florida Statutes, as a result of his dealings with Mr. and Mrs. Harry Laws, (Count I), and Dorothy Hendryx, (Count II).

On November 9, 1989, Respondent, through his counsel, filed a request for formal hearing, and by letter dated November 22, 1989, the matter was forwarded to the Director, Division of Administrative Hearings, for appointment of a Hearing Officer. By Notice of Hearing dated December 18, 1989, Hearing Officer Donald D. Conn, set the matter for hearing on February 14, 1990, at which time,

the case was heard by the undersigned to whom it had been transferred in the interim.

At the hearing, Petitioner presented the testimony of Harry Layton Laws and Nina Virginia Laws, his wife, purchasers of the policies outlined in Count I; Larry Hutchison, Associate General Counsel of United America Insurance Company; Hayden Bolstadt, Vice President of Pioneer Life Insurance Company; Rosa Mae Ferrell, Administrator of Petitioner's Health Section, and an expert in the field of health insurance policies in Florida; Thelma L. Williams, a questioned document examiner; and, by deposition, Dorothy Hendryx, purchaser of the policies outlined in Count II. Petitioner also introduced Petitioner's Exhibits

1 through 10. Respondent testified in his own behalf and presented

the testimony of Alan Chappuis, a health insurance salesman and coworker with Respondent; and, by deposition, Ms. Hendryx. Respondent also introduced Respondent's Exhibits A and B. With the concurrence of both parties, the undersigned took official recognition of Rule 4-51.07, F.A.C.. Both parties agreed the depositions of Harry and Nina Laws would be considered as exhibits and this has been done.

A transcript was provided and both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Respondent, Dale Joseph Dyer, was eligible for licensure and licensed as a Health Insurance Agent in Florida, and the Petitioner, Department of Insurance, (Department), was the State agency responsible for the regulation of the insurance industry in this state.

   
   

2. At some time prior to the months of February, 1988, Harry L. Laws, a retired auctioneer, and his wife, Nina, had held Medicare Supplement health insurance policies issued by National States Insurance Company, (National States). For the most part, they had been satisfied with their policies and the service they received on claims filed thereunder, but because of the company's failure to pay one claim, they had terminated their previous relationship with it, and had taken a similar policy from United American Insurance Company, (United American).

   
   

3. In February, 1988, when he still had not received the payment he thought he should have received from National States, Mr. Laws called the local Tampa agent, Diversified Health Services, to complain. In response, Respondent's supervisor, Mr. Slott, sent Respondent and an associate, Mr. Chappuis, to the Laws home in an effort to solve the claims problem and to get the Laws to come back as policy holders of National States.

   
   

4. When Respondent and Mr. Chappuis arrived at the Laws home, they went over the disputed claim and the former policy with the clients. Ultimately, Respondent agreed to take the disputed bills back to the office with him and he represented that he would see they were paid. However, Respondent and Mr. Chappuis worked hard to sell Mr. and Mrs. Laws new coverage with National States. At first Mr. Laws was not interested as he was satisfied with the coverage he had with United American. However, Respondent and Chappuis, working in tandem, represented that their National States policy would provide better coverage for less money, and that United American would be raising its rates in the near future. As a result of these claims, Mr. Laws purchased from them a

   Medicare Supplement policy for himself and also for his wife. The premium for both policies, together, was between $2,000.00 and $2,100.00.

   
   

5. One of the important features of the new National States policies was a provision providing vision, hearing and dental coverage which was not provided under either Medicare or the United American policy. This was a major selling point of the policy in issue. Both Mr. and Mrs. Laws contend, though both Respondent and Mr. Chappuis deny it, that she advised Respondent she already wore a hearing aid but it was giving her trouble and she needed to have two new ones, one for each ear.

   
   

6. Notwithstanding that the policy application signed by Mrs. Laws reflects a statement to the effect she did not wear a hearing aid, she claims she did not see that entry which was made by Respondent. In addition, on the day she and her husband were visited by the Respondent and Mr. Chappuis, she was not wearing her hearing aid because it bothered her. Though Respondent denies knowing Mrs. Laws already wore a hearing aid, considering the evidence as a whole, it is found that disclosure of that fact was clearly made by both Mr. and Mrs. Laws, and Respondent knew it. The Laws contend, and it is so found, that either Respondent or Mr. Chappuis advised Mrs. Laws to purchase only one aid at a time, one each year, so the new insurance would cover their cost. Neither Mr. nor Mrs. Laws can be sure as to which agent made the statement, but they recall that both were present at the time and one confirmed what the other said.

   
   

7. When the claim for the first new hearing aid was submitted by the Laws, it was denied because coverage applied only to an "initial purchase". Since Mrs. Laws already used a hearing aid, the new one purchased was not covered.

   
   

8. Another selling point utilized by Respondent and his associate was their representation that Medicare supplemental coverage under the new National States policy would not be effective until six months after issuance of the policy. Respondent urged that since the existing United American policy had six more months to go, if Mr. Laws signed up that day, he would have continuing coverage when that existing policy expired. In actuality, the six month delay under the terms of the National States policy pertained only to existing conditions. Coverage for new conditions would be immediate and would duplicate coverage provided under the United American policy.

   
   

9. Mr. Laws claims, and it is so found, that he was satisfied with his United American policy and really didn't want to change. He did not want or need two Medicare Supplement policies and did not believe both would pay for the same illness. He bought the new National States policy only because of the Respondent's representations and the urging of both Respondent and Mr. Chappuis. They told him he could recover under both policies, and, it would appear, he could though this practice was not recommended.

   
   

10. On the day of that first visit, Respondent and Mr. Chappuis also discussed with Mr. laws a nursing home policy. This policy was expensive and Mr. Laws wanted to think about it before deciding. When Respondent came back the next day, and brought a copy of the policy, it looked good to Mr. Laws and he bought one for both himself and his wife at a premium of $679.30 each.

    
    

11. When the new policies arrived, Respondent and Mr. Chappuis went to the Laws home and went over them with them. At this time, Mr. Laws indicated he still had not received payment on the prior policy claim he had discussed with them on their first visit. Respondent and Mr. Chappuis told Mr. Laws a story about processing problems and procedures, and when Mr. Laws threatened to cancel

    the new National States policies, they again promised to check on his claim.

    He tried several times thereafter to contact his agent by phone without success. By the time he finally decided to take some action, the 30 day "cancellation with refund" period on the new policies was up. He filed a complaint with the Department of Insurance and only then was he reimbursed the premium he had paid, less the amount paid by the company on a dental claim under the new policy. He still has not received payment for the claim submitted under the old National States policy.

    
    

12. On or about August 30, 1988, Respondent went to the home of Dorothy T. Hendryx, an 82 year old widow, in Neptune Beach, Florida. Mrs. Hendryx does not remember if she called Mr. Dyer to come, if she sent in a response card which prompted his visit, or if he just showed up at the door. In fact, he was sent there by his company to see why her prior policies with National States had been allowed to lapse. According to Respondent, Mrs. Hendryx indicated she had not intended to let her policies lapse. As a result of their discussion, the details of which she does not remember, Mrs. Hendryx purchased from National States, through Respondent, a Medicare Supplement policy with riders to (1) increase the supplement to Medicare, Part B, (2) provide dental, vision and hearing care, and (3) provide coverage for extended care facility confinement, with a total annual premium of $1,246.00. She also purchased a nursing home policy with an annual premium of $1,388.00. Mrs. Hendryx paid both premiums in full at the time she signed the applications on August 30, 1988. Respondent contends that during the visit Mrs. Hendryx showed him her existing recently purchased Pioneer policy which he compared with the product he was selling. Not surprisingly, he found his product to be better.

    
    

13. At the time she purchased the two above-described policies from Mr. Dyer, Mrs. Hendryx also had a Major Medicare Supplement Policy issued by United American, through its agent, Mr. Proffit, on May 20, 1988, which was due to expire on May 20, 1989.

    
    

14. Mrs. Hendryx cannot recall if, at the time she spoke with the Respondent, she told him she had the Pioneer and the United American policies. At hearing he denied that she did or that he knew of their existence. However, he admitted comparing the Pioneer policy to the one he was selling, so he must have known of its existence. Further, the United American policy bears several handwritten and hand printed notations on the cover. Those that are written in cursive were identified by Mrs. Hendryx as being in her handwriting. The hand printed notation, "Do Not Renew on 5-89," though at first identified by Mrs. Hendryx as hers, was determined by an expert questioned document examiner, contrary to the denials of the Respondent, to be in his handwriting. Therefore, in light of this expert opinion and Respondent's admission at the hearing to the sale of a National States policy to Mr. Law with knowledge of a preexisting United American policy, it is found that Respondent was also aware, at the time he sold the National States Medicare Supplement policy to Mrs. Hendryx, of the existence of a Medicare Supplement policy issued to her by United American in May, 1988. In addition, On or about October 1, 1988, Mr. Dyer again went to Ms. Hendryx's home and on this occasion sold her two additional medical-surgical expense policies with National States, with a total additional premium of

    $1,336.00. Though Mrs. Hendryx recalls little of the substance of the conversation she had with Respondent, she is sure that at no time did he force her to buy the policies or harass or threaten her, nor was he mean to her. She purchased the policies from him because she felt she needed them.

    
    

15. Neither United American nor Pioneer Life Insurance Company received a replacement letter from the Respondent on behalf of National States as a result

    of the sales he made to the Laws and to Mrs. Hendryx. Replacement letters are required to be filled out and sent by an agent who sells to a client a new policy which he believes may replace an existing policy. In the instant case, the National States policy sold to Mr. Laws did not replace the existing United American policy but was in addition to it. The policies sold to Mrs. Hendryx did, however, replace the United American policy she had.

    
    

16. In the opinion of Ms. Ferrell, the Department's Administrator of the Health Section and an individual with 42 years of experience in the insurance field, much of the coverage sold to both the Laws and Mrs. Hendryx duplicated coverage they already had through Medicare or through policies they owned at the time Respondent sold them the National States policies. In her opinion, the United American policies held by both were good supplements which did not duplicate the coverage provided under Medicare.

    
    

17. Specifically, as to the National States policies sold to the Laws:

    
    

    1. The Medicare Supplement policy duplicated the

       Part A coverage provided through their United American policy except that the United American policy paid somewhat larger benefits for a longer period. The Part B coverage duplicates but exceeds the benefits paid under the United American policy, depending upon the size of the claim, but pays the $75.00 deductible

       which the other policy does not.

    2. The vision, dental and hearing coverage pays 100% of the "initial" cost of a hearing aid and pays for dental and vision care, neither of which is covered by Medicare or the United American policy. With regard to the term "initial", the Department uses that definition found in the Webster dictionary which means the first device of that kind owned by the insured. Here, it would not have covered Mrs. Laws' replacement hearing aid.

    3. The National States Nursing Home Policy

       duplicates Medicare coverage for the first one hundred days. After the first one hundred days and the co- payment, the National States coverage does not duplicate anything. Medicare requires a three day hospital stay prior to entry into a nursing home before the home cost is covered. Further, Medicare pays for only skilled and intermediary care homes. The United American policy covers care in skilled homes only.

       Therefore the National States coverage for immediate entry into intermediate and custodial care homes is not duplicative of either Medicare or the United American coverage.

       
       

18. With regard to the National States policy sold to Mrs. Hendryx:

    
    

    1. The National States Medicare Supplement policy duplicates the breadth of the preexisting United American coverage, though it pays somewhat less as to Medicare, Part A. It may duplicate the United American Part B coverage but the rider to increase Part B medical payments to 40% of Medicare eligible expense is reasonable and an extra benefit.

    2. The National States Nursing Home policy duplicates the coverage with regard to nursing homes contained in the other National States policies she had, in the Pioneer and United American policies, and to a large degree, by Medicare. That portion of the policy providing payment for home health care is unnecessary since Medicare pays 100% of all costs

       by a Medicare approved provider for an unlimited number of days.

    3. The National States Limited Medical Surgical coverage, relating to Part B, ( Medical Services), is usually sold to fill the gap between the amount paid under Major Medical contracts and the doctors' usual charges. It was not designed for use by Medicare patients since it will not do anything more than Medicare and a Medicare Supplement policy does.

    4. The National States Medical Treatment policy, relating to Part B, to a great degree duplicates the prior described medical/surgical policy, and taken together, they duplicate the coverage of Medicare and a Medicare Supplement policy. They are clearly not needed.

       
       

19. All together, Mrs. Hendryx was sold a number of policies which will pay her far more than is needed to meet her medical care needs. The supplemental policies were designed to provide financial coverage of those expenses not covered by Medicare. They were not designed as an investment to provide duplicate payments over and above the uncovered area. To use them as they were used here by the Respondent results in an overcompensation to the insured which has the effect of raising premiums to all policy holders. A qualified insurance agent, as Respondent holds himself out to be, should know this. A recommendation not to use policies in this manner is contained in a pamphlet published for insured by National States, the Respondent's company.

    
    

20. Both Respondent and Mr. Chappuis deny in any way exerting pressure on Mr. Laws. When they went to his home to see about the claim complaint, they determined that though the Laws had good coverage, they could provide them better coverage by selling them a new policy. No replacement letter was sent because they did not feel it was required since the United American policy in effect was not being cancelled. This is true. The effect of the sale, however, was to largely duplicate existing coverage, except for the dental, vision and hearing coverage in the new policy, and there is a showing of some misrepresentation regarding that.

    
    

21. Mr. Chappuis, who has visited between twenty and thirty clients with the Respondent, believes that at no time did Respondent misrepresent to or mislead the Laws. In Chappuis' opinion, Respondent has the technical competence to properly sell insurance and knows his product. Mr. Chappuis' credibility is somewhat suspect, however and his testimony in this regard must be weighed on the scale of his own self interest.

    
    

22. Both Chappuis and the Respondent agree that Mr. Laws' dissatisfaction with National States, and the reason for his complaint, was not the sale of these policies but the failure by the company to pay the claim from the prior policy. For the most part, Mr. Laws agrees, and it is so found.

    
    

23. As to Mrs. Hendryx, Respondent did not fill out a replacement form regarding the sale to her because he did not feel she was replacing anything.

    He claims not to have known of any existing policy except the Pioneer policy. This has already been determined not to be so. To the time of the hearing, he claims no coverage he sold duplicates any coverage Mrs. Hendryx had either by policy or by Medicare. While there were some additions, there was, nonetheless, extensive duplication of Medicare coverage in addition to coverage not pertinent to an individual in Mrs. Hendryx's situation. The vision, dental and hearing coverage would be of limited benefit to her in light of her preexisting use of dentures and glasses and a hearing aid.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

25. In the two counts of the Administrative Complaint herein, Petitioner alleges Respondent has violated several subsections of Chapter 626, Florida Statutes, in his relationships with two of his customers, Mr. and Mrs. Laws and Ms. Hendryx. Respondent's alleged misconduct is related to his sale of policies to these customers while knowing either that what he was selling was unnecessary coverage and duplicative of coverage they already had, or that it did not do what it was represented to do.

    
    

26. To prevail here, Petitioner, which has the burden of proof, must demonstrate by clear and convincing evidence, Respondent's guilt of each of the allegations outlined. Ferris v. Turlington, 510 S.2d 292 (Fla. 1987)

    
    

27. As to both Counts I and II, Petitioner specifically alleges that Respondent is guilty of: misrepresentation, (626.611(5) and 626.9541(1)(a); a demonstrated lack of fitness and trustworthiness to engage in the insurance business, (626.611(7); a demonstrated lack of general knowledge, (626.611(8); fraudulent or dishonest practices, (626.611(9); willful failure to comply with a rule or order of the department, (626.611(13) and 626.621(3); violation of the provision of the insurance code or other law, (626.621(2); violation of the rule against "twisting", 626.621(5); engaging in unfair or deceptive methodology of competition or being a source of loss or injury to the public, (626.621(6) and 626.9521; knowingly making an untrue, deceptive or misleading advertisement, (626.9541(1)(b) and (1)(e)1; and improperly comparing his policies with those of another company, (Rule 4-4.003(2) F.A.C.).

    
    

28. Section 626.611, and the pertinent subsections thereunder outline the grounds for compulsory disciplinary action against an insurance agent's license to include suspension or revocation of an existing license or denial of an applicant. In pari materia this statute proscribes:

    
    

    (5) Willful misrepresentation of any insurance policy or annuity contract or willful deception with regard to any such policy or contract, done either in person or by any form of dissemination or information or advertising.

    1. Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.

    2. Demonstrated lack of reasonably adequate knowledge and technical competence to engage in the transactions

       authorized by the license or permit.

    3. Fraudulent or dishonest practices in the conduct of business under the license or permit.

    (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.

    
    

29. Subsection 626.621, as pertinent here, provides grounds for discretionary discipline of a nature identical to that outlined in section 626.611 for:

    
    

    1. 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 permit.

    2. Violation of any lawful order or rule of the department.

    1. Violating the provision against "twisting" as defined in 626.9541(1)(l)

    2. In the conduct of business under the license or permit, 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.

    "Twisting" is defined at Section 626.9541(1)(l) as:

    Knowingly making any misleading representations or incomplete or fraudulent comparisons of any insurance policies or insurers for the purpose of inducing, or tending to induce, any person to lapse, forfeit, surrender, terminate, retain, pledge, assign, borrow on, or convert any insurance policy or to take out a policy of insurance in another insurer.

    Likewise, Section 626.9521 provides:

    No person shall engage in this state in any trade practice which is defined in this part as, or determined pursuant to

    s. 626.9561 [sic] 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 s. 627.381, Florida Statutes.

    (Section 627.381) authorizes the department to, inter alia, impose an administrative fine pursuant to s.

    624.4211)

30. In that regard, unfair competition is defined at Section 626.9541 as, in pari materia:

    
    

    (1)(a)(6) Knowingly making, issuing, circulating, or causing to be made, issued, or circulated, any estimate, illustration, circular, statement, sales presentation, omission, or comparison which is a misrepresentation for the purpose of inducing, or tending to induce, the lapse, forfeiture, exchange, conversion, or surrender of any insurance policy.

    (1)(b) Knowingly making, publishing, disseminating, circulating, or placing before the public, or causing, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public:

    1. In a newspaper, magazine, or other publication,

    2. In the form of a notice, circular, pamphlet, letter, or poster,

    3. Over any radio or television station, or

    4. In any other way, an advertisement, announcement, or statement containing any assertion, representation, or statement with respect to the business of insurance, which is untrue, deceptive, or misleading.

       (1)(e)1. Knowingly:

       1. Filing with any supervisory or other public official,

       2. Making, publishing, disseminating, circulating,

       3. Delivering to any person,

       4. Placing before the public,

       5. Causing, directly or indirectly, to be made, published, disseminated, circulated, delivered to any person, or placed before the public, any false material statement.

    
    

31. Finally, Rule 4-46.003(2), F.A.C., also makes it an unfair or deceptive practice to:

    
    

    Make any representation or incomplete comparison by the insurance company or agent, by commission or omission, for the purpose of inducing or which would reasonably be expected to induce Medicare eligible persons to purchase, amend, lapse, forfeit, non-renew, change, duplicate coverage already in force, replace a policy that is only technically at variance with the policy or policies

    being offered, or otherwise surrender existing insurance.

    
    

32. With regard to the allegations relating to both parties, the evidence clearly indicates that the policies sold to both the Laws and Ms. Hendryx by the Respondent, assisted by Mr. Chappuis, were, in many particulars, largely duplicative of their existing coverage. This constitutes a clear violation of Rule 4- 46.003(2), F.A.C., and as such, is a violation of Section 626.621(3). When considered along with Respondent's representation or acquiescence in Mr. Chappuis' representation of dental, vision and hearing coverage when he knew Mrs. Laws already wore a hearing aid, it also constituted willful misrepresentation or deception in violation of Section 626.611(5) and an unfair or deceptive practice under Sections 626.9541(1)(b) and (1)(e)1.

    
    

33. It also casts doubt on his fitness and trustworthiness to engage in the business of insurance under Section 626.611(7). However, because both clients gave no indication of coercion or other pressure being applied in their relationship, because Mr. Chappuis indicated he had no knowledge or any prior or ongoing misconduct and placed much faith in Respondent's abilities, and because there is no evidence or prior disciplinary action against the Respondent, the doubt here is resolved in his favor. By the same token, the evidence of Respondent's lack of knowledge or competence, or the more egregious offenses of fraud or dishonest practice, outlined in subsections (8) and (9) of this section, have not been proven as well.

    
    

34. On the other hand, Respondent's conduct has been shown to be a clear violation of the proscription against "twisting", and, at least minimally, constitutes the use of unfair or deceptive-methods of competition. However, the evidence does not show that, except for the resultant payment of unnecessary premiums for coverage duplicative of other coverage already in effect, Respondent's activities resulted in any loss or injury to his clients or the public. They got the coverage they paid for, (and could be paid under both policies), albeit that coverage might not have been needed or appropriate under industry standards.

    
    

35. What is also clear is that Respondent unfairly and deceptively compared his company's policy with that of his competition, resulting in some replacement, which is also a violation of the aforementioned departmental rule.

    
    

36. Having concluded that Respondent's actions constituted at least some violations of the pertinent statutes and rule, the question next for resolution is the determination of an appropriate disciplinary action. At least some of Respondent's violations fall under the purview of Section 626.611, which calls for compulsory suspension or revocation. Others fall under the purview of Section 626.621, for which the imposition of suspension or revocation is within the discretion of the department.

    
    

37. For the reasons already cited, that is: the lack of aggravating circumstances surrounding the commission of the offenses, the fact that neither client suffered any appreciable loss due to Respondent's misconduct, and the lack of any evidence of prior misconduct, it is concluded that an actual suspension or revocation should not be implemented. However, it is imperative that sufficient action be taken to impress upon the Respondent the requirement to deal with his clients in an absolutely forthright and open manner so as to provide to them an opportunity to make a well informed decision regarding their bona fide insurance needs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Respondent's license as a health insurance agent in Florida be suspended for a period of six months and that he pay an administrative fine of $5,000.00, but that in lieu of implementation of the suspension, Respondent be placed on probation for a period of two years under such terms and conditions as may be specified by the Department of Insurance.

RECOMMENDED this 6th day of April, 1990, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 April, 1990.

APPENDIX TO RECOMMENDED ORDER

The following constituted my specific rulings pursuant to S120.59(2), Florida Statutes, on all of the proposed Findings of

Fact submitted by the parties to this case. FOR THE PETITIONER

1. - 3. Accepted and incorporated herein.

4. & 5. Accepted and incorporated herein.

6. & 7. Accepted and incorporated herein.

8. - 10. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

FOR THE RESPONDENT

A1. - A5. Accepted and incorporated herein.

A6. & A7. Rejected as contra to the weight of the evidence. B1. Accepted and incorporated herein.

B2. First sentence accepted and incorporated herein.

Second sentence rejected as contra to the evidence.

B3. Accepted and incorporated herein.

B4. Accepted and incorporated herein except for the last sentence which is rejected.

BS. Not a Finding of Fact.

COPIES FURNISHED:

James A. Bossart, Esquire Department of Insurance and

Treasurer

412 Larson Building Tallahassee, Florida 32399-0300

Kelli Hanley Crabb, Esquire Battaglia, Ross, Hastings

and Dicus

980 Tyrone Blvd.

P.O. Box 41100

St. Petersburg, Florida 33743

Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Don Dowdell General Counsel

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Docket for Case No: 89-006414

Orders for Case No: 89-006414