STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4183

)

JOSEPH DANIEL CORONA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Sarasota, Florida on October 5, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

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

Division of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

For the Respondent: Was neither present nor represented

STATEMENT OF THE ISSUES

The issue for consideration herein was whether the Respondent's license as a life and health agent in the State of Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

By Administrative Complaint dated June 7, 1990 and filed the same day, Tom Gallagher, Treasurer and Insurance Commissioner for the State of Florida, alleged that the Respondent had violated Several provisions of the Florida Insurance Code when he accepted a check in payment of a premium on life insurance for a client and thereafter failed to forward either the check or the application to the company scheduled to issue the policy.

By Answer to the Administrative Complaint and request for a hearing dated June 29, 1990, Counsel for Respondent admitted the jurisdictional allegations contained in the Complaint, but denied the substantive portions thereof and requested a formal hearing. Thereafter, by letter dated July 2, 1990, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and after response by the parties to the Initial Order, by Notice of Hearing dated July 27, 1990, the undersigned set

the case for hearing in Sarasota on October 5, 1990, at which time it was held as scheduled.

At the hearing, Respondent failed to appear though his counsel had been notified of the time, date, and place of the hearing. It appears that counsel for Respondent withdrew from representation approximately September 4, 1990, and notified Respondent of this fact at the time. Counsel for Petitioner indicated that several efforts were made to notify Mr. Corona of the time and place of the hearing and of a deposition that was taken in this case in Boynton Beach on October 1, 1990. Direct personal contact with Mr. Corona was not made, however, since he was never available to receive the direct phone calls, and messages left for him went unanswered. It is, therefore, concluded that Mr. Corona was given adequate notice of the hearing by his counsel, and adequate efforts were made by the Department to contact him. Therefore, his failure to appear at the scheduled time and place of hearing does not prevent the Department from proceeding.

At the hearing, Petitioner presented, by deposition, the testimony of Catherine E. Volkman, the Respondent's client in issue here, and the testimony of Nathaniel M. Fogler, Regional Manager for Old Southern Life Insurance Company, the company with whom the insurance was to be written. Petitioner also introduced Petitioner's Exhibits 1 through 3. Respondent not being present or represented, no evidence by testimony or exhibit was introduced on his behalf.

A transcript was furnished but neither party submitted Proposed Findings of Fact. However, Counsel for Petitioner submitted Petitioner's Recommendation as to penalty.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, the Respondent, Joseph Daniel Corona, was licensed and eligible for licensure, in the State of Florida as a life and health insurance agent. The Department of Insurance and Treasurer is the state agency charged with the responsibility for the regulation and licensure of insurance agents in this state.

   
   

2. On or about August 28, 1989, Respondent, who had previously been introduced to Ms. Catherine E. Volkman of Boynton Beach, Florida by her sister, and had sold her health and accident insurance for several years, called her and told her that the cost of her policy for the coming year was going to increase considerably. When she advised him she was unable to pay the proposed increased premium, he indicated that he could get her a new policy at a substantially lower price.

   
   

3. As a result, on August 28, 1989, she wrote and mailed him a check in the amount of $1,150.00, payable to Old Southern Life, to cover the cost of two years of premiums on that policy. Several days after she mailed it, he called her and asked her if she had sent it. She assured him she had..

   
   

4. Nonetheless, she did not receive a policy from the company, and toward the end of October, 1989, after numerous phone calls to the Respondent up through the early part of October, she ultimately contacted the Department of Insurance in Tallahassee, where she was advised that they would investigate. She was also advised to contact the company with whom the policy was to be written, and in October, 1989, she did so, speaking with Mr. Nathaniel Fogler, the Regional Manager in the St. Petersburg office.

5. When Ms. Volkman called, Mr. Fogler searched the company records and found no indication that an application had ever been forwarded on her behalf. When he called the Respondent to inquire, Respondent indicated that he had not forwarded it. At this point, Fogler advised Respondent to refund Ms. Volkman's money to her, and also told him that the matter would be referred to the Department.

   
   

6. Company instructions call for all policy applications to be forwarded to the regional office within five days of receipt by the agent, and it is Mr. Fogler's practice not to accept any applications that are not received in his office within ten days of the date it was filled out and signed.

   
   

7. Once Mr. Fogler advised Respondent to refund Ms. Volkman's money, Mr. Corona purchased a cashier's check for $1,150.00 on the Southeast Bank in Tampa, dated October 24, 1989, which he forwarded to Ms. Volkman. This check was sent out just slightly under two months from the time Respondent received the premium payment from Ms. Volkman in August.

   
   

8. Subsequent to receipt of this information from Ms. Volkman, and his conversation with the Respondent, Mr. Fogler terminated the agency contract which had existed between Respondent and Old Southern Life Insurance Company. The Respondent's actions in this case were the sole reason for Respondent's termination. Mr. Fogler had never spoken with Respondent previously and has no knowledge of any other misconduct on his part. No such evidence was presented.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. In the Administrative Complaint, Petitioner has alleged, in a litany of charges, that Respondent has violated the provisions of Sections 626.561, 626.611, 626.621, 626.9521, and 626.9541, Florida Statutes. Specifically, he is alleged to have:

    
    

    1. failed to pay over to the insurer funds received during transactions under his license (626.561(1));

    2. used his license to circumvent provisions of the code (626.611(4));

    3. demonstrated a lack of fitness or trustworthiness to engage in the insurance business (626.611(7));

    4. been guilty of fraud or dishonest practices under his license (A 26,611(9));

    5. been guilty Of the unlawful withholding of money belonging to insurers or insureds received in the conduct of business under the license (626.611(10));

    6. willfully violated any provision of the code (626.611(13) and 626.621(2));

    7. failed, upon demand, to pay over any insurer he represented money coming into his hands which belonged to the insurer (626.621(4));

    8. engaged in deceptive acts or practices and shown himself to be detrimental to the public interest (626.621(6) and 626.9521);

    9. knowingly made statements which misrepresented the terms or benefits of a policy (626.9541(1)(a)1); and

    10. knowingly made misrepresentations for the purpose of inducing the exchange of an insurance policy (626.9541(1)(a)6).

        
        

11. The burden of proof in this case is upon the Department of Insurance to establish, by clear and convincing evidence, that the allegations in the Administrative complaint are true, Ferris v. Turlington, 510 So.2d 210 (Fla. 1987). The uncontroverted evidence presented at the hearing clearly establishes that the Respondent failed to pay over to Old Southern Life Insurance Company the premium he had received from Ms. Volkman in payment for the insurance he had sold her, in violation of Sections 626.561(1) and 626.611(10), Florida Statutes. In the course of this misconduct, he used his license to circumvent the requirements of the code, (626.611(4) 626.611(13), and 626.621(2), Florida Statutes.

    
    

12. His failure to promptly pay over to the company the money he had received from Ms. Volkman was a dishonest practice, (626.611(9), Florida Statutes, and a deceptive act in the practice of insurance, (626.9521), Florida Statutes, by which he demonstrated a lack of fitness and trustworthiness to engage in the insurance business, (626.611(7), Florida Statutes, and himself as detrimental to the public interest, (626.621(6), Florida Statutes.

    
    

13. However, the evidence of record fails to show that he failed, upon demand, to pay over any money owed to his insurer, (626.621(4), Florida Statutes. The evidence also failed to establish that he knowingly made any misrepresentations regarding the policy he sold Ms. Volkman, (626.9541(1)(a)1), Florida Statutes, or that he made any misstatements or misrepresentations to Ms. Volkman to induce her to change her policy, (626.9541(1) (a) 6), Florida Statutes.

    
    

14. The Department recommends that the Respondent's license as an life and health insurance agent be suspended for one year. In light of the fact that Respondent appears to have made immediate restitution to the client upon demand and that there is no evidence of other misconduct, this recommendation appears to be appropriate.

RECOMMENDATION

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

RECOMMENDED that a Final Order be issued in this case suspending the Respondent, Joseph Daniel Corona's, license as a life and health insurance agent in Florida for a period of one year.

RECOMMENDED this 13th day of November, 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 13th day of November, 1990.

COPIES FURNISHED:

Willis F. Melvin, Jr., Esquire Division of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

Joseph Daniel Corona 2843 North Wood Way Sarasota, Florida 34234

Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Don Dowdell General Counsel

Department of Insurance The Capitol, Plaza Level

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 consult with the agency that will issue the final order in this case concerning their 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.

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AGENCY FINAL ORDER

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OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE

IN THE MATTER OF:

DOAH CASE NO: 90-4183

JOSEPH DANIEL CORONA CASE NO: 90-L-241WFN

/

FINAL ORDER

THIS CAUSE came before the undersigned Treasurer of the State of Florida, acting in his capacity as Insurance Commissioner, for consideration and final agency action.

On June 7, 1990, an Administrative Complaint was filed charging Respondent with various violations of the Insurance Code. The Respondent timely filed a request for a formal proceeding pursuant to Section 120.57(1), Florida Statutes. Pursuant to notice, the matter was heard before Arnold H. Pollock, Hearing Officer, Division of Administrative Hearings, on October 5, 1990, in Sarasota, Florida.

After consideration of the evidence, argument and testimony presented at hearing, and subsequent written submissions by the parties, the hearing officer issued his Recommended Order. (Attached as Exhibit A). The hearing officer recommended that Respondent's license as a life and health agent be suspended for one (1) year. Neither party filed exceptions to the Recommended Order.

Upon careful consideration of the record, the submissions of the parties and being otherwise advised in the premises, it is

ORDERED:

1. The Findings of Fact of the hearing officer are adopted in full as the Department's Findings of Fact.

   
   

2. The Conclusions of Law of the hearing officer are adopted in full as the Department's Conclusions of Law except all licenses held by Respondent, and his eligibility for licensure shall be suspended for one (l) year pursuant to Sections 626.641 and 626.651(1), Florida Statutes, whereas the hearing officer recommended such suspension only as to Respondent's license as a life and health insurance agent.

   
   

3. That all licenses held by Respondent shall be suspended for one (1) year is the appropriate disposition of this case.

ACCORDINGLY, all licenses and eligibility for licensure held by JOSEPH DANIEL CORONA are hereby suspended for one year.

Any party to these proceedings adversely affected by this Order is entitled

-to seek review of this Order pursuant to section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be

instituted by filing a Notice of Appeal with the General Counsel, acting as the agency clerk, at 412 Larson Building, Tallahassee, Florida 32399- 0300, and a copy of the same and the filing fee with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

DONE and ORDERED this 20th day of December, 1990.

Tom Gallagher Treasurer and Insurance Commissioner

COPIES FURNISHED:

Arnold H. Pollock, Esquire Hearing Officer

Department of Insurance Division of Legal Services

412 Larson Building Tallahassee, Fl. 32399-0300

Joseph Daniel Corona 2843 North Wood Way Sarasota, Florida 34234

Clifford Klaus, Esquire 1432 First Street, Suite A Sarasota, Florida 34236

Willis F. Nelvin, Jr., Esquire Division of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

Docket for Case No: 90-004183

Orders for Case No: 90-004183