STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE ) AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1270

) LAWRENCE DAVID LANGILLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on May 21, 1992, in Clearwater, Florida.

APPEARANCES

For Petitioner: Joseph D. Mandt, Esquire

Department of Insurance

412 Larson Building

Tallahassee, Florida 32399-0300

For Respondent: Louis Kwall, Esquire

Gross and Kwall, P.A.

133 North Fort Harrison Avenue Clearwater, Florida 34615

STATEMENT OF THE ISSUES

Whether Respondent's licensure as a life insurance agent, life and health insurance agent should be suspended, revoked or otherwise disciplined on the basis of the multiple violations of Chapter 626, Florida Statutes, as set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

In an Administrative Complaint dated December 17, 1991, the Petitioner, Department of Insurance and Treasurer (the Department), charged Respondent, Lawrence David Langille (Langille), with a series of violations of Chapter 626, Florida Statutes. Essentially, Respondent Langille is charged with making false and misleading statements to a number of named Medicare enrollees regarding the relationship between Medicare and the Humana Gold Plus HMO Program he sold to them between 1989 and 1990. The Department seeks to discipline Respondent's licenses as a life insurance agent, life and health insurance agent and as a health insurance agent as a result of the alleged violations.

The Respondent denies that he committed any wrongdoing during his dealings with these enrollees. A formal hearing was requested to resolve the factual

disputes surrounding these particular insurance transactions and the case was referred to the Division of Administrative Hearings on February 24, 1992.

Final hearing was originally scheduled for April 13, 1992, in Tampa, Florida. At the request of the Department, the case was continued over objection until May 21, 1992. Hearing was rescheduled to Clearwater, Florida, for the convenience of elderly witnesses called by the Department.

During the hearing, the Department dismissed Counts I, III and IV of the Administrative with prejudice as witnesses involved in these counts were not present. The case proceeded on the two remaining counts. Three witnesses were called by the Department, and one exhibit was filed. The Respondent testified in his own behalf and offered five exhibits. The joint stipulation as to all licensure matters was accepted by the Hearing Officer, along with the agreement that the Humana documents submitted by Respondent are records which are kept in the regular course of business. All of the exhibits were admitted into evidence.

A transcript of the hearing was not ordered. Proposed Recommended Orders were timely submitted by both parties. Rulings on the proposed findings of fact are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with licensing insurance agents of all types, regulating licensure statutes, and enforcing the practice standards of licensed agents within the powers granted by the Legislature in Chapter 626, Florida Statutes.

   
   

2. Respondent Langille is licensed as an insurance agent in the following areas: life insurance, life and health insurance and health insurance.

   
   

3. At all times material to these proceedings, the Respondent was an appointed health agent for Humana Health Insurance Company of Florida, Inc., and for Humana Medical Plan, Inc.

   
   

4. Alice I. Lemmer and Theodore W. Lemmer first became interested in the Humana Gold Plus HMO Program when they observed a large number of cars at a Humana HMO location near their home during shopping excursions.

   
   

5. Mr. and Mrs. Lemmer contacted Humana regarding their interest in the insurance program. The company sent the Respondent to their home to discuss the program with them.

   
   

6. On October 19, 1989, the Respondent went to the Lemmer residence and explained the benefits of the program. Mr. and Mrs. Lemmer were very receptive to the plan as it would cost them less than their current supplemental insurance with Blue Cross/Blue Shield.

   
   

7. In spite of the explanation given by Respondent Langille regarding the types of health care services provided and the Lemmers' rights and responsibilities under the plan, the Lemmers believed at all times that they were signing up for a supplemental insurance program instead of an HMO program for seniors with Medicare-Part A and Part B benefits. They enrolled in the Humana HMO Gold Plus Program on October 19, 1989.

8. Respondent Langille did not have an opportunity to know that the Lemmers misunderstood what type of insurance they were buying because they acted as if they understood his explanations. They signed all of the forms that stated they had read and understood their rights and responsibilities under the plan.

   
   

9. During their enrollment, the Lemmers had a difference of opinion with a Humana HMO physician regarding what constituted an emergency when Mrs. Lemmer received unauthorized care outside the Humana network system. In addition, they found they preferred their own doctors with whom they had established long term professional relationships prior to their HMO enrollment. They also preferred to have prescriptions filled at Eckerd Drugs on their own terms instead of those imposed by the HMO at their neighborhood unit.

   
   

10. On September 17, 1990, Theodore Lemmer completed a Gold Plus Plan Disenrollment Form stating he wished to disenroll in order to use his own doctors.

    
    

11. There were no false statements made by Respondent to the Lemmer's during his solicitation regarding medical coverage in the Gold Plus HMO Plan.

    As a result, there was no reliance by the Lemmers upon such statements. If they regarded the plan as a supplemental insurance as opposed to an HMO program, it was because they were focused on the low price of the plan, their past experiences with supplemental medical insurance while on Medicare for twenty years and their lack of experience with HMO programs.

    
    

12. In August of 1989, the Respondent contacted Rose Bombaci about possible enrollment into the Humana Gold Plus Plan. This contact was initiated by a lead he received from Humana in a list of potential applicants.

    
    

13. Ms. Bombaci signed up for the plan, but promptly cancelled within twenty four hours. She explained to the Respondent that she wanted to "hold up" on any insurance changes at that time. The Respondent tore up the application and did not submit it to Humana in Miami.

    
    

14. A few months later, Ms. Bombaci initiated a second contact with the Respondent. She expressed interest in being enrolled in the Humana Gold Plus Plan effective February 1, 1990, because that was when her premium expense would have increased with Blue Cross/Blue Shield if she had remained with that supplemental medical insurance company. An enrollment form was completed and her signature was witnessed by Respondent on November 28, 1989.

    
    

15. There was no premium due from the applicant to complete enrollment as Ms. Bombaci selected the "zero" value option under the plan. The Respondent represented the HMO plan would not become effective until February 1990.

    
    

16. The enrollment form was received by Humana's Miami office on December 5, 1989.

    
    

17. After the enrollment form was sent to Humana, the Respondent had four additional meetings with Ms. Bombaci. These occurred over four successive workdays, December 7-8, 1989 and December 11-12, 1989.

    
    

18. These additional meetings occurred at Ms. Bombaci's request so she could learn more about the HMO Plan which was scheduled to begin February 1, 1990.

19. After Christmas, probably early January 1990, Ms. Bombaci called the Respondent and told him to cancel her enrollment. He explained that she would have to go through the formal disenrollment process and that he was unable to do it on her behalf. She insisted he had been able to stop her enrollment before and could do it again. He denied this was possible and explained the various avenues she could take to disenroll from the plan.

    
    

20. The Respondent did not make false and misleading statements to Ms. Bombaci about the enrollment documents. He followed her instructions as given in November 1989. As her agent, he made sure enrollment would not begin until February 1990.

    
    

21. Ms. Bombaci presumed if she told the Respondent she did not want her enrollment to become effective until February 1990, the enrollment process would be in limbo prior to that date. This was a false assumption without any basis in fact. It was never communicated to Respondent that she did not want to actually begin the enrollment process without a second, final consent until shortly before February 1, 1990.

    
    

22. At all times prior to Ms. Bombaci's request for the cancellation of her enrollment to the Respondent, he reasonably believed that she had consented to the enrollment effective February 1990.

    
    

23. Ms. Bombaci did not initiate the disenrollment process through the avenues offered by Humana until March 24, 1990.

    
    

24. The Respondent was not responsible for the delay in the disenrollment as he had properly advised her of the process when she informed him of her intent to withdraw from the plan.

    
    

25. Based upon the complaints initiated by Mr. and Mrs. Lemmer and Ms. Bombaci prior to the Department's filing of the Administrative Complaint, the agency had reason to believe that Respondent had violated various provisions of the Florida Insurance Code by engaging in deceptive acts or practices involving the business of insurance. A formal administrative hearing was necessary to resolve the material dispute of facts regarding Respondent's conduct during these two insurance sales.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter, pursuant to Section 120.57(1), Florida Statutes.

    
    

27. In a proceeding to discipline a professional license, the Petitioner has the burden of proof, and must prove by clear and convincing evidence that Respondent committed the violations set forth in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

28. The proof adduced at hearing on the remaining Counts II and V was contrary to the allegations set forth in the Administrative Complaint. The charge that Respondent engaged in deceptive acts or practices when he enrolled the named individuals in the Humana Gold Plus HMO Program was not sustained once the complaining individuals involved in the enrollment were subjected to cross examination. It was revealed at hearing that Mr. and Mrs. Lemmer did not understand the HMO concept because of their preconceived notion of what they were purchasing. Ms. Bombaci also presumed certain facts in her decision to sign the application form. The Respondent had no way of knowing that these

enrollees were acting upon presuppositions as opposed to the information he was presenting during the enrollment process. As a result, none of the enrollees were victims of deceptive acts or practices committed by Respondent.

Accordingly, the charges that Respondent Langille violated various provisions of Chapter 626, Florida Statutes, by engaging in deceptive acts or practices, should be dismissed.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Respondent be found not guilty of Counts II and V set forth in the Administrative Complaint.

RECOMMENDED this 10th day of July, 1992, in Tallahassee, Florida.

VERONICA E. DONNELLY,

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1270

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See HO #2.

2. Accepted. See HO #7.

3. Rejected. Contrary to fact. See HO #7.

4. Accept this was his testimony. See HO #7.

5. Rejected. Incorrect date. See HO #14.

6. Accepted. See HO #12 and #14.

7. Rejected. Incorrect date. See HO #7.

8. Rejected. Contrary to fact. See HO #17.

9. Rejected. Misstatement of fact. See HO #14-#19.

10. Rejected. Misstatement of fact. See HO #18.

11. Rejected. Contrary to fact and law. Respondent had apparent consent. See HO #14-#15, and #19.

Respondent's proposed findings of fact are addressed as follows:

1. Accepted. See HO #2.

2. Accepted. See HO #3.

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

7. Accepted.

8. Accepted.

9. Accepted.

10. Accepted. See HO #12-#13.

11. Accepted. See HO #18.

12. Accepted.

13. Accepted.

14. Rejected. Contrary to fact. See HO #19-#20.

15. Accepted.

16. Rejected. Irrelevant.

COPIES FURNISHED:

Don Dowdell, General Counsel Department of Insurance

200 East Gaines Street

412 Larson Building Tallahassee, FL 32399-0300

Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, FL 32399-0300

Joseph D. Mandt, Esquire Department of Insurance

412 Larson Building Tallahassee, FL 32399-0300

Louis Kwall, Esquire Gross and Kwall, P.A.

133 North Fort Harrison Avenue Clearwater, FL 34615

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. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY 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.

Docket for Case No: 92-001270

Orders for Case No: 92-001270