Staros, Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: James R. Hirschfeld, pro se
The Estate of John W. Hirschfeld 1591 Southeast 163rd Court Morriston, Florida 32668-2379
For Respondent: Sonia P. Mathews, Esquire
The issue presented for decision in this case is whether Petitioner’s claim of $10,000 in life insurance benefits should
be paid or denied.
By letter dated June 28, 2007, the Department of Management Services, Division of State Group Insurance (the "Department") notified Petitioner, James R. Hirschfeld, Personal Representative of the Estate of John W. Hirschfeld, that his claim for $10,000 in life insurance benefits for John W. Hirschfeld was denied. The Department’s letter stated in part, “you have requested that his life insurance benefit be changed from $2,500 to $10,000 because your father was not informed of his options at open enrollment, his medical condition prevented him from understanding what was transpiring, and, while attending to his affairs, you received no information on his behalf.”
Petitioner requested a formal administrative hearing to contest the denial of benefits. On August 28, 2007, the Department forwarded the case to the Division of Administrative Hearings for assignment of an Administrative Law Judge. The case was scheduled for hearing on October 23, 2007, and took place as scheduled. Prior to the hearing, Respondent filed a
Motion to Present Deposition Testimony After Hearing, which was granted.
At hearing, James Hirschfeld testified on behalf of his father’s estate. Petitioner did not introduce any exhibits. Respondent presented the testimony of Sandy Wade, James West, and Janice Lowe. Respondent’s Exhibits 1 through 9 were admitted into evidence.
The deposition testimony of Terry L. Conway was filed by Respondent on November 29, 2007.
The hearing was not transcribed. Respondent timely filed a proposed recommended order, which has been considered in the preparation of this Recommended Order. Petitioner did not file a post-hearing written submission.
The State of Florida Group Insurance Program (the Program) is a benefit available to State of Florida officers, employees, and retirees.
At the time of his death, John W. Hirschfeld was a retired state employee with life insurance coverage through the Program. Mr. Hirschfeld died on January 6, 2007.
James R. Hirschfeld is the Personal Representative of the estate of John W. Hirschfeld, his father. Prior to John Hirschfeld’s death, James Hirschfeld held a Power of Attorney
for John Hirschfeld, although he did not notify DSGI of the Power of Attorney until his father’s death.
Convergys Corporation (Convergys) is a private entity that administers the State of Florida human resources and personnel system. At all times material to this proceeding, Convergys has been responsible for providing notice to Program participants regarding the availability of benefits and changes.
Sandi Wade is the benefits administrator for the Division of State Group Insurance (DSGI). According to
Ms. Wade, DSGI supplemented the cost of retiree life insurance in the past, thereby reducing the premium charged to retirees.
This supplement was reduced by the Florida Legislature effective January 1, 2007. Accordingly, premiums paid by retirees had to be increased due to that reduction in funds. This resulted in a change in the life insurance options available to retired employees.
By letter dated July 31, 2006, DSGI informed retired state employees of this change in a letter which read in pertinent part:
Dear Retiree:
RE: State of Florida Life Insurance
The upcoming annual open enrollment period will provide you with three (3) options regarding your life insurance coverage. You should carefully examine all options and the
information provided in your Open Enrollment packet, which will be mailed prior to Open
Enrollment, to decide which choice best suits your unique circumstances.
Effective January 1, 2007, the three (3) life insurance options available will be:
A $2,500 benefit for a monthly premium of
$4.20
A $10,000 benefit for a monthly premium of $35.79
Terminate life insurance coverage (precludes participants from re-enrolling for the product in the future.)
Consistent with our practice in previous years, should you not participate in the Open Enrollment process, or make no change to your life insurance election, you will continue to be enrolled with retiree life insurance coverage. Your default election will be the $2,500 benefit, with its associated premium.
If there is a desire to modify your open enrollment life insurance election, requests for changes to your life insurance coverage enrollment will be accepted through Friday, January 19, 2007.
* * *
This notice in advance of open enrollment is being provided in order that you will have additional time to consider all options available to you. Life insurance choices are important decisions.
DSGI contracted with Pitney Bowes Management Services to mail the July 31, 2006, letter to 29,392 retired state employees. DSGI provided Pitney Bowes with a computer disk
containing the names and addresses of the retirees to whom the letter was to be sent.
The disk included the name John W. Hirschfeld at 2509
W. Taffy Lane, Leesburg, Florida 34748-6421.
Using a software program, the names of retirees were electronically printed on envelopes directly from the disk provided to Pitney Bowes by DSGI.
As a means of quality control, Pitney Bowes utilized a procedure which periodically stopped the printing process and counted the number of envelopes printed as compared to the number on the list of the last name printed.
Pitney Bowes batched and delivered the envelopes containing the letter dated July 31, 2006, to the post office where the postage was applied using the mailing permit of the Division.
The return address on the envelopes was the address of DSGI.
The letters were mailed by Pitney Bowes on August 6, 2007.
Janice Lowe is employed by DSGI and has been for 28 years. Her duties include assisting retirees with insurance issues. According to Ms. Lowe, DSGI received numerous returned letters from Pitney Bowes. With each returned letter, DSGI accessed the Florida Retirement System (FRS) data base to
determine whether there was another address for the retiree to whom the returned letter was addressed. Each time a name was accessed on the FRS system, DSGI printed that Retirement Benefit Information Screen and inserted it into a three-ring binder.
The letter was re-mailed to the retiree when the FRS data provided an address which was different from that used by DSGI in the initial mailing.
If the FRS data base did not provide a different address, or if the letter was returned a second time, DSGI personnel attempted to make telephone contact with the retiree and so noted in a log and/or on the returned envelope.
At hearing, DSGI produced three voluminous binders containing the Retirement Benefit Information Screen for each retiree whose letter had been returned. According to Ms. Lowe, the binders did not contain a Retirement Benefit Information Screen for John W. Hirschfeld indicating that the screen had not been pulled-up because the letter to Mr. Hirschfeld had not been returned.
Each year, DSGI holds an open enrollment period as required by Section 110.123(3)(h), Florida Statutes. Open enrollment is that period of time once a year, as identified by DSGI, during which participants in the state group insurance programs may change, add, or cancel participation in the insurance plans offered.
Prior to open enrollment, information is mailed to all participants regarding availability of various plans, including description of benefits. Open enrollment is generally held during October for coverage during the next year.
In preparation for open enrollment held during October 2006, Convergys mailed a package of materials to participants in the Program. Included in that package was a benefits statement that identifies the types of coverage carried by the participant.
On September 3, 2006, Convergys mailed an open enrollment package to John Hirschfeld. Under the heading “Basic Term Life,” the statement showed the coverage of $2,500 at a monthly cost of $2.40 to the participant, and $10,000 coverage at a monthly cost of $35.79 to the participant. Next to the line explaining that coverage for $2,500 has a cost to the participant of $4.20, was the symbol “**”. At the bottom of the page, the following appears: “** Indicates Current Coverage and Default Election effective 01/01/2007.” Immediately below the explanation of premium costs for the two levels of coverage was the following sentence: “If you do not make an election change, your current life insurance premium will change to $2,500.”
The 2006 Open Enrollment package for year 2007 also included a document entitled, “State Group Insurance Program- Information of Note” which reads in pertinent part:
RETIREE LIFE INSURANCE
For Plan Year 2007, those currently enrolled with retiree life insurance may elect to retain the current $4.20 premium for a benefit of $2,500, retain the current benefit of $10,000 for a premium of $35.79, or cancel coverage. If no change is made during open enrollment, participation will continue at the $4.20 premium level.
Convergys mailed the 2006 open enrollment package to John W. Hirschfeld at 2509 W. Taffy Lane, Leesburg, Florida 34748-6421.
John Hirschfeld became very ill in November 2005.
After surgery in April 2006, a nurse was hired to go to John Hirschfeld’s home to assist him. James Hirschfeld took over his father’s affairs, including checking his father’s mail every two days. John Hirschfeld did maintain a key to the mailbox that was located in a bank of mailboxes, although he was in poor physical condition and most likely could not check his mail. It is unknown whether his nurse ever checked his mailbox.
James Hirschfeld never saw any documents from the state regarding the change in life insurance options either when he picked up his father’s mail or after his father died when he cleaned out his father’s home to sell it.
Prior to the benefits change effective January 1, 2007, John Hirschfeld paid a monthly premium of $4.20 for
$10,000 in life insurance coverage. Had James Hirschfeld known,
he would have submitted the necessary changes and paid the new higher premium on behalf of his father to maintain the $10,000 life insurance coverage. He is confident that had his father known of the change, he would have elected to pay the increased premium because they had discussed his father’s life insurance coverage of $10,000.
At hearing, James Hirschfeld acknowledged that he is not disputing that the state sent the letter to his father. He asserts that the extra $7,500 of life insurance is justified because he or his father would have changed the coverage had either of them known.
The preponderance of the evidence establishes that two notices of the change in life insurance options for state retirees, the July 31, 2006, letter and the open enrollment packet, were sent to John Hirschfeld at his actual address, and that the notices were not returned.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.
The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation v. J.W.C. Corporation,
Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department
of health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Accordingly, Petitioner bears the burden of proof in this proceeding by a preponderance of the evidence.
§ 120.57(1)(j), Fla. Stat.
It is presumed that mail properly addressed, stamped and mailed was received by the addressee. Berwick v. Prudential Property and Cas. Ins. Co., 436 So. 2d 239 (Fla. 3d DCA 1983). Proof of mailing of a document to the correct address creates a presumption that the item mailed was received. W.T. Holding, Inc., v. Agency for Health Care Administration, 682 So. 2d 1224 (Fla. 4th DCA 1996). This presumption is a rebuttable one.
Id.; Scutieri v. Miller, 584 So. 2d 897, 900 (Fla. 3rd DCA 1991). A denial of receipt does not automatically overcome the presumption of receipt but creates a question of fact for the trier of fact. W.T. Holding v. Agency for Health Care Administration, supra.
The Court in Berwick, supra at 240, discussed the nature of such a presumption in assessing the quality of proof:
Unless otherwise provided by statute, a presumption established primarily to facilitate the determination of an action, as here, rather than to implement public policy is a rebuttable ‘presumption affecting the burden of producing evidence,’ see Section 90.303, Fla. Stat. (1981), a ‘bursting bubble’ presumption (citation omitted). Such a presumption requires the trier of fact to assume the existence of the presumed fact unless credible evidence
sufficient to sustain a finding of the non- existence of the presumed fact is introduced, in which event the bubble bursts and the existence of the fact is determined without regard to the presumption.
Applying the analysis supplied by case law, the evidence presented by Petitioner is not sufficient to rebut the presumption established by Respondent. Respondent's evidence established that DSGI through its contract providers correctly addressed the notices, affixed postage and mailed the notices. The evidence also established that DSGI personnel meticulously tracked all July 31, 2006, letters that were returned to DSGI, and that the letter mailed to John Hirschfeld was not returned. The end result is harsh under the circumstances of this case. In particular, John Hirschfeld died just six days after the effective date of this change. However, the undersigned is compelled to follow the applicable case law and does not have jurisdiction to grant equitable relief.
