Findings Of Fact In January 1995, Petitioner, Dubois Farms, filed a complaint with the Department. The complaint alleged that Respondent, Mo-Bo, and Respondent, General Accident, was indebted to Petitioner in the amount of $800.00 for 100 cartons of eggplant purchased from Petitioner. The Department gave notice to the Respondents that the complaint had been filed. On or about February 24, 1995, Mo-Bo responded to the complaint, denied the allegations, and requested a hearing. At hearing, Petitioner offered and had admitted into evidence Exhibits numbered 1-5, subject to Respondent General Accident's hearsay objection. No other proof was offered. Since Petitioner's proof was hearsay, and not subject to any exceptions to the hearsay rule, it cannot support a finding of fact that Mo-Bo is indebted to Petitioner as claimed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the complaint filed by Dubois Farms, Inc., against Mo-Bo Enterprises, Inc., and its surety, General Accident Insurance Company of America. DONE and ORDERED this 30th day of August, 1995, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 30th day of August, 1995. COPIES FURNISHED: Mike D. Bess, Qualified Representative Marketing Management Services Florida Fruit and Vegetable Association P.O. Box 140155 Orlando, Florida 32814-015 Zoe Krikorian, Esquire Brad A. Thomas, Esquire General Accident Insurance Company Brickell Centre - Suite 900 799 Brickell Avenue Miami, Florida 33131-2805 Don Bieda, Esquire Legal Department General Accident Insurance Company 436 Walnut Street Philadelphia, Pennsylvania 19105-1109 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Mo-Bo Enterprises, Inc. P.O. Box 1899 Pompano Beach, Florida 33061 Charles Barnard, Esquire 200 SE 6th Street, Suite 205 Fort Lauderdale, Florida 33301 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue for determination is whether Respondent made or is accountable for misrepresentations that were made in the course of sales of automobile personal injury protection insurance policies to various consumers; thereby committing violations of Chapter 626, Florida Statutes, sufficient to subject Respondent's licensure as general lines insurance agent to disciplinary action.
Findings Of Fact Respondent is Steven Courtney Thomas, currently licensed and eligible for licensure by Petitioner as a general lines insurance agent. Respondent has held such licensure status since December 28, 1983. At all times pertinent to these proceedings, Respondent was the president and general lines agent of record for Mr. Auto Insurance of St. Petersburg Inc., (Mr. Auto) located in St. Petersburg, Florida. On May 1, 1987, Deborah Archambeault of St. Petersburg, Florida, went to the office of Mr. Auto to purchase PIP insurance. Upon her arrival, she handed her driver's license to the salesperson, a female, who, to the best of Archambeault's recollection was named Lisa or Leslie. As a result of a previous telephone call to the agency by Archambeault regarding the type of coverage desired, little conversation ensued during this visit with the exception that Archambeault provided the name of her son when that information was requested by the sales person. Upon completion of all necessary paperwork, Archambeault received a receipt reflecting her total payment of $65. During her visit, Archambeault signed an application to Banker's Insurance Company for $10,000 PIP coverage with a $2,000 deductibility provision. She also initialed the portion of the application form indicating the deductibility selection. The application reflects the initial premium for that policy was $35. In addition, she signed a form, bearing the name of the Colonial Touring Association, Inc., which designated her son as the beneficiary of travel and accident benefits, including automobile accidental death coverage, totalling $6,000. Notably, the salesperson had no discussion with Archambeault regarding whether she wanted to purchase a membership in the Colonial Touring Association. A preprinted form containing numerous provisions was also presented to Archambeault. On that form, she affixed her signature to a form statement affirming her rejection of bodily injury and property damage liability coverage; a form statement affirming her election of the $2,000 PIP deductibility provision, which also contained language noting such election was permitted only if she had additional disability insurance; a form statement declining uninsured motorist insurance; a form statement rejecting collision coverage of her own vehicle; and a form statement attesting to the voluntary election of the motor club membership at a cost of $30. Archambeault was also required to initial the portions of the form devoted to election of the PIP deductibility in two places; the uninsured motorist coverage declination and the election of motor club membership. At the bottom of the form, she signed the preprinted certification that she had read and had the form explained to her and understood all the signed and initialled provisions. Archambeault's testimony establishes that she did not request to purchase the $30 membership in the Colonial Touring Association and did not acquire the motor club towing and accidental death benefit coverage as the result of informed consent or voluntary action. Respondent's testimony that such provisions are explained to all customers is not credited with regard to Archambeault since there is no proof that Respondent, while responsible for representations made by his business' employees, was present or dealt with Archambeault on this occasion. On January 30, 1987, Kathy Byers went to Respondent's office to purchase PIP insurance. Byers talked with a saleswoman named Lisa. Byers asked for the cheapest insurance available in order to procure a tag for her automobile. While she had no recollection of being specifically informed by the saleswoman of the necessity of joining the Colonial Touring Association, the $69 paid by her upon completion of all paperwork included a membership in the association at a cost of $30. She provided the salesperson with a name to serve as beneficiary of the association membership's life insurance benefits, although Byers was not informed that such information or touring association membership was not required in order to obtain PIP coverage. The correct premium for the PIP insurance coverage which she initially requested to purchase was only $35. The agency was closing and Byers was in a hurry to leave Mr. Auto. Before leaving, she signed and initialled, without reading, a form provided by the salesperson attesting to her rejection of bodily injury and property damage liability coverage; a statement reaffirming her election of the $2,000 PIP deductibility provision, which also contained language noting such election was permitted only if she had additional disability insurance; a statement declining uninsured motorist insurance; a statement rejecting collision coverage of her own vehicle; and a statement attesting to the voluntary election of motor club membership at a cost of $30. Byers was also required to initial the portions of the form devoted to election of the PIP deductibility in two places; initial the uninsured motorist coverage declination; initial the election of motor club membership; and finally to sign a certification that she had read and had the form explained to her and understood all the signed and initialled provisions. No discussion of the nature of the PIP insurance deductibility provisions or other health insurance was had with Byers by anyone at Mr. Auto. It is found that Byers did not request to purchase the $30 membership in the Colonial Touring Association and did not voluntarily purchase the accidental death benefit and motor club towing coverage. On August 6, 1987, James Earl Royle went to Mr. Auto to purchase automobile insurance. He stated basically that he wanted PIP coverage, and a price was quoted to him which he paid. No discussion was had with Royle regarding purchase of membership in the Colonial Touring Association or insurance deductibility amounts. Royle received a receipt for his total payment of $95 which reflected a premium payment for PIP coverage of $65. The actual premium for this coverage was $55. The receipt also reflected payment of $30 for accidental death benefit and motor club towing coverage. Royle also provided his signature and initials on Respondent's form documenting rejection of bodily injury and property liability coverage; election of a $2,000 deductibility in PIP coverage; rejection of uninsured motorist coverage; rejection of collision coverage; and election of accidental death and motor club towing benefits. Royle did not request to purchase the membership in the Colonial Touring Association; the subject was not discussed with him; and he did not voluntarily purchase the accidental death benefit and motor club towing coverage. The proof establishes that customers requesting to purchase only PIP insurance from Mr. Auto, a corporation duly organized under the laws of the State of Florida, were quoted a price for that coverage inclusive of cost of membership in the Colonial Touring Association. Further, such membership, while offering accidental death benefits, does not constitute an insurance policy.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered suspending Respondent's license and eligibility for licensure as an insurance agent for a period of one year. DONE AND ENTERED this 19th day of July, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 19th day of July, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1-21. Addressed. Respondent's Proposed Findings. Respondent's proposed findings of fact consisted of two unnumbered paragraphs. The first paragraph is addressed in substance. The second paragraph is rejected as not being supported by the weight of the evidence. COPIES FURNISHED: Robert V. Elias, Esq. Office of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Thomas F. Woods, Esq. 1709-D Mahan Drive Tallahassee, FL 32308 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol Tallahassee, FL 32399-0300 Don Dowdell, Esq. The Capitol, Plaza Level Tallahassee, FL 32399-0300
The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Earle Anthony Bennett, is now and was at all times material hereto licensed by petitioner as an insurance agent in the State of Florida. Pursuant to Chapter 626, Florida Statutes, petitioner has jurisdiction over the insurance licenses and appointments of respondent. On October 17, 1990, respondent entered into a home service agent's contract with The Independent Life and Accident Insurance Company (Independent Life). Pertinent to this case, such contract provided: Article 1. Description of General Duties The Agent agrees to canvass for insurance, to collect premiums as due on the policies assigned to the agency, to aid in the proper settlement of claims, to keep true records of the business on the books, to forward to the Company on Company forms a true account of each week of the agency, and to give full time to the business of the Company. Article 2. Collections The Agent agrees to pay over all monies collected to the District Sales Manager or to such other person as the Company may direct. No money shall be retained by the Agent out of collections for any purpose. The agent agrees that should legal proceedings be necessary to collect monies due from the Agent to the Company the Agent shall pay legal costs and a reasonable attorney's fee. * * * Article 37. Indebtedness Due Company The Company may use any commissions, vacation pay, or other compensation due the Agent to reimburse itself for any indebtedness due the Company by the Agent. In November 1991, respondent terminated his employment with Independent Life, and Independent Life notified petitioner of the cancellation of respondent's appointment as one of its insurance agents. Thereafter, on November 7, 1991, Independent Life conducted an audit of respondent's account which revealed a deficiency of $1,613.70 in insurance premiums collected by respondent and not remitted to the company. Subsequent audits in November reflected an additional deficiency of $213.62, in December an additional deficiency of $178.84, and in February 1992, an additional deficiency of $43.48. By letters of November 18, 1991, November 21, 1991, December 2, 1991, December 13, 1991, and March 18, 1992, Independent Life made demand upon respondent to satisfy the deficiencies disclosed by the audits. Such letters reflected, however, varying amounts the company claimed to be due as a consequence of newly discovered deficiencies in ongoing audits, discussed supra, as well as varying credits accorded respondent. Such correspondence lends credence to respondent's testimony that he was unsure as to the exact sum owing Independent Life, and that he had, subsequent to his termination of employment, remitted funds to the company. Respondent did concede, however, that when he terminated his employment with Independent Life, his account had a deficiency of approximately $1,400. Regarding any deficiency that may have been owing Independent Life, the proof demonstrates that respondent did, over time, satisfy all outstanding obligations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding respondent guilty of the violations set forth in the conclusions of law, and suspending his licenses and eligibility for licensure for a period of nine months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of October 1993. WILLIAM J. KENDRICK 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 22nd day of October 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3885 Petitioner's proposed findings of fact are addressed as follows: 1 & 2. To the extent supported by the proof, addressed in paragraph 1. 3. Addressed in paragraph 2. 4 & 5. Addressed in paragraph 3. 6. Addressed in paragraph 4. 7 & 8. Addressed in paragraph 5. 9 & 10. Addressed in paragraphs 6 & 7, otherwise rejected as not supported by competent proof. 11. Rejected as a conclusion of law. COPIES FURNISHED: William C. Childers, Esquire Department of Insurance 612 Larson Building Tallahassee, Florida 32399-0333 Earle Anthony Bennett 12100 North West 11th Avenue Miami, Florida 33168 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue The issue in this case is whether Respondent, Thomas Felix Diaz, has violated various provisions of the Florida Insurance Code as alleged in an Administrative Complaint dated March 26, 1992 and, if so, what disciplinary action should be imposed against his license as an insurance agent in Florida.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times relevant to this proceeding, Respondent was licensed in this state as a life insurance agent. Respondent is currently licensed as a life insurance agent, as a life and health insurance agent, and as a health insurance agent. At all times pertinent to this proceeding, Respondent was appointed to sell life insurance with Mass Indemnity and Life Insurance Company (MILICO) which has recently changed its name to Primerica Financial Services. In that capacity, all funds received by, from or on behalf of consumers, representing premiums for insurance policies, were trust funds received in a fiduciary capacity and were to be paid over to an insurer, insured, or other persons entitled thereto in the regular course of business. Sometime around March of 1991, the president of Delta Picture Frame Company ("Delta" or the "Company") of Miami decided to change the health insurance for two of his employees. The insurance was being provided at company expense. The prior policy included a small life insurance component as part of the coverage. The president of the Company contacted the MILICO agency to inquire regarding their group health policy and asked to see an agent. On or about March 18, 1991, Respondent accompanied another agent for MILICO, Nelson Barrera, to Delta's office to meet with the president of the Company. At the time of the meeting, Respondent was only licensed as a life insurance agent. He did not obtain his health and life license until approximately April 15, 1991. At the meeting, Barrera explained the coverage and price for health insurance. The president of Delta agreed to purchase the health insurance policies but never verbally expressed any interest in purchasing life insurance for his employees. In fact, he specifically rejected a proposed life and health insurance package stating that the company would only pay for health insurance. Respondent spoke separately with the employees. Applications for both life and health insurance were filled out and signed by the employees. The evidence was inconclusive as to whether life insurance was actually discussed with either of the employees. Only one of the employees testified at the hearing. She verified her signature on the application for life insurance, but she claims that she only discussed health insurance with the agents and did not knowingly apply for life insurance. The president of Delta signed the last page of the life insurance applications which authorized automatic withdrawals to pay MILICO for the life insurance policies. The circumstances surrounding the execution of the life insurance applications was not clearly established by the evidence.. However, the evidence was clear that the president of the Company never intended to purchase life insurance and never knowingly agreed to authorize bank withdrawals for life insurance. The evidence established that the president of the Company clearly indicated that the Company would only pay for health insurance and he never knowingly assented to the issuance of life insurance policies for the employees at company expense. When the president of the Company noticed that the bank records reflected withdrawals payable to MILICO, he inquired further and learned that the deductions were for life insurance. He immediately called Respondent who agreed to cancel the life insurance policies and provide a refund. Respondent was entitled to receive a commission of 75 percent of the first year's premiums for the sale of the life insurance policies to the employees of Delta.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance issue a Final Order finding Respondent guilty of violating Section 626.621(6) and that Respondent's licenses be suspended for a period of three months, or, in lieu of a suspension, Respondent should be required to pay to the Department a fine of $500 and be placed on probation for a period of two years subject to such terms and restrictions as the Department may apply. RECOMMENDED this 3rd day of June 1993, at Tallahassee, Florida. J. STEPHEN MENTON 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 3rd day of June 1993.
The Issue The issue is whether Petitioner’s request for hearing should be dismissed as untimely.
Findings Of Fact In a letter dated January 29, 2009,1/ DSGI informed Petitioner that his Level II appeal was denied. The appeal concerned Blue Cross and Blue Shield of Florida’s denial of coverage for a Magnetic Resonance Imaging Spectography procedure that Petitioner underwent in July 2008. The letter informed Petitioner of his right to request an administrative hearing on the denial of his appeal, and also informed Petitioner that the request must filed with DSGI within 21 days of his receipt of the letter. Copies of Florida Administrative Code Rules 28-106.201 and 28-106.301 were attached to the letter, as was an “informational page” that stated in pertinent part: Your request (petition) for a formal hearing must be in writing. We recommend you send your request by certified mail so you will have proof of the date the Department of Management Services (DMS) receives it. You lose your right to a hearing if we do not receive your request on time. (Bold in original and underlining added). * * * If you dispute the facts we used in our decision, state them in your written request for a hearing. Your request must meet the requirements of rule 28-106.201, Florida Administrative Code. Petitioner received the letter denying his appeal on February 9, 2009. The 21-day period for requesting a hearing on that decision expired on March 2, 2009. Petitioner requested a hearing on the denial of his appeal through a letter dated March 1, 2009. The letter stated in pertinent part: I am writing in protest of the decision rendered against a health insurance claim I submitted in July of 2008 by DSGI. I believe that the decision to DENY my health insurance is improper, the reasons for which actually encourage further health risks by limiting my health care options to only procedures that are inherently dangerous by promoting the spread of cancer. I am writing to request a formal hearing.... Petitioner mailed this letter to DSGI. The postmark date on the envelope in which the letter was mailed was March 5, 2009, which is after the applicable filing deadline. Petitioner’s request for hearing was received by DSGI on March 9, 2009 (seven days after the deadline), and was filed with the Clerk of the Department of Management Services on March 10, 2009 (eight days after the deadline). Petitioner’s request for hearing was untimely because it was filed more than 21 days after he received the letter denying his Level II appeal. The Order to Show Cause issued on April 23, 2009, gave Petitioner an opportunity to explain why his untimely petition should not be dismissed. The letter filed by Petitioner in response to the Order to Show Cause stated in pertinent part: I apologize for missing the 21 day deadline to file a request for hearing. I do not waive my rights. I cannot afford legal representation in this matter. I received the letter dated January 29 from the Department of Management Services [and] I was led to believe that a full and complete response -- one that was equal to the five-page letter I received -- was necessary. Because of the amount of information I felt that I was required to assemble, and demands on my life circumstances I [was] unable to file in a timely manner. The response to the Order to Show Cause also articulates what Petitioner believes to be the merit of his case,2/ which he argues “outweighs dismissal because of procedural technicalities.”
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DSGI issue a final order dismissing Petitioner’s request for hearing. DONE AND ENTERED this 5th day of May, 2009, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2009.
The Issue Whether the Respondent's licenses should be revoked, or whether lesser penalties should be imposed.
Findings Of Fact The following Stipulation of the parties was entered into evidence: The Petitioner and Respondent through their undersigned attorneys hereby stipulate to the introduction into evidence at the hearing to be held in this matter the attach ed copies of insurance policy applications referenced in the Administrative Complaint filed in this cause The Respondent further states that the applications were submitted to the respective insurers by Respondent, the Respondent signed the applications and received commissions on some of said appli cations. (Petitioner's Exhibit 4) An application was submitted to the Midwestern National Life Insurance Company by Respondent Owens in the name of Julia Lea Anderson, a witness for Petitioner, in September of 1977. In addition a form was submitted authorizing the automatic withdrawal of premium payments from Ms. Anderson's checking account. Ms. Anderson did not authorize, request or sign either the application for insurance or the check authorization withdrawal form. Respondent's testimony as to how he obtained the information he certified to be true and correct was contradictory and not worthy of belief. The Hearing Officer finds that Respondent submitted the application and check withdrawal form to Midwestern without the permission, knowledge or consent of Ms. Anderson in order to obtain a fee, commission or other benefit. An application for insurance was submitted to the Centennial Life Insurance Company together with an authorization form for said company to draw checks from a checking account of witness Roger Barone at the Dania Bank in Dania, Florida. Barone had never had an account at said bank and did not authorize or sign either the insurance application or the withdrawal form. Other applications not authorized or signed by Barone were submitted to the State Mutual Insurance Company and the Beneficial Standard Life Insurance Company. The application and the check withdrawal authorization were submitted by Respondent without the knowledge, consent or approval of Barone for the purpose of obtaining a fee, commission or other benefit. Applications for insurance were submitted to the Midwestern National Life Insurance Company by Respondent in the name of Chris E. Konopinski, John Scott Konopinski and Troy Allen Konopinski, all children of Carol Konopinski. Ms. Konopinski did not sign or request such applications, although she was listed as the applicant and beneficiary (Petitioner's Exhibit 5). The applications were made by Respondent Owens to secure a benefit for himself. Respondent filled out an application for insurance and check withdrawal form for Heather Gouvert without her signature or consent. Respondent admitted he thereafter sent a check dated November 13, 1976, to Ms. Gouvert in the amount of $24.25 marked "deposit only" to reimburse her for the amount the insurance company had drafted out of her account. Herman J. Zottie, a regional director of agencies for the Midwestern National Life Insurance Company, explained that his insurance company has a plan for new applications: When a premium is paid through a bank authorization (called a pre-authorization check plan), the company pays ninety (90) percent of two years' commission to the agent upon the payment of one month's premium. If the policy is thereafter cancelled, the unearned amount paid to the agent is charged back to the agent's account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that all licenses and eligibility for licenses of the Respondent, Grady Harold Owens, be revoked. DONE and ORDERED this 6th day of May, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Patrick F. Maroney, Esquire Legal Division Department of Insurance Room 428-A, Larson Building Tallahassee, Florida 32301 David R. Farbstein, Esquire 2610 West Oakland Park Boulevard Fort Lauderdale, Florida 33311
The Issue Whether Petitioner realized unlawful excess profits, and if so, in what amount.
Findings Of Fact Sentry is currently licensed and holds a Certificate of Authority to do business in the State of Florida as a foreign property and casualty insurer, and was so licensed at all times material. Sentry Select Insurance Company was known as John Deere Insurance Company until it was purchased by Sentry Insurance Group in October of 1999. On or about June 24, 1998, Sentry submitted Form D14-15 to the Department as required by Section 627.215, Florida Statutes. Form D14-15 is also known as Reporting Form F. The form provides insurance company data which is used by the Department to calculate workers' compensation excess profits. The Department did calculate the excess profits in the case of Sentry and on January 6, 1999, filed a Notice of Excessive Profits finding that Sentry had realized excess profits in the amount of $191,094.00 for calendar/accident years 1994-1996. In response to the Notice of Excessive Profits, Sentry provided to the Department, on or about May 26, 1999, commercial property and casualty experience data on a Form DI4-358. This was not a certified submission, nor was any evidence submitted which indicated that it should have been certified. Sentry asserted that this data could be used to offset the excess profits determined by the Department. Patricia Ferguson authenticated and made competent the commercial property and casualty experience data submitted by Sentry in May of 1999. The raw data presented is a business record of the company and therefore is admitted as an exception to the hearsay rule. Ms. Ferguson asserted that if the commercial property and casualty experience data was combined with the workers' compensation experience, Sentry would not have realized excess profits in the years 1994, 1995, and 1996. However, the material provided, including a completed Form DI4-358, is insufficient to permit the Department to make that determination. The excess profits statute, Section 627.215, Florida Statutes, was originally enacted into law in 1979. This statute only addressed excess profits in the case of workers' compensation insurance and employer's liability insurance for business written in Florida. In 1988, the Florida Legislature added commercial property and commercial casualty insurance written in Florida to the excess profits law and provided for a combination of these types of insurance in the case of insurers who wrote these types of coverage. Because the calculation of excess profits requires information from three years' experience, the statute was drafted so that only workers' compensation and employer's liability insurance was considered until 1991. Thereafter the different lines were to be combined. During the three-year period leading to 1991, data was reported, but no excess profits were required to be calculated. Between 1991 and 1997, companies reported their profit or loss underwriting experience for the latest three calendar/accident years valued at the end of the following year. Reports to the Department were due prior to the first day of July. For example, if the calendar accident years were 1994, 1995, and 1996, the profit or loss underwriting experience would be valued on December 31, 1997, and reported to the Department on Form F prior to July 1, 1998. Form F must be certified by a corporate officer. Excess profit has been realized if an insurer's underwriting gain exceeds the anticipated underwriting profit from the insurer's rate filings plus a five percent earned premium which the insurer may retain. Stated another way, if an insurer's profit is greater than that anticipated in its rate filing plus five percent then that amount is deemed excess profit. The Form F submitted by Sentry on June 24, 1998, was certified by the Assistant Secretary of Sentry as being a full and true statement. The Department correctly determined the amount of excess profit to be $191,094.00. This is the amount which must be returned to Sentry's premium payers as a cash payment or credit toward future premiums. The Department correctly declined to consider the commercial property and casualty experience submitted by Sentry, on May 26, 1999, on Form DI4-358, because the Department believed it could not consider that data in light of a change in the law made in 1995 which was effective January 1, 1997.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered which finds that Sentry realized $191,094.00 in excess profits for workers' compensation business covering calendar/accident years 1994, 1995, and 1996. DONE AND ENTERED this 30th day of October, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2001. COPIES FURNISHED: Elenita Gomez, Esquire Richard M. Ellis, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Frank J. Santry, Esquire Granger, Santry & Heath, P.A. 2833 Remington Green Circle Post Office Box 14129 Tallahassee, Florida 32317 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
Findings Of Fact Martin Daniel Patrick has been a life insurance agent for some 32 years. At all times material hereto he was the owner of Dan Patrick & Associates insurance agency at Brooksville, Florida. By Consent Order dated January 7, 1983, MOP's license as an Ordinary Life, including Disability, agent was suspended for a period of 60 days. By Emergency Order of Suspension dated August 3, 1983, his license was suspended based upon the allegations contained in the Administrative Complaint dated August 23, 1983. James R. Patrick has been in the insurance business since 1976. He owned the Jim Patrick Insurance Agency at all times relevant hereto and in August, 1982, purchased the Wardwell Insurance Agency. JRP is licensed as an Ordinary Life, including Disability, agent and as a General Lines agent, and is authorized to sell casualty insurance as well as life and health insurance. By Consent Order dated September 15, 1982 (Exhibit 9), JRP's license was suspended for a period of six months from the date of that order. After purchasing the Wardwell Insurance Agency, JRP decided to open a branch office in Brooksville and so notified the Insurance Commissioner (Exhibit 7). He intended to have Larry Kinner as office manager for the Brooksville office. Kinner had passed his examination but awaited licensure for a much longer period than usual. While awaiting Kinner's licensure, JRP took application forms to Brooksville, was given space in his brother's (MDP) office in Brooksville; employed his niece, Beverly Patrick, to take applications for automobile and other casualty insurance; visited Brooksville frequently to meet with customers to sell casualty insurance; was available by telephone to the Brooksville office when not physically in Brooksville; had another agent in the Wardwell office go to Brooksville frequently to sell policies and accept applications; and had Beverly Patrick forward all applications and premiums received to the Wardwell office at Bartow. After waiting about three months without Kinner receiving his license, JRP closed the Brooksville branch of Wardwell Insurance Agency. During the time this branch office was in existence in Brooksville, the Wardwell name did not appear on the door nor did Wardwell have a telephone number separate from that of Dan Patrick & Associates. The evidence was unrebutted that Beverly Patrick worked for and was under the supervision and control of the Wardwell Insurance Agency and not MDP. One of MDP's clients is James Gordon, who is employed by the Hernando State Bank as loan officer. In the fall of 1982 Gordon wanted to update his policies and talked to MDP about this during an incidental visit by MDP to the bank. Gordon worked up a spread sheet on his policies and arranged an appointment for MDP to come to his house to present a program to him and his wife. The exact date of this meeting was not established. At this meeting MDP presented a program to the Gordons, who wanted additional time to think about it. Within about two weeks of this meeting, Gordon notified MDP that he accepted the program and would have a check for the premium available when MDP next visited the bank. Gordon signed this application on February 7, 1983 (Exhibit 23), and wrote a check for the premium the same date. The only one to whom Gordon spoke about this insurance was MDP; however, his signature on the application was witnessed by David Pugh, a son-in-law of MDP who is a licensed insurance agent and works in the Dan Patrick agency in Brooksville. For the 60- day period following January 7, 1983, the license of MDP was suspended. Although the information regarding the program was probably prepared by MDP before January 7, 1933, the meeting with the Gordons at which the program was explained occurred subsequent to January 7, 1983. MDP contacted Vera Cannon in April or May, 1983, to update life insurance policies. He had sold her the original policy some ten years ago. On August 1, 1983, MDP picked up the existing policies from Vera Cannon to prepare a proposal to update the policies. She made an appointmemt with MDP for August 17, 1983, at which meeting MDP presented to her a proposal. David Pugh accompanied his father-in-law at this appointment. Respondent testified that he told Curtis Cannon, the husband of Vera Cannon, that his license was suspended and that Pugh would be handling the insurance; however, at the meeting with Vera Cannon, Respondent presented the proposals. MDP also contacted Becky Cannon, wife of Mark and sister-in-law of Vera, on August 18, 1983, for the purpose of selling additional life insurance. An appointmemt was made for August 22, 1983; however, Becky Cannon cancelled the appointment with MDP and set up another appointment for the following week. Before that date arrived, Becky recalled seeing something in the paper about Respondent's emergency suspension and called the insurance department. When told that MDP's license was suspended, Becky cancelled the appointment and told Vera that MDP's license was suspended. Vera then called Respondent's office to demand the return of the premium she paid. Pugh returned her check immediately. Gene Daniel is part owner of Branche-Daniel Corp d/b/a Brooksville Crown and Bridge. He contacted MDP regarding health insurance for his employees and for casualty insurance for his property. For this insurance he was referred to JRP, and he testified he purchased health insurance for his employees from Brenda Coley, a licensed agent in the Wardwell agency. Daniel does not recall when he spoke to MDP regarding his application for health insurance. Exhibit 22 contains an application, which appears to be dated January 10, 1983 (and 3-7-83) which is signed by Deanna L. Pugh, as agent, and a check signed by Daniel dated January 11, 1983. Daniel described himself as an absentee owner of the business to which he comes sporadically to sign documents and checks. No credible evidence was presented regarding the date of his conversation with MDP or that the latter did more than refer him to an agent licensed to sell the insurance Daniel desired. None of the parties to whom Respondents sold insurance allegedly in violation of Chapter 626, Florida Statutes, suffered any loss or complained of the treatment received from Respondents. During the time the Wardwell agency worked out of MDP's office in Brooksville, JRP's license was under suspension yet he was always available by telephone, when not in Brooksville, to answer questions from and give instructions to, Beverly Patrick. JRP testified that he made frequent trips to Brooksville, sometimes several days in one week. During these visits he met with customers to sell insurance.
Recommendation It is RECOMMENDED that the license of James Royal Patrick as an Ordinary Life, including Disability, and General Lines agent be suspended for a period of one (1) year. It is further RECOMMENDED that the license of Martin Daniel Patrick as an Ordinary Life, including Disability, agent be suspended for a period of one (1) year. ENTERED this 14th day of December, 1983, at Tallahassee, Florida. K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1983. COPIES FURNISHED: Curtis A. Billingsley, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 Thomas F. Woods, Esquire 1300 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Honorable Bill Gunter Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner, who was hurt while working for Respondent as a law enforcement officer, suffered a catastrophic injury on or after January 1, 1995, making her eligible for lifetime health insurance benefits pursuant to Section 112.19(2)(h)1., Florida Statutes.
Findings Of Fact From 1982 through January 1999, Petitioner Sheila Kiess (“Kiess”) was employed by Respondent Florida International University (“FIU”) as a law enforcement officer. On September 16, 1994, Kiess was injured at work in the course of subduing a violent young man who managed, in the struggle, to kick her right arm, causing severe pain. (This event will be referred to hereafter as the “First Accident.”) Kiess immediately reported to a clinic for medical attention, following which she returned to duty and completed her shift. Through workers’ compensation, Kiess received regular, ongoing medical treatment for her injured right arm, which continued to hurt and became even more painful as time passed. She continued to work as well but was not able to use her right arm. On December 17, 1994, Kiess’s doctor deemed her “unable to work,” at which point she stopped working. Kiess’s treating physician released her to return to modified duty on January 4, 1995. Accordingly, on or about that date, despite being still without the beneficial use of her right arm, Kiess resumed her duties as Shift Supervisor on the 4:00 p.m. to midnight shift. On January 24, 1995, while on duty, Kiess was called upon to help restrain an unruly person. Her previously injured right arm was twisted while wrestling with the combatant, causing great pain. (This event will be referred to hereafter as the “Second Accident.”) After the Second Accident, Kiess received medical treatment, again through workers’ compensation, at the same clinic where she had been seen regularly for the preceding four months as a result of the First Accident. She continued to work, with limitations on the use of her right arm. Some months later, Kiess came under the care of an orthopedic surgeon named Dr. Charles Virgin, who first saw her on June 12, 1995. Dr. Virgin determined that Kiess had sustained damage to the tendons around her right elbow. On April 23, 1996, Dr. Virgin operated on Kiess’s elbow, surgically removing damaged tissue and repairing the extensor tendon. At some point thereafter, Kiess returned to work. As Kiess healed from the surgery, the “old pain” associated with the preoperative trauma to her right arm gradually began to subside. In August 1996, however, Kiess began to experience “new pain” that was the result of a condition diagnosed as Reflex Sympathetic Dystrophy (“RSD”).1 The RSD most likely was caused by the preoperative trauma, or by the surgery, or by some combination thereof. About one year later, Dr. Virgin determined that, as of August 14, 1997, Kiess had reached maximum medical improvement (“MMI”).2 For workers’ compensation purposes, Dr. Virgin assigned Kiess a permanent impairment rating of six percent of the body as a whole. Despite having achieved MMI, Kiess suffered——and as of the date of the final hearing continued to suffer——constant, crippling pain, muscle spasms, swelling, and other symptoms caused by RSD. On July 27, 1998, Dr. Virgin wrote that Kiess was “temporarily totally disabled and . . . unable to work as a result of her employment injury.” After that, Kiess did not regularly, if ever, resume her duties at FIU. Effective January 21, 1999, FIU terminated Kiess from her employment as a police officer because her physical limitations could not be reasonably accommodated. FIU’s workers’ compensation carrier accepted Kiess as permanently and totally disabled, effective November 26, 2001. Ultimate Factual Determinations The parties have stipulated and agreed, and consequently the undersigned determines as an ultimate fact, that Kiess has suffered a “catastrophic injury” as that term is defined in Section 440.02, Florida Statutes. There is likewise no dispute that both the First Accident and the Second Accident occurred in the line of duty; that each did so is, therefore, accepted and found as a matter of ultimate fact. Further, it is undisputed, and hereby found, that the injuries Kiess suffered as a consequence of the referenced accidents occurred as a result of her responses to situations involving either an emergency or an unlawful act perpetrated by another. Finally, for reasons more fully explained below, it is determined that Kiess, on or after January 1, 1995, suffered a “catastrophic injury” in the line of duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent FIU enter a final order accepting Petitioner Kiess’s claim for health insurance benefits pursuant to Section 112.19(2)(h)1., Florida Statutes. DONE AND ENTERED this 17th day of November, 2003, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2003.
Findings Of Fact Respondent is currently licensed as an Ordinary-Combination Life, including Disability Insurance Agent to represent Interstate Life and Accident Insurance Company and as a General Lines Agent Limited to Industrial Fire to represent Interstate Fire Insurance Company. (Exhibit 37) During the period June 1, 1974, until October 1, 1976, Respondent was an agent for Gulf Life Insurance Company. In his application for licensing by Petitioner on the application dated July 3, 1974, Respondent listed his date of birth as December 14, 1928 (Exhibit 36), on the application dated June 28, 1975, Respondent listed his date of birth as November 11, 1928 (Exhibit 35), and on his application dated October 5, 1976, Respondent listed his date of birth as November 14, 1926 (Exhibit 34). By affidavit dated January 4, 1978 (Exhibit 33), Respondent declared he was born November 14, 1926. On March 15, 1974, John L. Harris was issued life insurance field policy No. 745 676 678 (Exhibit 1) and weekly premiums were paid continuously on this policy. He was also issued whole life policy No. 715 090 733 on October 18, 1971 (Exhibit 2), and weekly premiums were paid continuously on this policy. Although Harris paid the premiums each week when due to the Respondent, at one period these premiums were not remitted to Gulf Life and the policies lapsed. Immediately thereafter, on May 1, 1975, an application for new policies (Exhibit 5), was submitted to Gulf Life by Respondent with the name of John Harris in the space for the signature of the proposed insured. This signature was not that of Harris and Respondent signed the application as a witness to Harris signature. Gulf Life issued a policy to Harris (Exhibit 4) based upon this application. Evidence was presented that similar procedures were followed by Respondent in Gulf Life policies issued to Frances Harris, Dorcas Cohen, James Cohen, Joe Bryant, Peggy Hanie Bryant, Wilma Hanie and Brenda Bryant, whereby policies serviced by Respondent were lapsed by Gulf Life who later issued new policies on forged applications submitted by Respondent.
