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DEPARTMENT OF INSURANCE vs MARK SEBASTIAN MITCHELL, 02-002442PL (2002)

Division of Administrative Hearings, Florida Filed:Miami, Florida Jun. 18, 2002 Number: 02-002442PL Latest Update: Feb. 03, 2003

The Issue In this disciplinary proceeding, the issues relate to whether Respondent, a licensed insurance agent, violated various provisions of the Insurance Code in connection with his handling of insurance business for three clients, as Petitioner charged in an Administrative Complaint issued in October 2001.

Findings Of Fact Mitchell is a Florida-licensed life, health, and general lines insurance agent subject to the regulatory jurisdiction of the Department. At all times relevant hereto, Mitchell was engaged in the business of insurance, which he transacted through his corporate agency, M.G.M. Insurance Agency II, Inc., also known as Mitchell’s Financial Group, Inc.1 Chiverton (Count I)2 In May 1996, in connection with the purchase of a house, David Chiverton (“Chiverton”) turned to Mitchell’s agency for assistance in obtaining homeowner’s insurance. Mitchell placed the risk with Lloyd’s London, a surplus lines carrier, which issued Policy No. HMO3 012935 (“Policy #1”).3 Policy #1 covered the period from June 29, 1996 to June 29, 1997. Policy #1, in its entirety, is not in evidence——only the declarations page. Thus, the policy provisions are not available for review, and neither are the numerous endorsements referenced in the declarations. While it is undisputed that the main body of Policy #1 was a standard “HO-3” form, that form is not in evidence either. Consequently, looking solely at the record evidence, the undersigned cannot be certain as to what perils, exactly, were covered, not covered, and excluded from coverage under Policy #1. The declarations page advises that Policy #1 afforded several coverages, including, relevantly, $75,000 worth of coverage for the “dwelling” and a separate coverage for “other structures” in the amount of $7,500. Each of these coverages was subject to a separate deductible of $500. The total annual premium for Policy #1 was $1,085.70. Chiverton made a claim under Policy #1 soon after it was issued, for a loss resulting from water damage caused by a ruptured pipe that was located in the ceiling of the dwelling.4 The insurer paid this claim, the amount of which the evidence fails to show. Thereafter, on June 29, 1997, Policy #1 expired according to its terms and was not renewed. The evidence fails to establish an orderly sequence of ensuing events. It is clear, however, that, pursuant to Florida’s surplus lines law, Underwriters at Lloyd’s issued Chiverton a homeowner’s policy, numbered 97HO1956 (“Policy #2”), effective for the period from September 15, 1997 to September 15, 1998. Policy #2 was an “HO-8” policy, which covers fewer risks than does the HO-3 form. Therefore, Policy #2 differed from Policy #1 in several material respects, although the two policies shared certain features as well. For example, the limit of liability for coverage on the dwelling remained the same——$75,000——but was reduced to $1,000 for the other structures. On the other hand, the coverage limit for personal property was increased by $5,000, to $30,000; so, too, was the personal liability coverage ceiling raised, substantially, from $25,000 to $100,000. The loss deductible was $500 (the same as Policy #1) except that losses caused by windstorm or hail were subject to a larger deductible of 10% of the applicable coverage limit.5 The total annual premium for Policy #2 was $731.75, which saved Chiverton about $354 as compared to Policy #1. The Department contends that Policy #2 was inferior to Policy #1, affording less coverage and a higher deductible. The record does not contain a complete copy of Policy #2; in evidence instead is a Certificate of Insurance that is equivalent to a declarations page. Thus, it is impossible to determine, from a review of the instant record, whether Policy #2 was substandard or of poor quality in relation to Policy #1. On the premise of Policy #2’s purported inferiority (which was not convincingly proved), the Department argues that Mitchell acted against Chiverton’s best interests by obtaining Policy #2 rather than a policy similar to Policy #1. Chiverton testified that he would not have agreed to purchase Policy #2 had he known that the deductible (for windstorm and hail) was much higher and the coverage (he and the Department argue) more limited. However, the Department’s and Chiverton’s contentions ignore the advantages of Policy #2 (e.g. higher coverage limits for some coverages, lower premium), which a reasonable person might well have found attractive at the time the policy was written. At bottom, the problem with the Department’s position——and Chiverton’s testimony about what he would or would not have done——is that it constitutes Monday morning quarterbacking made with knowledge of losses that occurred during the coverage period of Policy #2. Chiverton made two claims under Policy #2, and both were denied. The first claim was for damages to the dwelling and the other structures that were caused by a windstorm on February 2, 1998. The evidence is sketchy as to what, exactly, happened on that date, and there is no persuasive proof regarding the actual cost of the repairs (or even if any were made). The adjuster’s report states that the dwelling sustained damages in the amount of $283.42 from a leaking roof and that the other structures suffered roof damage that would cost an estimated $1,636.57 to repair. The adjuster concluded that the loss to the dwelling fell within the $500 deductible and hence could not be paid. He concluded similarly that the loss to the other structures was within the 10% windstorm deductible and thus not payable either. The Department contends that this entire loss would have been covered under Policy #1. It is impossible adequately to evaluate this contention because, as explained above, neither Policy #1 nor Policy #2 is in evidence in its entirety. However, based on the adjuster’s figures, it appears that much of this claim would not have been paid under Policy #1. The damages to the dwelling ($283.42) fell under Policy #1’s $500 deductible; therefore, Lloyd’s London presumably would not have paid that portion of the claim. The roof damage to the other structures might have been covered under Policy #1,6 but the carrier would have subtracted the $500 deductible applicable to the “other structures” coverage, resulting in a payable claim of $1,136.57. The second claim, which Chiverton made in March 1998, sought reimbursement for a loss resulting from water damage caused by a ruptured water heater. This claim was denied on the ground that the loss was not covered. The Department’s contention that this claim would have been covered under Policy #1 is not proved. Without the entire policy to review, it is impossible to find that Policy #1 would, in fact, have covered this type of loss. In sum, the Department has failed to prove, even by a preponderance of evidence, that Policy #2 was not in Chiverton’s best interests; that Policy #2 caused injury or loss to the public; or that in obtaining such coverage for Chiverton Mitchell manifested a lack of competence or knowledge. Indeed, based on the extremely limited evidence in the record, it is as likely as not that, at the inception of coverage, Policy #2 was a better deal for Chiverton, on the whole, than Policy #1 had been. There is also reason to believe that, given Chiverton’s claims experience, a standard HO-3 homeowner’s policy with a small, $500 deductible on the windstorm coverage simply could not have been obtained for him. Apart from the above, the Department has charged that Mitchell forged Chiverton’s signature on the application for Policy #2. The evidence on this point is at best inconclusive—— and not nearly clear and convincing. The proof consists primarily of Chiverton’s testimony that the signature on the application is not his.7 Chiverton also testified that he never authorized anyone to sign this application on his behalf. There is no persuasive, much less clear and convincing, evidence that Mitchell personally “forged” Chiverton’s signature on the application. Further, it is highly unlikely that the application was signed by someone who intended to defraud or otherwise injure Chiverton. The undersigned is not clearly convinced that the person who signed the application for Chiverton (assuming it was not Chiverton) did so without either express or implied authorization, for the following reasons. First, as mentioned, Chiverton made two claims under Policy #2, in February and March 1998, respectively. There is nothing in the record which suggests that for the first five or six months of this policy’s life, Chiverton was dissatisfied with the coverage afforded thereunder. He seems not to have had any problems with Policy #2 until his claims were denied. Granted, the denial of these claims might have been his first notice of any potential problems with the policy, but even so, there is no contemporaneous evidence that Chiverton believed he had been effectively defrauded by the submission of a sham application. Second, Chiverton acquiesced in the renewal of Policy #2. It is undisputed that Underwriters of Lloyd’s issued a renewal policy, numbered 98HO1956 (“Policy #3”), that was (as far as the record shows) identical to Policy #2 in terms of coverage and limitations. Policy #3 was in effect from September 15, 1998 to September 15, 1999. There can be no doubt that, by the time Policy #2 was renewed, Chiverton possessed actual knowledge that some provisions of this policy, e.g. the 10% windstorm deductible, were less desirable than some provisions of Policy #1 (and, conversely, that some aspects of Policy #2, e.g. the price, were more desirable). Yet, there is no persuasive evidence that Chiverton objected to the renewal of Policy #2, which undermines the contentions that Policy #2 was the product of a fraudulent application and that Chiverton would never knowingly have purchased such coverage. Finally, Chiverton made at least two claims under Policy #3. On the first of these, submitted in December 1998, the carrier paid Chiverton $526.55 for a burglary loss. The second claim, which stemmed from another broken pipe, was denied in or around January 1999. There is no persuasive evidence that Chiverton contemporaneously expressed any dissatisfaction with Policy #3.8 Because Chiverton made claims and accepted benefits under Policy #3——a policy that he knew was not identical to Policy #1 and was, in fact, the renewal of Policy #2——the undersigned has determined that Chiverton either authorized the submission of the application that he supposedly did not sign or, alternatively, ratified the submission of that application. In any event, the signature on the application was not shown, clearly and convincingly, to have been forged by Mitchell. Rodriguez (Counts II-IV) In mid-1998, Aramis Cabrera and Nelys Rodriguez (collectively “Rodriguez”) agreed to purchase a house. At the closing of this transaction on June 29, 1998, Universal American Mortgage Company (“UAMC”), which was Rodriguez’s mortgagee, tendered $454 to Mitchell, who was Rodriguez’s insurance agent, as payment in full for one year’s premium on a homeowner’s policy insuring the property against windstorm and other hazards. Mitchell’s office accepted the premium payment and produced an instrument entitled “Evidence of Property Insurance” as proof that FRPCJUA had issued Rodriguez a homeowner’s policy covering the property for the period from May 29, 1998 to May 29, 1999. Consequently, Rodriguez and UAMC reasonably believed that such coverage was in force. In fact, however, FRPCJUA had not issued a policy; Rodriguez was without homeowner’s insurance.9 A year later, when the time came to renew the non- existent homeowner’s policy, Mitchell’s office delivered an insurance binder to UAMC showing that for the period from May 29, 1999 to May 29, 2000, the Florida Windstorm Underwriting Association (“FWUA”) would carry Rodriguez’s windstorm insurance and that United Property and Casualty Company (“UPC”) would cover the other hazards. According to the binder, the premium for the windstorm coverage was $446 and for the other hazards, $585. On May 26, 1999, UAMC sent Mitchell’s agency two checks—— one for each premium——totaling $1,031. Thereafter, UAMC increased Rodriguez’s monthly mortgage payment to account for this steep increase in the cost of insurance. Rodriguez complained, both to UAMC and to Mitchell’s office, but to no avail. Meanwhile, unbeknownst to either Rodriguez or UAMC, Rodriguez’s property was still not insured. The binder notwithstanding, neither UPC nor FWUA had actually issued a policy.10 Months later, in October 1999, Mitchell’s office submitted an application to Fortune Insurance Company (“Fortune”) on Rodriguez’s behalf for dwelling fire insurance. In a letter to Rodriguez dated December 29, 1999, Fortune rejected the application, explaining that it had ceased writing new business in Dade County prior to the application date. At some point, too, Mitchell’s office applied to FWUA for windstorm insurance on Rodriguez’s property and tendered $416 in payment of the premium. Evidently there was some problem with this application, however, for FWUA returned the entire $416 payment, sending Mitchell’s agency a check in that amount dated December 20, 1999. Mitchell’s office then resubmitted Rodriguez’s application, together with $416, and this time FWUA accepted the risk, issuing a declarations page on March 1, 2000, that evidenced windstorm coverage on Rodriguez’s home from January 12, 2000 to January 12, 2001. At the same time, FWUA sent Mitchell’s agency a check for $122 because FWUA had been overpaid: the actual premium for the windstorm policy was only $294. When UAMC received FWUA’s declarations page in March 2000 showing that Rodriguez’s windstorm coverage had commenced on January 12, 2000, the lender became concerned, knowing that Mitchell’s office had been sent a check for $466 ten months earlier to pay for an FWUA policy that was supposed to have taken effect on May 29, 1999. UAMC immediately demanded that Mitchell provide verifiable evidence of continuous coverage on the Rodriguez property, from the date the loan closed in June 1998 to the present. Mitchell could not comply. Instead, he refunded the money that UAMC had paid his agency for Rodriguez’s insurance. To that end, Mitchell sent UAMC checks dated March 2, 2000, and March 15, 2000, in the amounts of $416 and $1,069, respectively, which equaled the total amount ($1,485) that UAMC had tendered to his agency.11 On March 16, 2000, Mitchell delivered yet another check, in the amount of $122, to UAMC. Thus, UAMC received from Mitchell $122 in excess of the amounts it had paid his agency for insurance——and Mitchell wound up paying, out of his own pocket, for Rodriguez’s windstorm policy for the one- year period beginning on January 12, 2000. Whether the product of incompetence, negligence, or intentional wrongdoing, serious acts of misconduct were carried out in Mitchell’s name and under Mitchell’s license. It is appalling that from May 28, 1998 until January 12, 2000, Rodriguez had no windstorm insurance and, until at least March 2000 (and probably later——the evidence is unclear) no insurance for other hazards either, despite having paid for such coverage and having been assured that it was in place. At hearing, Mitchell did not deny that problems had occurred in connection with Rodriguez’s insurance matters, and he accepted responsibility for them as the licensed agent in charge of his office. But, by way of exculpation, Mitchell blamed a former employee for having mishandled Rodriguez’s business, and he disclaimed personal knowledge of, or involvement in, the transgressions associated therewith. The evidence does not dispute or negate this hypothesis. Indeed, no persuasive direct evidence clearly shows that Mitchell himself specifically intended to violate any particular statutory or rule provision in connection with the Rodriguez account. Likewise, there is no persuasive direct evidence that Mitchell personally intended to defraud Rodriguez (or UAMC), or that he personally, willfully misappropriated funds belonging to another. In short, the evidence adduced at trial does not convince the undersigned that Mitchell personally committed, caused, condoned, or knew about the misconduct. Whether Mitchell should have known of these misdeeds is a closer question. Making the issue difficult is that the Department presented no evidence of (or argument concerning) the minimum standards of conduct that insurance agents must meet in the exercise of due care. Thus, there is no direct proof that Mitchell negligently supervised his employees, which breach of duty would make him personally culpable for their wrongdoing. Lacking direct evidence, the undersigned has carefully considered whether to infer, based on the nature of the violations or other circumstantial evidence in the record, that Mitchell should have known of the misconduct that occurred in his office. Such an inference would not be outlandish. After all, documents issued in Mitchell’s name falsely assured Rodriguez and UAMC that coverage was in place when in fact it was not. And, profiting from such misrepresentations, Mitchell’s office accepted payments from UAMC (made on Rodriguez’s behalf) for insurance that did not exist. One wonders: Wouldn’t Mitchell have discovered these problems if he had reasonably supervised his employees and made a reasonable review of the files? Before answering “yes,” consider that the Department made no attempt——and hence failed——to prove that the apparent misconduct of Mitchell’s employees was so flagrant, persistent, or practiced that a prudent person could not possibly have missed it. Similarly, there is no evidence concerning the volume of Mitchell’s insurance business, and thus the record does not permit a reliable conclusion to be drawn as to whether these were relatively isolated, easily overlooked lapses——or glaring problems that could not reasonably have been missed.12 Nor did the Department present persuasive evidence that Mitchell completely failed to supervise his employees.13 Absent such evidence, it is debatable whether an inference of constructive knowledge is legally permissible here. Even if an inference leading to the ultimate factual determination that Mitchell fostered, condoned, or negligently overlooked the misconduct of his employees were permissible, however, such an inference would be a relatively weak one. Ultimately, therefore, while it is tempting, given the gravity of the misconduct, simply to pronounce that Mitchell should have known of the problems that plagued Rodriguez, such a finding would rest too much on the undersigned’s personal opinion and not enough on either persuasive direct or compelling circumstantial evidence of negligent supervision. At bottom, the evidence does not clearly convince the undersigned that Mitchell should have known of the deceptive practices that occurred in his office in connection with the Rodriguez account. Mitchell, therefore, is not guilty of the charges brought in Counts II and III of the Administrative Complaint.14 As for the charge brought in Count IV, wherein the Department accused Mitchell of having submitted an application to Fortune after he had been informed by the insurer that risks in Dade County would no longer be accepted, the only proof of this alleged fact is a letter from Fortune to Rodriguez dated December 29, 1999, which is plainly hearsay and as such cannot be relied upon by the trier. Even if credited, this document would not constitute clear and convincing proof of the charge. Thus, Count IV fails for want of adequate evidence. Kidd (Count V) Jean Kidd (“Kidd”) was a client of Mitchell’s whose homeowner’s insurance had been placed with American Colonial Insurance Company (“American Colonial”) through Mitchell’s agency. Kidd’s initial policy covered the period from November 7, 1998 to November 7, 1999. Before Kidd’s policy was due to expire, American Colonial’s managing general agent, which is identified in the record only as “MHD,” sent a renewal offer to Kidd and to Mitchell. The renewal offer comprised two pages, but only the first page is in evidence. The second page——which, according to page 1, contained “important Coverage and Premium Information”—— is not in the record. Apparently, the insured’s acceptance of the renewal offer was to be manifested by paying the premium. For reasons that the evidence does not explain, Kidd failed to respond to the renewal offer, and her policy with American Colonial lapsed on November 7, 1999, for nonpayment. The evidence does not establish whether Mitchell knew that Kidd’s policy had lapsed. It is not clear, either, whether Mitchell should have known about Kidd’s failure to pay, because while her policy was in force, Kidd had been making payments to a premium finance company, not to Mitchell.15 Some time later——the evidence is unclear——Kidd contacted Mitchell to inquire about renewing or reinstating her policy. Mitchell informed Kidd that she needed to make a “down payment” of $282 to reinstate the policy, and on April 20, 2000, Mitchell personally collected Kidd’s check, payable to Mitchell’s insurance agency, in that amount. The evidence is in conflict as to Mitchell’s handling of this money. Mitchell testified that on April 21, 2000, he mailed $282 to American Colonial’s managing general agent on Kidd’s behalf, and there is a document in evidence corroborating this fact. The Department did not directly dispute or negate Mitchell’s testimony. On the other hand, it is clear that American Colonial did not receive these funds, which arguably casts some doubt on Mitchell’s account. Providing a plausible resolution of the conflict is that around this time, American Colonial was in the process of transferring its business from MHD to a new managing general agent, MacNeill Group. Although there is no direct evidence, the inference that MHD lost, misplaced, or mishandled Mitchell’s $282 check in the shuffle of the transition is sufficiently reasonable that the undersigned is unable to find, without hesitancy, that Mitchell willfully misappropriated Kidd’s money, as the Department has charged. It is not clear what, if anything, Mitchell did to follow up on the down payment and follow through with the reinstatement of Kidd’s policy. Since American Colonial did not issue a policy in or around April 2000, a reasonable observer might surmise that Mitchell dropped the ball. The obstacle to making a finding to that effect, however, is the complete absence of evidence in the record establishing the applicable minimum standards of conduct against which Mitchell’s performance can be judged. While the undersigned holds the personal view that a reasonably diligent insurance agent should at least keep track of the progress of his client’s insurance application and promptly inform his client of the insurer’s acceptance or rejection of the risk, the undersigned does not make the rules, set the standards, or decide cases based on his personal preferences. As for what happened next, the evidence is incomplete. In July 2000, Kidd suffered a loss from water damage caused by a leaky pipe under her kitchen sink. She contacted Mitchell’s office and, on July 24, 2000, was sent a two-page fax consisting of a cover sheet and page 1 of American Colonial’s renewal offer, which had lapsed in November 1999. According to Kidd, Mitchell’s “then secretary” sent this fax, at Kidd’s request, so that Kidd could file a claim.16 Kidd understood the renewal offer to be evidence of coverage. The Department contends that Mitchell fraudulently and dishonestly passed off American Colonial’s renewal offer as proof of insurance. Nothing in the July 24, 2000, fax, however, characterizes the renewal offer as such. More important, the evidence demonstrates that Sharon Montgomery——not Mitchell——sent the fax, and there is no persuasive direct or compelling circumstantial evidence that Mitchell knew or should have known that these pages were transmitted, much less the reason for the communication. In sum, the undersigned is not convinced that Mitchell personally misrepresented to Kidd the existence of an insurance policy; that he condoned such deception; or that he negligently permitted this to occur. In October 2000, Kidd’s roof was damaged in a storm, and she contacted Mitchell about making a claim. Mitchell was personally involved in this claim, although it is not clear that he or his agency submitted paperwork to American Colonial or otherwise put the carrier on notice. Rather, it appears that Mitchell advised Kidd to make a claim with the Federal Emergency Management Agency, and he may have assisted her in doing so. Dissatisfied with the service that Mitchell’s agency was providing, Kidd eventually filed her claims directly with American Colonial in late October or November 2000. Upon investigation, the carrier determined that Kidd’s original policy had lapsed in November 1999 for nonpayment of premium. However, in late December 2000, American Colonial decided to honor Kidd’s claims anyway, issuing her a policy effective retroactively, as of April 20, 2000 (the date she had tendered $282 to Mitchell for a down payment), on the condition that she promptly pay a balance of $1,418 in premium. By letter dated December 20, 2000, American Colonial rescinded Mitchell’s authority to act on its behalf and demanded that he pay $282 towards the premium for Kidd’s policy. On December 22, 2000, Mitchell sent American Colonial a check for that amount. Although the evidence is spotty, it is clear that as of October 2000, when he became personally involved in handling a claim for Kidd, Mitchell should have known that Kidd was without coverage, and he probably should have taken affirmative steps immediately to correct the problem. The Department, however, did not charge Mitchell with misconduct relating to his apparent failure to do something to protect Kidd at this late date, focusing instead on alleged violations (misappropriation of funds, misrepresentation of coverage) that were not clearly and convincingly proved. Moreover, the Department did not offer any evidence as to the minimum standards of conduct in these circumstances. Thus, while the undersigned believes that Mitchell should have done something, he can only speculate as to what Mitchell should have done. Similarly, Mitchell’s handling of Kidd’s second claim (for roof damage) seems to have been woefully inadequate, but, again, Mitchell was not charged with any violations relating to claims administration per se, and in any event there is no evidence concerning the applicable standards of conduct in this regard. Consequently, the undersigned is compelled to make the ultimate factual determination that the Department has failed to prove, clearly and convincingly, the truth of the charges brought against Mitchell in connection with Kidd.17

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Mitchell not guilty of the charges brought against him in the Amended Complaint. DONE AND ENTERED this 18th day of November, 2002, in Tallahassee, Leon County, Florida. 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 18th day of November, 2002.

Florida Laws (10) 120.569, 120.57, 626.561, 626.611, 626.621, 626.734, 626.748, 775.082, 775.083, 775.084

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