The Issue Whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Myron Ihor Ostapchuk (hereinafter "Respondent") was eligible for and licensed as a non-resident life and health insurance agent in this state. In June, 1990, Mark Harold Johnson and Frances Conroy jointly met with the Respondent in Jacksonville, Florida, to discuss their potential licensure as health insurance agents with Western Fidelity Insurance Company. During the meeting, the Respondent represented that he had the authority to hire agents on behalf of Western Fidelity. After hearing of the opportunity, Ms. Conroy, a friend of Mr. Johnson's, left to attend to other matters, while Mr. Johnson remained and obtained additional information. Contrary to his representation to Mr. Johnson and Ms. Conroy, the Respondent was not authorized to hire agents on behalf of the Western Fidelity Insurance Company. At the time of the meeting, the Respondent requested $150 from Mr. Johnson to cover the cost of licensure. Mr. Johnson examined the materials provided by the Respondent and determined that the Western Fidelity administrative fee was $25 and the state's licensing fee was $40. Mr. Johnson mentioned the matter to the Respondent who agreed to accept $65 as the total fee. Mr. Johnson obtained the necessary forms for both himself and Ms. Conroy and the meeting ended. Ms. Conroy completed her forms and gave them to Mr. Johnson. After completing his forms, Mr. Johnson contacted the Respondent who resided in Tallahassee, and made arrangements to bring both his and Ms. Conroy's completed forms and required fees to the Respondent's home. Mr. Johnson paid the $65 fee by check number 2895 dated June 12, 1989 drawn on Southeast Bank of Jacksonville made payable to "United Financial". The check was deposited into the First Florida Bank of Tampa account number 612131053 of "United Financial Consultants Group, Inc.", a business entity controlled by the Respondent. Ms. Conroy paid the $65 fee by check number 4337 dated June 8, 1989 drawn on Barnett Bank of Jacksonville made payable to "United Financial Services". The check was deposited into the First Florida Bank of Tampa account number 612131053 of "United Financial Consultants Group, Inc." The Respondent was not authorized to accept the funds on behalf of, and failed to submit such funds to, the Western Fidelity Insurance Company. The Respondent has not refunded the funds to either Mr. Johnson or Ms. Conroy. In order to become licensed, both Mr. Johnson and Ms. Conroy submitted additional funds to Western Fidelity Insurance Company. On or about June 12, 1989, the Respondent met with and sold a policy of health insurance to Katherine Marinakis . Ms. Marinakis gave to the Respondent her check number 0854 in the amount of $232.00, dated June 12, 1989, drawn on First Florida Bank of Clearwater, and made payable to "U. F. C. G." The Respondent provided to Ms. Marinakis a receipt identifying her payment as the initial premium for the Western Fidelity Insurance Company policy. Ms. Marinakis' check cleared through the First Florida Bank of Tampa, Florida, and the funds were deducted from her checking account. The Respondent failed to submit the premium payment to Western Fidelity Insurance Company. The Respondent has not refunded the premium payment to Ms. Marinakis.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Insurance enter a Final Order revoking the licensure and eligibility for licensure of Myron Ihor Ostapchuk as a non- resident life and health insurance agent in this state. DONE and RECOMMENDED this 21st day of May, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 21st day of May, 1991.
The Issue Whether Respondents are indebted to Petitioner in the amount of $18,330.00 for agricultural products (bahia sod).
Findings Of Fact Petitioner, McCullough Grass Corporation, is a producer of agricultural products and is located in Balm, Florida. Respondent, Landtech Services, Inc. (Landtech), is an agricultural dealer located in Largo, Florida. Co-Respondent, Western Surety Company, is a surety which issued Respondent Landtech a surety bond during times material. On April 19, 1993 and on May 18 and 19, 1993, Petitioner sold to Respondent Landtech 217,000 square feet of bahia sod for the total price of $18,330.00. The terms of the sale between Petitioner and Respondent Landtech were for net payment for products sold within thirty days after the invoice date. Respondent, Landtech, has paid Petitioner approximately $8,000.00 toward the purchase price of the sod leaving a balance now due and owing of $10,470.70. Respondents, Landtech and Western Surety Company, did not appear at the hearing to contest or otherwise refute the charges alleged in Petitioner's complaint. Respondent, Landtech, is indebted to Petitioner in the amount of $10,470.70 for bahia sod purchased from Petitioner during April and May of 1993.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Agricultural issue its final order requiring that Respondent, Landtech, pay to Petitioner the amount of $10,470.70 within fifteen (15) days of its final order. It is further RECOMMENDED that if Respondent, Landtech, fails to comply with the order directing payment, that the Department shall call upon the surety, Western Surety Company, to pay over to the Department from funds out of the surety certificate, the amount needed to satisfy the indebtedness. 1/ RECOMMENDED this 3rd day of March, 1995, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 March, 1995.
Findings Of Fact Respondent, Larry K. Sechrest, was at all times relevant to the charges contained in the Administrative Complaint, licensed as limited surety agent in the State of Florida representing Allied Fidelity Insurance Company ("Allied"). In February, 1982, Respondent's accounts with Allied were audited by their representative at which time it was discovered that Respondent executed but did not report 202 powers of attorney. The aforementioned powers represented $11,464.51 in premiums due Allied, and an additional $5,732 due the buildup fund. On March 4, 1982, Allied demanded that the Respondent remit to them these premiums and buildup fund payments and account for and return the missing powers of attorney. Respondent had failed to comply with Allied's demands as of the date this Administrative Complaint was filed by Petitioner (July 20, 1982). Respondent subsequently offered to repay Allied at the rate of $1,000 per month, but this was refused. At the final hearing on February 16, 1983, Respondent offered to repay the total amount due within 30 days. On April 29, 1981, Respondent attempted to post a ne exeat bond in the amount of $25,000 for Douglas R. Valentine of Manatee County, Florida, based on power of attorney number FL2800913 issued by Allied. Respondent had not been given authority by Allied to post ne exeat bonds. Power of attorney number FL2800913 was by its language to be issued for appearance bonds only.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of violating Subsections 648.45(1)(d), (h) and (j), Florida Statutes (1981), as charged in Count I of the Administrative Complaint, and suspending his limited surety agent's license for one year; provided, however, that such license shall not be reinstated until Respondent has made restitution to the Allied Fidelity Insurance Company. DONE and ENTERED this 20th day of May, 1983, in Tallahassee, Florida. R. T. CARPENTER 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 20th day of May, 1983. COPIES FURNISHED: Clark R. Jennings, Esquire Department of Insurance The Capitol Tallahassee, Florida 32301 Jerry Surfus, Esquire 150 East Avenue, South Sarasota, Florida 33577 The Honorable Bill Gunter Insurance Commissioner Department of Insurance The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF INSURANCE AND TREASURER IN THE MATTER OF LARRY K. SECHREST Revocation of License and Case No. 82-L-162J Eligibility for Licensure DOAH Case No. 82-2617 Limited Surety Agent / ORDER REVOKING RESPONDENT'S LICENSES AND ELIGIBILITY TO HOLD LICENSES THIS MATTER came on to be considered upon the transcript of record of hearing held on February 16, 1983, in Sarasota, Florida, and the Report, Findings, Conclusions and Recommendations of the Hearing Examiner dated May 20, 1983. Upon consideration thereof and being otherwise fully advised in the premises, it is ORDERED: The Findings of Fact of the Hearing Examiner are adopted. The Conclusions of Law of the Hearing Examiner are adopted. The Recommendation of the Hearing Examiner is rejected for the following reasons: Section 648.49, Florida Statutes prohibits the establishment of a period of suspension in excess of one (1) year. The Department lacks the authority to condition any Order upon financial restitution by a Respondent to any aggrieved party listed in an Administrative Complaint. Revocation of license and eligibility for licensure is an appropriate remedy under the statutory authority cited in the Administrative Complaint, and the Hearing Officer's Conclusions of Law. All licenses of the Respondent, LARRY K. SECHREST, heretofore issued within the purview of the Florida Department of Insurance and eligibility to hold said licenses be, and the same are hereby revoked. DONE and ORDERED at Tallahassee, Florida, this 28th day of June , 1983. BILL GUNTER Insurance Commissioner and Treasurer WILLIAM D. RUBIN Assistant Insurance Commissioner and Treasurer COPIES FURNISHED: Jerry Surfus, Esquire 150 East Avenue, South Sarasota, Florida 33577 Clark R. Jennings, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301
Findings Of Fact The Respondent Dorman Kennedy Hicks is licensed as an ordinary life, including disability agent in the State of Florida. On April 7, 1982, the Respondent visited Herbert G. and Oma Riley at their home in Pompano Beach, Florida, to sell them insurance. The Respondent sold Mr. and Mrs. Riley medicare supplement policy number 13-986-6209 issued by Union Fidelity Life Insurance Company. The Respondent was given by Mrs. Riley, a $358.30 check dated April 7, 1982 for a six-month premium for the medicare policy with Union Fidelity. Mr. and Mrs. Riley repeatedly told the Respondent that their medical histories were poor and he assured them that they could nevertheless obtain medical coverage through Union Fidelity. Despite Mr. and Mrs. Riley's request, the Respondent failed to include their poor medical histories with the application he forwarded to Union Fidelity. When Mr. and Mrs. Riley received a copy of their policy, their medical histories were not included. They then called the Respondent in order for him to submit the information to the insurance company. The Respondent assured the Rileys that he would forward the information to Union Fidelity; however, he never notified the company as he had told the Rileys. After Mr. and Mrs. Riley notified Union Fidelity directly about their medical histories, the company cancelled their coverage. The Respondent accepted payment from Mr. and Mrs. Riley knowing that he could not obtain medical coverage for them if their medical histories were disclosed to the company. The application which the Respondent solicited from Mr. and Mrs. Riley for coverage with Union Fidelity was dated April 27, 1982. The Respondent had been terminated by Union Fidelity for cause on April 8, 1982. On the date of the application which was solicited from Mr. and Mrs. Riley, the Respondent was not authorized to represent Union Fidelity. The application which the Respondent solicited from Mr. and Mrs. Riley for coverage with Union Fidelity dated April 27, 1982, was signed by Lester Fulford, a soliciting agent. Lester Fulford was not present at the time that the Respondent solicited the insurance application from Mr. and Mrs. Riley.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a Final Order revoking the insurance licenses of the Respondent Dorman Kennedy Hicks. DONE and ENTERED this 9th day of November, 1983, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1983 COPIES FURNISHED: Dorman Kennedy Hicks 1041 N.W. 45th Street Pompano Beach, Florida 33064 Susan E. Koch, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 Donald Dowdell, Esquire General Counsel The Capitol, Plaza Level Department of Insurance Tallahassee, Florida 32301 Honorable William Gunter Insurance Commissioner and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32301
The Issue Whether Respondent's license as a life insurance agent and life and health insurance agent and his eligibility for licensure in the state of Florida should be revoked, suspended or otherwise disciplined.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was licensed as a life insurance agent and a life and health insurance agent, carrying Agent Number 262984024, and is currently eligible for licensure. On or about June 11, 1991 Lena B. Pinkerman, an 85 year old widow, residing in Bradenton, Florida, was insured under the provisions of a National Western Life Insurance Company (National Western) Single Premium Endowment Policy Number 0100510100. Policy Number 0100510100 was owned by Arthur Pinkerman, Lena Pinkerman's deceased husband. Lena Pinkerman owned other National Western insurance policies. These policies had been sold to Lena Pinkerman, and apparently also to her husband, by the Respondent. The Respondent's agency with National Western terminated on March 10, 1991. On or before June 11, 1991 Lena Pinkerman requested the Respondent to effectuate the change of beneficiaries on one or more of the policies with National Western. On June 11, 1991 Respondent contacted National Western by telephone requesting the necessary forms for such change. The record of the telephone call to National Western by Respondent kept by National Western indicates that the Respondent requested forms for change of beneficiary and ownership to be sent to Respondent or the insured (Lena Pinkerman). By letter dated June 19, 1991, addressed to Lena B. Pinkerman at Respondent's address, 410 15th Street West, Bradenton, Florida 34205, National Western advised that only policy number 0100510100 would need an ownership and beneficiary change effectuated since it was the only policy owned by Arthur Pinkerman, Lena Pinkerman's deceased husband. The balance of the policies were owned by Lena Pinkerman. On June 24, 1991 Lena Pinkerman signed a letter that the Respondent had printed in ink for Lena Pinkerman's signature advising National Western that she desired to "cash-in" one of her policies to pay off some debts and to send the money to her temporary address, 410 15th St. W., Bradenton, FL 34205. Along with Lena Pinkerman's letter of June 24, 1991, referred to in the above Finding of Fact, National Western received a completed copy of its Policyowner's Change Request and Endorsement of Policy form signed by Lena B. Pinkerman, as the insured, requesting a change in ownership from Arthur Pinkerman to Lena B. Pinkerman. Also along with the June 24, 1991 letter National Western received a completed copy of its Surrender Request signed by Lena B. Pinkerman, as owner, requesting full cash surrender and advising National Western to mail the check to, Lena B. Pinkerman, 410 15th St. W., Bradenton, FL. 34205. Since Lena B. Pinkerman was "cashing-in" the National Western policy, there was no need to change the beneficiary. However, a change in ownership was required and was the reason for submitting the form. Policy Number 010510100 was originally purchased for a single premium payment of $100,000.00 and had a surrender value of $129,525.94 representing an increase in value of $29.525.94. There was testimony that the increase in value would be subject to the federal income tax since the gain had been paid, as well as testimony that since the increase in value was reinvested in a like annuity that it would not be subject to federal income tax at this time. None of this testimony rises to the level of being competent evidence upon which one could rely. Therefore, there is insufficient evidence to determine whether the gain is taxable or not taxable. A check made payable to Lena B. Pinkerman dated July 5, 1991 drawn on National Western in the amount of $125,727.55, the cash surrender value ($129,525.94) minus the amount withheld by National Western for taxes ($3,798.39), was received by the Respondent at the address given in the Surrender Request. The check referred to in the above Finding of Fact was endorsed by Lena B. Pinkerman and below her signature the Respondent wrote "For Deposit only to National Benefit Life". The check was deposited by Benefit Life on July 10, 1991. The Respondent had no control over the account into which the funds were deposited. By application dated July 8, 1991, signed by David R. Thomas as Annuitant and signed by Lena B. Pinkerman, as Owner, with Respondent signing as Agent, a Flexible Premium Deferred Annuity policy number 821962 in the amount of $125,727.55 was issued to Lena B. Pinkerman, as owner, with David R. Thomas, as the Annuitant by Benefit Life. The cash surrender check referred to in the above Finding of Fact deposited to the account of Benefit Life was used to pay the single premium of $125,727.55. The Respondent received $6,286.38 from Benefit Life as a commission on the sale of the policy. The commission paid by Benefit Life to the Respondent did not reduce the amount of the annuity policy issued to Lena B. Pinkerman by Benefit Life. On July 22, 1991, the Respondent prepared a letter printed in ink addressed to National Western requesting that National Western send the taxes withheld on the surrender of policy number 0100510100 to Lena Pinkerman at 410 15th St. W., Bradenton, FL 34205. This letter was signed by Lena Pinkerman. On July 30, 1991 National Western caused to be issued in the name of Lena B. Pinkerman a check in the amount of $3,7978.39 which represented the amount of taxes withheld earlier by National Western for taxes. This check was endorsed by Lena B. Pinkerman, with "For Deposit Only To Financial Benefit" written by the Respondent beneath the signature of Lena Pinkerman. This check was deposited in the Benefit Life account on September 9, 1991. There was no evidence that Respondent caused the delay in this check being deposited by Benefit Life. The amount of this policy was added to the original premium for the annuity policy. Question 7 on the Benefit Life application is addressed to the proposed annuitant and owner asks "Is this annuity applied for to replace any existing insurance or annuity policy?". Both David R. Thomas, the proposed annuitant and Lena B. Pinkerman, the owner, answered "no" to Question 7 and represented their answer to be true and correct to the best of their knowledge and belief by affixing their signatures to the application. The question asked of the agent on the Benefit application is "Do you have knowledge or reason to believe that the annuity applied for by this application will replace or change any insurance or annuity currently in force on the life of the proposed Annuitant?". Respondent answered "No". There was no evidence of any insurance or annuity currently in force on the life of David R. Thomas, the proposed Annuitant, which was being replaced by this annuity policy. There is competent substantial evidence to establish facts to show that Lena B. Pinkerman had knowledge of, and gave informed consent to, all of the Respondent's actions which resulted in Lena B. Pinkerman surrendering annuity policy number 0100510100 issued by National Western and using the funds received to purchase the Flexible Premium Deferred Annuity issued by Benefit Life, including but not limited to, submitting the Policyowner's Change Request And Endorsement of Policy, the Request for Surrender, the letters prepared for Lena Pinkerman's signature by the Respondent including the request to send monies withheld for taxes, the endorsement of all checks and the deposit of those checks with Benefit Life and the application to Benefit Life for the Flexible Premium Deferred Annuity, notwithstanding the testimony of Lena B. Pinkerman and David Thomas to the contrary. There is no evidence that Lena B. Pinkerman suffered any financial loss as a result of Respondent's action. In fact, there was unrebutted testimony that Benefit Life was a more stable company than National Western and the Benefit Life policy would in the long run yield more return for the policyholder than would the National Western policy. When Lena B. Pinkerman made a demand on the Respondent for the return of National Western annuity policy number 0100510100 or the funds received therefrom, the Respondent attempted to work out an arrangement with Benefit Life for the return of the commission which was a condition for the return of the premium payment. Benefit Life would not accept any thing other than full return of the commission before the return of the premium payment. At the time, Respondent was not financially able to return the full commission. There was no duty upon Benefit Life to return the premium or for the Respondent to return the commission since at the time of the demand the ten-day (look-see) waiting period had expired. Additionally, there was sufficient information on the policy and other documents to alert Pinkerman as to who to contact regarding this policy. The main concern of Lena B. Pinkerman was that the gain received on the surrender of National Western policy number 0100510100 would be subject to federal income tax. Although there was evidence to show that Lena Pinkerman did make a trip out of state for a period of time during June or July, 1991, there was insufficient evidence to establish the exact period of time she was out of state.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Department enter a Final Order dismissing the Administrative Complaint against the Respondent. DONE AND ENTERED this 21st day of December, 1992, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 21st day of December, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3634 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the finding(s) of fact which so adopts the preceding proposed finding(s) of fact: 1(1); 2(2,3); 3(4); 4(5); 5(6); 8,(10); 12(12,13); 13(14,15) and 16(20). Proposed findings of fact 6 adopted in substance as modified in finding of fact 7 with the exception that the act was not with knowledge and consent of Pinkerman which is rejected as not being supported by competent substantial evidence in the record. Proposed finding of fact 7 is accepted in substance as modified in finding of fact 9 with the exception that the amount would be taxable which is rejected as not being supported buy competent substantial evidence in the record. Proposed finding of fact 9 is rejected as not being supported by competent substantial evidence in the record. Proposed finding of fact 10 is adopted in substance as modified in finding of fact 12 with the exception that the act was without the knowledge and consent of Pinkerman which is rejected as not being supported by competent substantial evidence in the record. Proposed finding of fact 11 is rejected as not being supported by competent substantial evidence in the record. The first two sentences of proposed finding of fact 14 is rejected as not being supported by competent substantial evidence in the record, not withstanding Pinkerman's testimony. The third sentence is adopted in substance as modified in finding of fact 15. Proposed finding of fact 15 is rejected as not being supported by competent substantive evidence in the record. 8. Proposed finding of fact 17 is not material or relevant to the conclusion reached in the Recommended Order. Also it is unnecessary. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent's proposed findings of fact are set out in eleven numbered paragraphs which addresses each paragraph of the Administrative Complaint and mixes argument, discussion and proposed findings of fact. However, the findings of fact that can be "ferreted out" are adopted in substance as modified in findings of fact 1 through 21. COPIES FURNISHED: Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, FL 32399-0300 James A. Bossart, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Richard Lee Buckle, Esquire 442 Old Main Street Bradenton, Florida 34205
Findings Of Fact Joseph Henton Pelt is qualified as an Ordinary Combination Life, including disability insurance (2-10) and a Disability Insurance Agent (2-40). From 1978 until March 15, 1980 he was licensed by the Florida Insurance Department. In 1979 an Administrative Complaint (Exhibit 2) was filed against Pelt charging numerous violations of Chapter 626, Florida Statutes. A Consent Agreement (Exhibit 3) was entered into between Pelt and the department and, pursuant to that Consent Agreement, the Commissioner of Insurance by Order entered 15 March 1980 (Exhibit 4) suspended Pelt's license for a period of one year from the date of that Order. Paragraph five of Exhibit 4 provided that Respondent shall not, during the period of suspension, engage, directly or indirectly, in any insurance activities in the State of Florida which require a license issued by the department. On June 27, 1980 Respondent called upon Mr. and Mrs. Bronson, who had responded to an advertisement purporting to make insurance policies more beneficial. After discussing the policies Respondent completed the application forms (Exhibits 7 and 8) which Bronson signed, and collected the premium on these policies (Exhibit 9) in the amount of $224.80. On June 24, 1980 Respondent called on Mr. and Mrs. Bryant to discuss insurance. Woodrow Bryant signed an application for insurance and Avie Bryant signed two such applications (Exhibit 11), all filled out by Respondent. They gave Respondent a check for the premiums in the amount of $332.80. These applications were accepted July 9, 1980. On July 1, 1980 Respondent sold a medical insurance policy to John Morris (Exhibit 12) . The application form was completed by Respondent and signed by Morris. The premium payment in the amount of $120.36 was paid by Pinkie Stephens (Morris' wife) to Respondent. The receipt for this $120.36 was signed by William Giles as were all of the other applications. Some checks were endorsed "William Giles Insurance Agency." On August 15, 1980 Respondent met with Ono B. Coons to discuss insurance matters. She was interested in a policy providing for custodial care which Respondent told her could be provided. Respondent prepared applications for three policies subsequently issued by Union Fidelity Life Insurance Company and Ms. Coons gave him a check payable to Union Fidelity Life Insurance Co. in the amount of $679.75. Upon arrival the policies did not cover custodial care. This check was endorsed "Union Fidelity Life Ins. Co." followed by "William Giles" and "Joe H. Pelt" and deposited in Columbia County Bank, Lake City, Florida. Respondent was also charged with having signed William Giles' name on Ms. Coons' applications but no evidence was presented that the signature on those documents was that of Giles. It is noted that Giles' name is signed to all applications admitted into evidence, but only on the applications for Ms. Coons was Respondent charged with placing Giles' signature on the applications without Giles' knowledge or consent.
Findings Of Fact Respondent John Richard Klee is licensed by Petitioner as a disability insurance agent in the State of Florida. At all times material to these facts he has been so licensed. Mr. Klee was employed by the Interstate Insurance Agency for approximately 9 years. During that time Interstate wrote insurance for the Guaranty Trust Life Insurance Company and for the Founders Life Insurance Company. While an independent agent working through the Interstate Agency, Mr. Klee, on April 10, 1981 sold a hospital indemnity insurance policy through the Guaranty Trust Company to Marie D. Grantley. Subsequently, Mr. Klee left the Interstate Agency and began employment with the Diversified Health Insurance Company which writes policies for the American Guaranty Life Insurance Company. After he had begun his new employment, Mrs. Grantley called him in October, 1981 to, get assistance in determining what her benefits were under the Guaranty Trust Company policies. 1/ On October 13, 1981 Mr. Klee went to Mrs. Grantley's home to explain her coverage as it applied to her current medical bills. At that meeting Mr. Klee solicited and received her application for a medicare supplemental policy unwritten by American Guaranty Life Insurance Company. The new policy covered certain expenses such as out-patient medical bills which were not covered by the existing Guaranty Trust policies. During their discussion about the new policy, Mr. Klee explained to Mrs. Grantley that the new policy was to provide her supplemental coverage in addition to that which she already had under the Guaranty Trust policies. He did not tell her that the new policy was a direct replacement of the Guaranty Trust policies. Additionally, he did not tell her that she should cease paying the premium on her Guaranty Trust policies. These findings are the pivotal factual issues in the case. Mrs. Grantley's testimony which was received through a deposition 2/ is to the contrary. Mr. Klee's testimony that he thoroughly explained the coverage of the new policy and how it did not replace the existing Guaranty Trust Life policies is accepted as more credible than Mrs. Grantley's contrary testimony. This determination is based on the demeanor of Mr. Klee at the final hearing and on the apparent weakness of Mrs. Grantley's memory of the transaction as shown in her deposition. When Mr. Klee met with Mrs. Grantley, he gave her all the information she needed to reasonably understand the nature of the new policy she was applying for as it related to her existing policies. He did not represent to her that the American Guaranty Company was in any way related to the Guaranty Trust Company. When Mr. Klee took Mrs. Grantley's application for the American Guaranty Life Insurance policy, he gave her a receipt for three months' premium of $206.65. The receipt indicated that Mr. Klee is with the Diversified Health Agency and that the policy was to be issued by American Guaranty Life Insurance Company. Mrs. Grantley signed the American Guaranty Life Insurance Company application which indicated that the new coverage being applied for did not replace existing accident and sickness policies then in force. At the time Mrs. Grantley signed the application, Mr. Klee reasonably believed that she understood what she was doing. The check which Mrs. Grantley drew to pay for the first three months' premium on the new policy was made out to Diversified Health Services. Subsequent to her application for the American Guaranty Life policy, Mrs. Grantley called Mr. Gerald Schectman who had been Mr. Klee's supervisor at the Interstate Insurance Agency. She told Mr. Schectman that she was confused about her insurance coverage. Several days later, Mr. Schectman went to visit her at her home. She told him that she wanted to retain her original coverage purchased through the Interstate Agency and did not want the new American Guaranty Policy. As she recalled her transaction with Mr. Klee, she believed that he had told her that Guaranty Trust Life Insurance Company was being taken over by the American Guaranty Company or that they were otherwise the same company. When Mr. Schectman heard her version of Mrs. Grantley's transaction with Mr. Klee, he took her to the Insurance Commissioner's Office to file a complaint against the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a Final Order dismissing the Amended Administrative Complaint filed against John Richard Klee. DONE and RECOMMENDED this 1st day of June, 1983, in Tallahassee, Florida. MICHAEL P. DODSON 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 1st day of June, 1983.
Findings Of Fact The Respondent, Russell Lynn Tull, became licensed in this state as a general lines agent on January 21, 1989. At the time of the events which gave rise to the Administrative Complaint, the Respondent was not licensed as an insurance agent. At all times pertinent to the Administrative Complaint, the Respondent was employed by Cecil Powell and Company of Jacksonville, Florida, in its surety bond department. Cecil Powell and Company was authorized to underwrite performance surety bonds on behalf of Transamerica Insurance Company. On or about September 20, 1988, Embry/Burney, Inc. (hereafter E/B) of Fernandina Beach, Florida, entered into a construction contract with C and W Systems of Jacksonville, (hereinafter C and W), pursuant to which C and W agreed to build certain improvements for E/B within a development located in Nassau County, Florida. The construction contract provided that E/B, as owner, would pay C and W, as contractor, the sum of $765,668 upon completion of the project, and further that C and W would provide a performance bond in the amount of the contract. On or about September 20, 1988 and pursuant to contract, E/B provided a check in the amount of $15,232 payable to C and W as full payment on the premium for the performance bond on the construction project. On or about October 20, 1988, E/B received a performance bond from C and W in the amount of $765,668 to ensure completion of the construction contract. The performance bond was received by W. H. Burney, Jr., in behalf of E/B. The performance bond listed William Whiddon, Paul Chauncey, and the Respondent as personal sureties on the performance bond. Whiddon and Chauncey were the principals in C and W Contracting. When W. H. Burney, Jr. received the personal surety bond he asked Chauncey and Whiddon where they had obtained it. Burney was told by Chauncey that it was obtained through Cecil Powell and Company. Chauncey also told Burney that the Respondent was a Vice-President with Cecil Powell and Company. (The preceding is a hearsay statement included in these findings to explain the state of mind of W. H. Burney, Jr. as stated below.) C and W gave the check provided by E/B for the performance bond to the Respondent who deposited the $15,232 to his personal account. C and W presented the personal surety bond to the local government to meet its requirements for participation. W. H. Burney, Jr. knew that the surety bond which he received was a personal surety bond from Whiddon, Chauncey, and the Respondent; however, Burney thought that their personal obligations had been re-insured by Transamerica based upon statements he received from Chauncey. W. H. Burney, Jr., never spoke to the Respondent in person. All of his conversations with the Respondent were by telephone. Burney testified that the Respondent told him that the re-insurance was through Transamerica Insurance Company; however, his testimony on this point was not deemed to be credible. (Not accepted as Finding of Fact.) 1/ Subsequently, W. H. Burney, Jr. received a letter on the stationery of Cecil Powell and Company, Petitioner's Exhibit No. 5, which reinforced Burney's misconception that Chauncey, Whiddon, and Tull had re-insured the project through Transamerica Premier Insurance Company. Neither Transamerica nor any other company wrote any insurance guarantying the performance of the contract by C and W. On or about April 13, 1988, C and W failed to complete the work as required by the contract, and the contract was declared in default. After the default on the contract, Joel E. Embry contacted the Respondent at Cecil Powell and Company and discussed with him the default, the need to activate the bond, and the need to hire a new contractor to complete the work. Embry suggested two contractors to the Respondent which the Respondent indicated were acceptable. Embry hired a contractor to complete the work, and provided a copy of the new contract to Cecil Powell and Company. When the new contractor submitted a bill for completion of a portion of the work, he submitted these bills to Cecil Powell. When the bills were not paid, Embry made arrangements to meet with the Respondent and with Fitzhugh Powell. Embry met with Fitzhugh Powell at Cecil Powell and Company to discuss the nonpayment of the bills. At that meeting, Embry presented Fitzhugh Powell a copy of the letter from Cecil Powell and Company referencing Transamerica's insurance of the project (Petitioner's Exhibit 5). Fitzhugh Powell investigated internally and determined that neither Cecil Powell and Company nor Transamerica had provided any surety on the contract. Fitzhugh Powell's investigation revealed that the Respondent had received the monies paid for the surety bond, and had, with Chauncey and Whiddon, become a personal surety upon the contract. It was the opinion of Fitzhugh Powell, a licensee with over 30 years of experience in the insurance business and principal officer of a major insurance agency, that the Respondent had not insured the contract by agreeing to act as personal surety on the contract. However, Powell discharged the Respondent for acting as personal surety on the C and W contract. When Tull, Whiddon, and Chauncey were unable to cover the losses on the contract, E/B suffered significant financial losses which resulted in a loss of business reputation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department take no action against the Respondent's license. DONE and ENTERED this 14th day of December, 1992, in Tallahassee, Florida. STEPHEN F. DEAN 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 14th day of December, 1992.
