Findings Of Fact Respondent, Roma Roberts Caffey, is currently licensed and eligible for licensure and appointment in this state as an insurance agent. She has been so licensed since 1988. On December 2, 1988, Respondent was employed as a debit agent for American General Life and Accident Insurance Company and Gulf Life Insurance Company. Pursuant to her employment, Respondent entered into a field representative employment agreement with American General Life and Accident Insurance Company/Gulf Life Insurance Company. The agreement required Respondent "to hold all monies collected or received on behalf of the company in a fiduciary capacity, and to pay over all said monies to the company at the times designated by its authorized officers and employees, or immediately upon request." Part of Respondent's responsibilities as a debit agent was to collect premium monies from insureds on a periodic basis. At the time she collected a premium from an insured, Respondent would indicate the payment in that insured's premium/receipt book. The premium receipt book is kept by the insured. Respondent was assigned to service the Perry district and proceeded to collect premiums from insureds in that district. During her tenure as a debit agent, Respondent would use one insured's premium to pay for another insured's insurance. Respondent utilized these funds without the knowledge or consent of the insured who had paid his or her premium for his or her policy. Respondent admitted her handling of the premiums she collected, but felt compelled to use those funds in such a manner in order to keep her lapse ratio down. The lapse ratio was important to the company. Additionally, Respondent did not keep any records of the premiums she used on another insured's account. This conduct demonstrated that Respondent did not understand the very fundamentals of her relationship and duty to the insured and her employer and was generally not fit to engage in the business of insurance for which she was licensed and lacked a reasonable level of knowledge and skill about the area of insurance for which she was licensed. Respondent's conduct also demonstrated she misappropriated several insureds' money and otherwise acted dishonestly in the debit insurance business. All of the above are very serious violations of Chapter 626, Florida Statutes. On May 7, 1990, Respondent's employment with American General Life and Accident Insurance Company/Gulf Life Insurance Company was terminated. After Respondent's termination, an audit of Respondent's debit accounts was conducted by American General Life and Accident Insurance Company/Gulf Life Insurance Company. The audit of Respondent's debit accounts consisted of a review of records submitted to the company by the agent and a comparison of those records with premium receipt books which were maintained by the individual policyholders. The audit of Respondent's activities confirmed that Respondent had improperly used premiums paid to her by numerous insureds and that she had failed to hold those monies in a fiduciary capacity and forward those premium monies to American General Life and Accident Insurance Company/Gulf Life Insurance Company as required. At that time the amount of money which Respondent was short was approximately $2,421.22. The shortage has since been reduced to $1,137.71 by application of Respondent's cash bond and final paychecks. Again, Respondent's failure to account for these premiums constituted very serious violations of Chapter 626, Florida Statutes. The amount due the company was not reimbursed by Respondent and on April 24, 1991, was reduced to a final judgment against Respondent in the County Court in and for Taylor County. As of the date of the hearing, Respondent had not paid the judgment primarily because she does not have the money.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Department enter a Final Order finding that Respondent's licenses and eligibility for licensure and appointment be revoked. DONE AND ENTERED this 20th day of September, 1991, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 20th day of September, 1991. APPENDIX TO RECOMMENDED ORDER The facts contained in paragraphs 1, 3, 4, 5, 6, 7 and 8 of Petitioner's Proposed Findings of Fact are adopted . The facts contained in paragraphs 2, 9 and 10 of Petitioner's Proposed Finding of Fact are subordinate. COPIES FURNISHED: David D. Hershel, Esquire Department of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Roma Roberts Caffey Route 3, Box 59 Perry, Florida 32347 Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, Esquire General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact Mr. Jewell was employed as a life insurance agent from February, 1977 until June 12, 1978, with Gulf Life Insurance Company. During his employment as a "debit agent" with Gulf Life, Mr. Jewell misappropriated $1,363.77 of premiums from the company policyholders for his own use. His defalcation was discovered by the company in May of 1978, and as a result his employment was terminated. Part of his job as a debit agent included collecting premiums from the company's policyholders on a periodic basis. He was then to forward these premiums to Gulf Life. An audit of his books by Gulf Life in May of 1978 revealed that he was in fact misappropriating the funds. When confronted with the facts he was cooperative in establishing the amount of the defalcation. He made however, no attempt at restitution. On October, 1979 Gulf Life wrote a letter to him stating that he had a deficiency in his accounts and demanded payment therefor. The letter did not state the amount owed. Mr. Jewell still made no attempt to pay the amount due even though as early as June, 1979, he knew from a partial audit that his accounts were at least $700.00 short. Thereafter Mr. Jewell was sued by Gulf Life in Circuit Court for the misappropriated funds and a default judgement was obtained against him in May, 1979 for more than $1,300.00. There is still approximately $600.00 owing on the judgement. In the last nine months prior to the hearing Mr. Jewell has been employed by Reserve Life Insurance Company. He was hired as a manager-trainee and then promoted to be the district manager for the company's Merritt Island Office. It is the policy of Reserve Life that its district managers must spend at least 30 percent of their time in direct insurance sales while devoting the balance of their time to managerial duties. If Mr. Jewell's insurance license is suspended or revoked, he could possibly lose his position with Reserve Life because of the 30 percent sales rule. Since he has worked for Reserve Life his employer has been well pleased with his performance. His office has produced a remarkable amount of new business. His present supervisor, Mr. Patrick Anthony, thinks very highly of Mr. Jewell's integrity and character. He appeared on Respondent's behalf at the instant final hearing. While he may have mentioned having had some kind of a problem at Gulf Life, it does not appear that Mr. Jewell was completely candid about the nature or the extent of his defalcation at the time he was hired by Mr. Anthony for Reserve Life.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Insurance, suspending the license of Gary Thomas Jewell to represent an insurance company as an agent for the period of three (3) months beginning from the date of the final order DONE and ENTERED this 8th day of July, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904)488-9675 COPIES FURNISHED: L. Terry Coggin, Esquire Department of Insurance Larson Building Room 428-A Tallahassee, Florida 32301 Fred D. Leone, Esquire 3017 Riveredge Boulevard Suite 108, Riveredge Plaza Post Office Box 1536 Cocoa, Florida 32922
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in the Administrative Complaint, except as to those parts which allege she converted funds to her own personal use, and that her license as an ordinary life, including disability agent and general lines agent be suspended for one (1) year. DONE and ENTERED this 29th day of July, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 29th day of July, 1983 COPIES FURNISHED: Dennis S. Silverman, Esquire and Susan Koch, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 Hugh T. Handley, Esquire 213 South Alcaniz Street Pensacola, Florida 32501 The Honorable Bill Gunter Insurance Commissioner & Treasurer The Capitol, Plaza Level Tallahassee, Florida 32301
Findings Of Fact At all times material to this action, the Petitioner, Randall Petersen, was a duly-authorized life and health insurance agent. The Petitioner was employed by Gulf Life Insurance Company. Petitioner was one of Gulf Life's most productive agents during the time of his employment with the company. Petitioner resigned form his employment in 1989. Count I of the Administrative Complaint charged Petitioner with violating Section 626.561(1), Florida Statutes, by failing to properly handle money given him by Helen Hinson and her husband; violating Section 626.611(5), Florida Statutes, by willfully misrepresenting an insurance policy or annuity to the Hinsons; violating Section 626.611(7), Florida Statutes, by demonstrating a lack of fitness or trustworthiness to engage in the business of insurance; violating Section 626.611(8), Florida Statutes, by demonstrating a lack of reasonably adequate knowledge and technical competence to engage in the transaction he concluded with the Hinsons; violating Section 626.611(9), Florida Statutes, by committing fraud or dealing dishonestly regarding the Hinsons; violating Section 626.611(10), Florida Statutes, by misappropriating, converting or unlawfully withholding the Hinsons' monies; violating Section 626.611(13), Florida Statutes, by willfully violating a rule or order of the Department; violating Section 626.621(2), Florida Statutes, by violating any statutory provision related to the business of insurance; and violating Section 626.621(5), Florida Statutes, by committing an act of twisting, as defined in Section 626.9541(1)(6), Florida Statutes, in regards to Petitioner's dealings with the Hinsons. All of these alleged violations arose from one transaction involving Helen Hinson and her husband. Prior to 1986, Mr. and Mrs. Hinson had insurance coverage with Gulf Life. The Hinson's had purchased their earlier insurance coverage prior to Petitioner's employment with Gulf Life. Petitioner took over the Hinsons' account after he joined Gulf Life. The Hinsons also had an IRA with New England Life Insurance. In an effort to consolidate their insurance needs with one company, the Hinsons closed their IRA with New England Life. The Hinsons received two (2) checks from New England Life Insurance for their IRA. They wanted to do something with the money which would be beneficial to them, estate, investment and tax-wise. Their idea was to create something similar to an IRA. Mr. Petersen arranged a visit and consultation with Tom Saita, the Gulf Life Home Office Representative and the company's expert in the area of investment insurance planning. This area of insurance planning can be a very complicated area for lay persons and general agents, like Petitioner, not familiar with tax and planning strategies. A specialist like Mr. Saita is often required. Mr. Saita was to assist Mr. Petersen in going over the Hinson's insurance needs. Various insurance plans were discussed and Mr. Saita recommended a Universal Life Policy for the Hinsons. Mr. Saita made the sales presentation, along with Mr. Petersen and received a 16% sales commission. Mr. Saita testified that he was very comfortable with the Hinsons' understanding of the sales presentation. The Hinsons decided to go ahead with Mr. Saita's recommendations. An Application for Universal Life was taken and a required medical examination was obtained. The policies were issued and the premiums paid. Part of the premiums were paid with the two IRA checks from New England Life. Approximately two (2) years later, Mr. Petersen was contacted by Mrs. Hinson regarding information on their IRA. Mr. Petersen advised Mrs. Hinson that she did not have an IRA, but rather, had Universal Life Insurance. Mrs. Hinson testified that she thought they had purchased an IRA. She also knew that they had Universal Life. She thought the transaction they had completed two years earlier was a roll-over of their IRA into another IRA. Mrs. Hinson acknowledged that she either did not understand the sales presentation, or the agents (Petersen and Saita) did not understand what they wanted. The evidence established that the Hinsons' transaction and subsequent dissatisfaction was the result of miscommunication and misunderstandings between the Petitioner, Saita and the Hinsons. The transaction did not involve any misrepresentations on Petitioner's part. Neither did the Petitioner willfully try to cheat the Hinsons or mishandle their money. Both Mr. Petersen and Mr. Saita tried to resolve the problems the Hinsons were having. Eventually, Gulf Life refunded all of the cash value that was paid into the Universal Life Policy. Based on the foregoing, the Department has failed to sustain its burden of proof with regard to the allegations of Count I of the Administrative Complaint. Petitioner properly called in an expert in the area of investment insurance planning. The expert primarily handled the details of the Hinsons' insurance plan. As indicated earlier, the evidence demonstrated that the parties simply had a misunderstanding. Such a misunderstanding falls short of establishing any of the charges alleged in Count I of the Administrative Complaint. Therefore, Count I of the Administrative Complaint should be dismissed. Count II of the Administrative Complaint charged Petitioner with violating Section 626.561(1), Florida Statutes, by failing to properly handle money given him by Halen and Mary Stroud; violating Section 626.611(5), Florida Statutes, by willfully misrepresenting an insurance policy to the Strouds; violating Section 626.611(7), Florida Statutes, by demonstrating a lack of fitness or trustworthiness to engage in the business of insurance; violating Section 626.611(8), Florida Statutes, by demonstrating a lack of reasonably adequate knowledge and technical competence to engage in the transaction he concluded with the Strouds; violating Section 626.611(9), Florida Statutes, by committing fraud or dealing dishonestly regarding the Strouds; violating Section 626.611(10), Florida Statutes, by misappropriating, converting or unlawfully withholding the Strouds' monies; violating Section 626.611(13), Florida Statutes, by willfully violating a rule or order of the Department; violating Section 626.621(2), Florida Statutes, by violating any statutory provision related to the business of insurance; and violating Section 626.621(5), Florida Statutes, by committing an act of twisting, as defined in Section 626.9541(1)(6), Florida Statutes, in regards to Petitioner's dealings with the Strouds. All of these alleged violations arose from one transaction involving Halen Stroud and Mary Stroud. Halen Stroud is the father of Mary Stroud. Both Halen and Mary Stroud are sight-impaired individuals. Halen Stroud is an elderly gentleman. Mary Stroud appeared to be easily confused. Halen and Mary Stroud had existing insurance with Gulf Life. Mr. Petersen collected premiums from them on a monthly basis. An agent from Independent Life told Mr. Stroud that "he had money available in his Gulf Life policies and that he could put that money into Independent Life policies". Although it is uncertain what terminology this Independent Life agent used, it appears he was referring to the cash value of the Gulf Life life insurance policies the Strouds already had. Sometime around 1986 or 1987 and after being prompted by his earlier conversation with the Independent Life agent, Mr. Stroud contacted Petitioner regarding consolidation of his existing insurance, as well as purchasing additional insurance. Mr. Petersen explained that the Strouds could take out loans on the existing cash value of their Gulf Life policies and then purchase additional insurance with the loan proceeds. When the new policies were issued, the old ones could then be cancelled. Both the Strouds dispute that Mr. Petersen explained that the transaction involved a "lien" against the Strouds' policies. Neither Stroud indicated in their testimony whether "loans" of the cash surrender values had been discussed. The better evidence indicates that such loans were discussed since Mr. Stroud and his daughter signed a policy and loan application. When Mr. Stroud received notice of the loans and liens from Gulf Life, he did not know if he wanted to follow through on the transaction and wanted to think about it further. Mr. Petersen and his sales manager, Edward Agerton, met with the Strouds to re-explain the transaction. Mr. Stroud told Mr. Agerton that he did not sign any loan forms or buy any additional insurance. However, the signatures on the policy and loan applications were the Strouds' signatures. Mr. Stroud wanted to think about the transaction some more because he wasn't sure he wanted the policy. His concern centered on the new policies' expense and the lien. Approximately two (2) months later, Mr. Petersen delivered the policies to Mr. Stroud so that he could examine them. Mr. Stroud called Mr. Petersen and said he had decided he did not want the new coverage. Eventually, the entire transaction was rescinded by Gulf Life and the Strouds returned to the status quo. The evidence is unclear on exactly what Mr. Petersen explained to the Strouds about the consolidation of their insurance and the increase in the amount of their insurance. In this case, it does not appear that there was any misrepresentation by Mr. Petersen, but that either the Strouds did not understand the transaction or that a portion of the transaction was not explained to them by Mr. Petersen. The evidence supports the fact that Mr. Stroud and his daughter signed both the policy applications and policy loan forms and that this transaction was the standard method by which an insured can use the cash value in old policies to purchase more insurance. It appears from the evidence that Mr. Stroud had second thoughts and changed his mind regarding the transaction. None of these actions constitute a violation of Chapter 626, Florida Statutes, or constitute clear and convincing evidence of any of the alleged violations contained in the Administrative Complaint. Therefore, Count II of the Administrative Complaint should be dismissed. Count IV of the Administrative Complaint charged Petitioner with violating Section 626.561(1), Florida Statutes, by failing to properly handle money given him by Reba Hammontree or on behalf of Reba Hammontree; violating Section 626.611(5), Florida Statutes, by willfully misrepresenting a replacement health insurance policy that was purchased by Reba Hammontree; violating Section 626.611(7), Florida Statutes, by demonstrating a lack of fitness or trustworthiness to engage in the business of insurance; violating Section 626.611(8), Florida Statutes, by demonstrating a lack of reasonably adequate knowledge and technical competence to engage in the transaction involving Reba Hammontree; violating Section 626.611(9), Florida Statutes, by committing fraud or dealing dishonestly regarding Reba Hammontree; violating Section 626.611(10), Florida Statutes, by misappropriating, converting or unlawfully withholding the money given him either by Reba Hammontree or on behalf of Reba Hammontree; violating Section 626.611(13), Florida Statutes, by willfully violating a rule or order of the Department; violating Section 626.621(2), Florida Statutes, by violating any statutory provision related to the business of insurance; and violating Section 626.621(5), Florida Statutes, by committing an act of twisting, as defined in Section 626.9541(1)(6), Florida Statutes, in regards to Petitioner's dealings with Reba Hammontree. All of these alleged violations arose from one transaction involving Reba Hammontree and her father. In 1986, Reba Hammontree and her father, Steven Flores, maintained two policies of health insurance with Gulf Life. Mr. Flores paid the premiums for Reba Hammontree. Mr. Petersen collected these premiums from Mr. Flores on a monthly basis. At some point in time, the existing major medical coverage on Ms. Hammontree lapsed from non-payment of the premiums. This lapse was not shown to be due to any actions on Petitioner's part. Later, Mr. Petersen was advised by Mr. Flores that his daughter wanted to talk to him about purchasing health insurance coverage. Mr. Petersen left the policy with Mr. Flores so that Ms. Hammontree could examine it. He also left an application for such insurance. Mr. Petersen later picked up the application. The application had been completed and was signed with the name "Reba Hammontree". The signature turned out not to be the signature of Reba Hammontree. In fact, the appearance of the signature on the application was not even close to the appearance of Reba Hammontree's signature. However, the signature on the application was not shown to be the handwriting of the Petitioner, and it remains a mystery as to whose hand signed the name "Reba Hammontree". It did not appear from the evidence that either Mr. Petersen or Gulf Life had any way of knowing that the signature on the application was not Ms. Hammontree's signature. Based on the signed application, the policies were issued by Gulf Life. Premiums were paid for over one (1) year on the replacement policy by Ms. Hammontree's father. After that year, Ms. Hammontree's business was transferred out of Mr. Petersen's account. In submitting the application to Gulf Life, Respondent signed the application in the space titled "Witness (Agent)." Petitioner also signed a portion of the application titled "Agent's Report." The Agent's Report included the following boilerplate representation: I do warrant that I have personally seen the Proposed Insured on the date this application was signed and that I have properly asked the questions, recorded the answers, witnessed the signature, and where required by state law, delivered an outline of coverage. ... Clearly, Petitioner did not see Ms. Hammontree on the date the application was signed or witness the signing of the application. At best, the Department established that Petitioner did not follow the underwriting procedures of Gulf Life by allowing a customer to sign an application outside his presence. The evidence did not show that permitting a customer to sign an application in such a manner is indicative of a lack of knowledge, skill, or trustworthiness on the part of an agent. Likewise, given the fact that the application was left with Ms. Hammontree's father and that it was completed prior to Mr. Petersen's return to pick up the application from the policy payor, Ms. Hammontree's father, the evidence did not show that the Petitioner's failure to witness Ms. Hammontree's signature would have been material to Gulf Life in issuing the policy. Therefore it cannot be said that the Petitioner's misrepresentation in signing such boilerplate language that such events occurred was a misrepresentation of a material fact. Moreover, the fact that the referenced statement in the Agent's Report is boilerplate language, it may be inferred that the specifics of such language are quickly forgotten and Petitioner did not sign the Agent's Report intending to make the representations contained in it. Petitioner's actions only demonstrate a concern for the convenience of his customers. Given these facts and absent clear statutory authority, such violation of a private company's underwriting policies does not constitute a violation of any of the provisions of Chapter 626, Florida Statutes. Ms. Hammontree claims that Mr. Petersen took out policies on her without her authority. She denied signing the policy application. She also denied authorizing anyone else to sign her name to the application. She disavows any knowledge of the new coverage. Although Ms. Hammontree denies any knowledge of the replacement insurance coverage, the facts demonstrate otherwise. She denied holding any conversation with Mr. Petersen prior to 1987. However, she wrote a letter, dated March 3, 1989, to the Insurance Commissioner and referenced a meeting with Mr. Petersen in 1986. The referenced 1986 meeting regarded updating her insurance. In the letter, she referenced the new coverage. She also filed a claim on the new coverage and received a check from Gulf Life. Based upon the foregoing, the Department has failed to present clear and convincing evidence that Petitioner violated any provisions of Chapter 626, Florida Statutes. Therefore, Count IV of the Administrative Complaint should be dismissed. Count V of the Administrative Complaint charged Petitioner with violating Section 626.561(1), Florida Statutes, by failing to properly handle money given him by Gary Ard; violating Section 626.611(5), Florida Statutes, by willfully misrepresenting an insurance policy to Mr. Ard; violating Section 626.611(7), Florida Statutes, by demonstrating a lack of fitness or trustworthiness to engage in the business of insurance; violating Section 626.611(8), Florida Statutes, by demonstrating a lack of reasonably adequate knowledge and technical competence to engage in the transaction he concluded with Mr. Ard; violating Section 626.611(9), Florida Statutes, by committing fraud or dealing dishonestly regarding Mr. Ard; violating Section 626.611(10), Florida Statutes, by misappropriating, converting or unlawfully withholding Mr. Ard's money; violating Section 626.611(13), Florida Statutes, by willfully violating a rule or order of the Department; violating Section 626.621(2), Florida Statutes, by violating any statutory provision related to the business of insurance; and violating Section 626.621(5), Florida Statutes, by committing an act of twisting, as defined in Section 626.9541(1)(6), Florida Statutes, with regard to Petitioner's dealings with Mr. Ard. All of these alleged violations arose from one transaction involving Mr. Ard. Mr. Ard is a self-made businessman. He owns and operates his own paint and body shop business. The evidence showed that Mr. Ard does not read well and does not handle the details regarding his insurance coverage. Such details were left to Mr. Ard's wife, now x-wife. Mr. Ard is very talkative and does not listen very well. It can be inferred that Mr. Petersen had some difficulty in communicating with Mr. Ard. Mr. Petersen was the Gulf Life Insurance agent for Mr. Ard. Mr. Ard had existing insurance coverage with Gulf Life. Mr. Ard requested Mr. Petersen to review his existing life policy regarding an increase in coverage. Mr. Ard needed additional life insurance to use as collateral for a bank loan on his paint and body shop business and to replace a Provident Life insurance policy. A medical examination was arranged for Mr. Ard, and it was determined that he had high blood pressure. The policy was issued with a rated premium. A policy amendment was issued for $200,000.00. Mr. Petersen delivered the amendment to Mr. Ard's wife. He returned approximately four (4) days later and picked up the signed amendment. The signature on the amendment said "Gary Ard". However, the signature was not Mr. Ard's. The signature's appearance was very close to the appearance of Mr. Ard's true signature. Again, as with Ms. Hammontree, the fake signature was not shown to be Petitioner's handwriting. To say the least, Mr. Ard's testimony was very confusing and difficult to follow. He identified the $50,000.00 policy. He testified that the signature on the application looked like his, but he did not know for sure. He denied the signature on the policy amendment. He further stated that he was not familiar with the $200,000.00 additional coverage and did not authorize anyone to sign his name to the amendment. He then states that he signed the policy application, without the amendment, but goes on to say that he could not remember signing the application. Mr. Ard's confusion very likely is due to the fact that he left the details of such transactions to his wife, who is now Mr. Ard's ex-wife. Moreover, Mr. Ard's testimony, when compared to other evidence submitted to the Department in its investigation, substantially conflicts in material respects. Given Mr. Ard's nature and his very confusing and conflicting testimony, it is impossible to make any material findings regarding the allegations contained in Count V of the Administrative Complaint. Therefore, the Department has failed to establish clear and convincing evidence with regard to the allegations contained in Count V of the Administrative Complaint, which Count should be dismissed. Count VI of the Administrative Complaint charged the Petitioner with violating Section 626.561(1), Florida Statutes, by failing to properly handle money given him by Aubrey Johnson; violating Section 626.611(5), Florida Statutes, by willfully misrepresenting an insurance policy or annuity to Mr. Johnson; violating Section 626.611(7), Florida Statutes, by demonstrating a lack of fitness or trustworthiness to engage in the business of insurance; violating Section 626.611(8), Florida Statutes, by demonstrating a lack of reasonably adequate knowledge and technical competence to engage in the transaction he concluded with Mr. Johnson; violating Section 626.611(9), Florida Statutes, by committing fraud or dealing dishonestly regarding Mr. Johnson; violating Section 626.611(10), Florida Statutes, by misappropriating, converting or unlawfully withholding Mr. Johnson's money; violating Section 626.611(13), Florida Statutes, by willfully violating a rule or order of the Department; violating Section 626.621(2), Florida Statutes, by violating any statutory provision related to the business of insurance; and violating Section 626.621(5), Florida Statutes, by committing an act of twisting, as defined in Section 626.9541(1)(6), Florida Statutes, with regard to Petitioner's dealings with Mr. Johnson. All of these alleged violations arose from one transaction involving Mr. Johnson. Mr. Petersen was contacted by Mr. Johnson to review his life insurance and annuity coverage because he had $40,000.00 to invest. Mr. Petersen advised Mr. Johnson that he would arrange a meeting with Tom Saita, the Gulf Life Home Office Representative. A meeting was held with Mr. Johnson, his secretary, Mr. Petersen and Tom Saita. Mr. Saita made the sales presentation and discussed a universal life contract on Mr. Johnson. Mr. Saita testified that he was comfortable with Mr. Johnson's understanding of the sales presentation. A universal life policy was sold and issued by Gulf Life. Mr. Johnson testified that he had several meetings with Mr. Peterson and met twice with Mr. Saita, before he made his decision to invest with Gulf Life. His bookkeeper was also present during one (1) of the meetings with Mr. Saita. Mr. Johnson testified that he was told by Mr. Petersen that he could invest his money with Gulf Life and be able to withdraw the full amount at anytime, without a penalty. 1/ Mr. Petersen denied that he made this statement and testified that he told Mr. Johnson that the money could be withdrawn, within thirty (30) days, without a penalty. The thirty-day grace period for withdrawal was a true representation by Mr. Petersen. The evidence does not clearly and convincingly demonstrate that the Respondent willfully misrepresented this transaction to Mr. Johnson. Given the representations testified to by the Respondent and Mr. Johnson and the multiple meetings between the Respondent, Mr. Johnson and Mr. Saita, the more probable interpretation of the evidence is that Mr. Johnson misunderstood what Mr. Petersen said about the thirty-day grace period. Additionally, the facts and circumstances involved in Petitioner's transaction with Mr. Johnson were similar to the facts involved in Petitioner's dealings with the Hinsons. The same factual conclusions are reached in Petitioner's transaction with Mr. Johnson. Therefore, the Department has failed to sustain its burden of proof, as to the allegations contained in Count VI of the Administrative Complaint and Count VI of the Administrative Complaint should be dismissed. Count VII of the Administrative Complaint charged the Respondent with violating Section 626.561(1), Florida Statutes, by failing to properly handle money given him by Ms. Tugwell on behalf of her daughter, Janet Iturriaga; violating Section 626.611(5), Florida Statutes, by willfully misrepresenting an insurance policy to Ms. Tugwell; violating Section 626.611(7), Florida Statutes, by demonstrating a lack of fitness or trustworthiness to engage in the business of insurance; violating Section 626.611(8), Florida Statutes, by demonstrating a lack of reasonably adequate knowledge and technical competence to engage in the transaction he concluded with Ms. Tugwell; violating Section 626.611(9), Florida Statutes, by committing fraud or dealing dishonestly regarding Ms. Tugwell; violating Section 626.611(10), Florida Statutes, by misappropriating, converting or unlawfully withholding Ms. Tugwell's money; violating Section 626.611(13), Florida Statutes, by willfully violating a rule or order of the Department; violating Section 626.621(2), Florida Statutes, by violating any statutory provision related to the business of insurance; and violating Section 626.621(5), Florida Statutes, by committing an act of twisting, as defined in Section 626.9541(1)(6), Florida Statutes, with regard to Petitioner's dealings with Ms. Tugwell. All of these alleged violations arose from one transaction involving Ms. Tugwell. Ms. Tugwell manages the Hilburn Apartments and manages the financial affairs of her daughter, Janet Iturriaga. Ms. Iturriaga is slightly mentally retarded and has a heart condition. In 1987, Ms. Tugwell was shopping for health insurance for the apartment employees and her daughter. She contacted Gulf Life. Ms. Tugwell had existing health insurance coverage on her daughter with Prudential and was paying $471.00 per month in premiums. Mr. Petersen was given the lead on Ms. Tugwell's inquiry and went to see Ms. Tugwell. He explained the available health plans and left an outline of the various types of coverage with Mrs. Tugwell. Mrs. Tugwell called a few days later. Mr. Petersen again visited Mrs. Tugwell at the Hilburn Apartments and upon arrival, saw the daughter, Janet, sitting at the front desk. Mr. Petersen completed the policy applications, with information given to him by Mrs. Tugwell. Some of the information on Ms. Iturriaga's health was incorrect. Ms. Tugwell claims that she told Mr. Petersen the correct information. She states that she told Mr. Petersen that her daughter would be high risk. Mr. Petersen claims that he faithfully recorded the information given to him by Ms. Tugwell. She further states that she did not receive the original policies, despite the fact that she paid the premiums for three (3) years. Mrs. Tugwell took the application, left the room, and returned with the application signed "Janet I Tugwell". Mr. Petersen did not actually see the daughter sign the applications. The signature was not Ms. Iturriage's. However, he had no reason to believe that Ms. Iturriaga did not, in fact, sign the application for insurance. Again, Petitioner signed the Agent's Report portion of the application. The same findings are made in reference to that Agent's Report as were discussed in Ms. Hammontree's case. The policies were thereafter issued by Gulf Life and delivered to Mrs. Tugwell. As with Ms. Hammontree, the appearance of the signature on the application did not resemble Ms. Iturriaga's real signature. Likewise, the signature on the application was not shown to be in Petitioner's handwriting. Ms. Tugwell cancelled her daughter's health insurance with Prudential. She paid the premiums on the Gulf Life policies for approximately three (3) years and also filed a claim for an accidental injury to Janet. Mrs. Tugwell called about her daughter's claim. Mrs. Tugwell was advised that the home office had requested medical records from the hospital. Mrs. Tugwell stated, "Why is it taking so long? There is nothing wrong with my daughter." The claim was initially denied by Gulf Life because two (2) different names were given to the hospital. The name "Tugwell" was listed on the claim form. The claim was eventually paid by Gulf Life and the check was cashed. Ms. Tugwell testified that her daughter's name on the application, "Janet I. Tugwell", was wrong. Her daughter never called herself "Janet I. Tugwell". She always goes by the name of "Janet T. Iturriaga". Therefore, Ms. Tugwell believes that the signature on the application was not her daughter's signature. However, she did not know whether Janet had signed the application. Mrs. Tugwell testified that she had authority to take out insurance on her daughter. She also testified that her daughter did not know that she was taking out new insurance on her. Clearly, Janet did not sign the application if she did not know insurance was being taken out. Ms. Tugwell did occasionally refer to her daughter as "Janet Tugwell", as evidenced by a premium check dated September 1, 1987. The check contains the following legend: "For Janet Tugwell, Policy #8710030". The policy number was the number of the new policies Ms. Tugwell had taken out on her daughter. Clearly, within 8 months of the insurance being taken out, Ms. Tugwell knew her daughter's policy number and knew the policy was under the name of "Janet Tugwell". The only way Ms. Tugwell could have received such information is if she had possession of the new policies or had her daughter's signature placed on the insurance application. In February of 1989, Mrs. Tugwell requested duplicate policies from Gulf Life and to have the name on the policies changed to Janet T. Iturriaga. To change the name on the policies, a policy change form was required. On March 13, 1989, Janet signed the policy change form and ratified the earlier coverage. Janet testified, however, that she did not sign the policy change form. The better evidence establishes that Ms. Ituriaga did sign the policy change form and simply has forgotten that fact. It should be noted that when the duplicate policies came in, Mrs. Tugwell had an agent from another insurance company look them over. The agent allegedly told her that the Gulf Life policies were not worth anything. It was then that Mrs. Tugwell filed her complaint. Mrs. Tugwell had insurance with Gulf Life and paid premiums for approximately three (3) years. She filed claims on the coverage and accepted the benefits. It appears that the reason behind Mrs. Tugwell's complaint seems to be based on the fact that she became dissatisfied with the coverage on her daughter because she had been told that the coverage was worthless. Given the fact that the alleged misrepresentation in regards to Ms. Iturriaga's health, which was in the application, is based upon a swearing match between Mr. Petersen and Ms. Tugwell and the obvious discrepancies in Ms. Tugwell's testimony, there is simply no clear and convincing evidence to sustain a finding that Mr. Petersen made misrepresentations in the policy application or signed Janet Tugwell's name to the policy application. Finally, as with Ms. Hammontree's case, the fact that Petitioner signed the Agent's Report does not clearly and convincingly demonstrate that Petitioner knowingly made any material misrepresentations to Gulf Life, especially since Ms. Tugwell and Iturriaga ratified the coverage. Such ratification eliminates the materiality of the Agent's Report. Therefore, Count VII of the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a Final Order dismissing the Administrative Complaint against the Respondent. It is further RECOMMENDED that Petitioner's application to represent Reserve Life Insurance Company and Pan-American Life Insurance Company be GRANTED. DONE and ENTERED this 9th day of July, 1991, in Tallahassee, Florida. DIANE CLEAVINGER 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 9th day of July, 1991.
Findings Of Fact On September 8, 1987, the Department of Insurance received a letter dated September 1, 1987, from Joseph F. Kinman, Jr., which stated: Another insurance agent (Daniel Bruce Caughey) from Pensacola, Florida and his incorporated agency (Caughey Insurance Agency, Inc.) are refusing to forward premium payments on to Jordan Roberts & Company, Inc. despite a final judgment for such amounts here in Hillsborough County Circuit Court. Enclosed is a copy of the Final Judgment entered August 13, 1987, as well as a copy of the Complaint. We represent Jordan Roberts & Company, as well as Poe & Associates, Inc. here in Tampa, Florida. In approximately August of 1982, Daniel Bruce Caughey and Caughey Insurance Agency, Inc. entered into a brokerage agreement with Jordan Roberts & Company, Inc. wherein Mr. Caughey and the Agency were to collect premiums on behalf of Jordan Roberts & Company, Inc. and in turn, Mr. Caughey and the Agency were to receive commissions. Mr. Caughey signed an Individual Guarantee Agreement on October 21, 1983, guaranteeing that Brokerage Agreement with Caughey Insurance Agency, Inc. Mr. Caughey and the Agency failed to forward the insurance premiums collected on behalf of Jordan Roberts & Company, Inc. despite repeated demands and inquiries. Finally, a lawsuit was filed against Mr. Caughey and the Agency in the Circuit Court of the Thirteenth Judicial Circuit of the State of Florida, in and for Hillsborough County in December of 1986. Final judgment for Jordan Roberts & Company, Inc. against Mr. Caughey and the Agency was entered on August 13, 1987, for an amount of $6,595.94. Mr. Caughey and his Agency have unlawfully withheld monies belonging to an insurer, Jordan Roberts & Company, Inc. and, accordingly, appear to be in violation of Florida Statutes 626 et seq. Jordan Roberts & Company, Inc. has a judgment for unpaid insurance premiums against Mr. Caughey and the Agency, however, Mr. Caughey and the Agency refuse or fail to pay over to Jordan Roberts & Company, Inc. premium funds rightfully belonging to Jordan Roberts & Company, Inc. Accordingly, we would respectfully request that your office conduct an investigation of Mr. Caughey and the Caughey Insurance Agency, Inc. Enclosed with this letter were copies of the complaint and final judgment in the circuit court case, Case No. 86-21454. As found in the main administrative case, Case No. 89-2651: In Count 1, JORO's complaint [in Case No. 86-21454] alleges the existence of a brokerage agreement between JORO and Caughey Insurance Agency, Inc., entered into "[o]n or about April 27, 1982"; execution and delivery of respondent's guarantee "[o]n or about October 21, 1983"; and the agency's indebtedness "for premiums on policies underwritten by [JORO] for the sum of $20,975.36." Petitioner's Exhibit No. 3. In Count II, the complaint also alleges execution and delivery of a promissory note "[o]n or about October 21, 1983," without, however, explicitly indicating its relationship (if any) with the guarantee executed the same date. Petitioner's Exhibit No. 3. The final judgment does not specify which count(s) JORO recovered on. Petitioner's Exhibit No. 4. Attached to the complaint are copies of the promissory note, executed by "CAUGHEY INSURANCE AGENCY, INC., By: D B Caughey Vice President"; the guarantee, executed in the same way; and the brokerage agreement, executed on behalf of Caughey Insurance Agency by "William C. Caughey, President." Although the Individual Guarantee Agreement names respondent as guarantor in the opening paragraph, the corporation is shown as guarantor on the signature line. The complaint does not allege and the judgment does not recite that respondent personally failed to remit premiums but says he is responsible as an officer of the agency. Without any further investigation, as far as the record shows, the Department of Insurance filed a complaint amended on April 24, 1989, to allege, inter alia, that "[o]n or about August 19, 1982 Caughey Insurance Agency, Inc. entered into a brokerage agreement with Jordan Roberts and Company, Inc. . . . requir[ing] Caughey Insurance Agency, Inc. to remit premiums, unearned commissions and additional premiums to Jordan Roberts and Company, Inc."; and that respondent "personally guaranteed the [agency's] obligation under this agreement in" writing, but "failed to remit five thousand five dollars and forty-four cents due under th[e] agreement" for which sum Jordan Roberts and Company, Inc. obtained judgment. After a formal administrative hearing, a recommended order was entered on April 2, 1990, recommending dismissal of the administrative complaint, because "ambiguities in the court papers do not clearly and convincingly rule out the possibility that the court's judgment rests on the dishonored promissory note . . . [rather than] a breach of respondent's [here petitioner's] fiduciary responsibilities." In its final order, the Department dismissed the administrative complaint; Daniel Bruce Caughey was the prevailing party in that case. The parties have stipulated that "Daniel B. Caughey qualifies as a small business party as defined in Section 57.111(3)(d), Florida Statutes." The parties also stipulated that the "total value of the reasonable attorney's fees and costs at issue is $2,830."
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.
The Issue The issue in this case is whether Respondent, Margaret Louise Herget, committed the offenses alleged in an Amended Administrative Complaint issued by Petitioner, the Department of Financial Services, on December 9, 2005, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Financial Services (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the investigation and prosecution of complaints against individuals licensed to conduct insurance business in Florida. Ch. 626, Fla. Stat.1 Respondent Margaret Louise Herget was, at the times relevant, licensed in Florida as a general lines (property and casualty) insurance agent. Ms. Herget's license number is A117083. At the times relevant to this matter, the Department has had jurisdiction over Ms. Herget's insurance licenses and appointments. At the times relevant to this matter, Ms. Herget was the president and a director of A & M Insurance, Inc. (hereinafter referred to as "A&M"). A&M was incorporated in 1991 and has been operating as an insurance agency in Broward County, Florida. At the times relevant to this matter, A&M had a business bank account with Bank Atlantic of Ft. Lauderdale. Ms. Herget has been an authorized signatory on the account since 1998. At the times relevant to this matter, Ms. Herget maintained a contractual relationship with Citizens Insurance Company (hereinafter referred to as "Citizens"), an insurer. Pursuant to this contractual relationship, all applications and premiums for Citizens's products received by Ms. Herget were to be submitted to Citizens within five business days. Albert Herget. Albert Herget,2 Ms. Herget's husband until their marriage was dissolved in September 2003, also maintained a contractual relationship with Citizens. Mr. Herget, who was licensed as a general lines agent by the Department, was appointed by Citizens to write Citizens' property and casualty insurance. Mr. and Ms. Herget were both authorized signatories on A&M's bank account from 1998 until June 2003. Ms. Herget continued as the sole authorized signatory on the account after June 2003. Mr. Herget was also an officer of A&M until October 6, 2003, when he resigned. A&M was named after "Albert" & "Margaret" Herget. The evidence failed to prove that Mr. Herget was under the direct supervision and control of Ms. Herget. The evidence also failed to prove that Ms. Herget knew or should have known of any act by Mr. Herget in violation of Chapter 626, Florida Statutes. Count I: The Camp Transaction. In June 2002 Michael Camp and Rosemary Mackay-Camp went to A&M to purchase hazard, windstorm, and flood insurance. The Camps met with and discussed their needs with Mr. Herget. On or about June 11, 2002, the Camps paid $2,273.97 by check number 365 made out to "A & M Insurance" for "Flood, Wind & Home Insurance." The premium for the windstorm insurance amounted to $1,026.00. The check was given to Mr. Herget and was deposited in A&M's bank account on or about June 12, 2002. On or about June 11, 2002, the Camps were given a document titled "Evidence of Property Insurance," which indicated that they had purchased insurance on their home for the period June 14, 2002, through June 14, 2003. The windstorm insurance was to be issued by Citizens. Initials purporting to be those of Ms. Herget and a stamp of Ms. Herget's name and insurance license number appear in a box on the Evidence of Property Insurance form titled "Authorized Representative." Ms. Herget testified credibly that the initials were not placed there by her.3 There is also a notation, "Paid in Full Ck # 365" and "Albert," written in Mr. Herget's handwriting on the Evidence of Property of Insurance form. Mr. Herget also gave the Camps the note evidencing the receipt of their payment. The Camps, merchant marines, left the country after paying for the insurance they desired on their home and did not return until sometime in 2003. Upon their return they inquired about why their windstorm insurance had not been renewed and discovered that they had never been issued the windstorm insurance coverage they had paid A&M for in 2002. The Camps attempted several times to contact Ms. Herget by telephone. Their attempts were unsuccessful. They wrote a letter of inquiry to Ms. Herget on October 29, 2003. Ms. Herget did not respond to their inquiry. Having received no response to their inquiry of October 29, 2003, Mr. Camp wrote to Ms. Herget on or about December 5, 2003, and demanded that she either provide proof of the windstorm policy the Camps had paid for or refund the premium paid therefor. By letter dated December 11, 2003, Ms. Herget informed Mr. Camp of the following: We have determined that your policy was submitted to Citizen's (Formerly FWUA) and was never issued due to a request for additional information which was not received. Ultimately the application and funds were returned to our agency. Enclosed please find our agency check for 1026.00 representing total refund of premium paid. Please advise if we can be of further assistance. Enclosed with the letter was a full refund of the premium which the Camps had paid for the windstorm insurance they never received. The Camps accepted the refund. While the hazard and flood insurance purchased by the Camps had been placed by A&M, the windstorm insurance had not been placed, as acknowledged by Ms. Herget in her letter of December 11, 2003. A&M's bank records indicate that a check for the windstorm insurance in the amount of $1,026.00 was written to Citizens on or about June 14, 2002, but that the check had never been cashed. Although this explanation appears contrary to the explanation given by Ms. Herget to the Camps in her letter of December 11, 2003, neither explanation was refuted by the Department. More importantly, regardless of why the windstorm insurance purchased by the Camps was not obtained by A&M, the weight of the evidence suggests that the fault lies not with Ms. Herget, but with Mr. Herget, who actually dealt with the Camps. The evidence also proved that it was not until sometime in late 2003 that Ms. Herget learned of the error and, upon investigating the matter, ultimately refunded in-full the amount paid by the Camps. The evidence failed to prove that any demand was made by Citizens for the premium for windstorm paid by the Camps or that she willfully withheld their premium. Count II: The Cipully Transaction. Carol Cipully began purchasing homeowner's insurance from A&M in 1999. In July 2003 Ms. Cipully refinanced her home. She believed that her homeowner's insurance would continue after the refinancing with her current insurance carrier, Citizens, through A&M. First American Title Insurance Company (hereinafter referred to as "First American") handled the closing of the refinancing. First American was responsible for issuing a check to A&M after closing in payment for the homeowner's insurance policy. Closing took place July 23, 2003. By check dated July 30, 2003, First American paid $1,658.00 to A&M for Ms. Cipully's insurance coverage.4 Of this amount, $1,435.00 was for hazard insurance with Citizens and $223.00 was for flood insurance from Omaha Property and Casualty Insurance Company (hereinafter referred to as "Omaha Insurance"). The check was received and deposited in the bank account of A&M on August 4, 2003. An Evidence of Property Insurance form was issued by A&M for Ms. Cipully's insurance on or about July 25, 2003. The form was initialed by Ms. Herget. A month or so after the closing, a water leak, which had caused property damage, was discovered in Ms. Cipully's home. When she attempted to contact her homeowner's insurer she ultimately discovered that the premium payment made by First American had not been remitted to Citizens or Omaha Insurance by A&M and, therefore, she had no homeowner's insurance. Ms. Cipully contacted Ms. Herget by telephone and was assured by Ms. Herget that she had insurance.5 Ms. Cipully's daughter, Tina Cipully, attempted to resolve the problem with Ms. Herget on behalf of her mother. In response to Tina Cipully's inquiries, Ms. Herget, rather than look into the matter herself, informed Tina Cipully that proof need to be provided to her by or on behalf of Ms. Cipully that would prove that a premium check had been sent to A&M from First American. Tina Cipully attempted to comply with Ms. Herget's request, contacting First American. An employee of First American faxed a copy of the cancelled check for $1,658.00 to Tina Cipully.6 A copy of the Evidence of Property Insurance dated July 25, 2003, from A&M was also faxed by First American to Tina Cipully. Tina Cipully sent a copy of the check she received from First American to Ms. Herget. She also sent a copy of a HUD-1 statement. When she later spoke to Ms. Herget, however, Ms. Herget told her she could not read the documents. The evidence failed to prove that Ms. Herget received a legible copy of the check. The copy of the HUD-1 form, while not totally legible, did evidence that $1,658.00 was to be withheld for payment of insurance premiums. Despite the fact that the check in the amount shown on the HUD-1 statement had been deposited in A&M's bank account, Ms. Herget continued to insist that Ms. Cipully prove her entitlement to redress. Had she made any effort, Ms. Herget should have discovered that a check in the amount of $1,658.00 had been deposited in A&M's bank account on August 4, 2003. Three and a-half months after having received the First American check, Citizens, after verifying that First American had paid for hazard insurance on behalf of Ms. Cipully, contacted Ms. Herget and requested payment of Ms. Cipully's insurance premium. Six months after being notified by Citizens, Ms. Herget paid Citizens the $1,435.00 insurance premium A&M had received in August 2003. The payment was made by check dated May 28, 2004. Ms. Herget did not explain why it took six months after being notified that Ms. Cipully had indeed paid her insurance premium to pay Citizens. Omaha Insurance had not been paid the $223.00 premium received by A&M in August 2003 at the time of the final hearing of this matter. Ms. Herget failed to explain why. Count IV: The Parker Transaction. On March 20, 2004, Elric Parker, who previously purchased homeowner's insurance from Citizens through A&M, went to A&M to renew his policy. He gave Ms. Herget a check dated March 20, 2004, for $1,064.00 in payment of six months of coverage.7 Ms. Herget gave Mr. Parker a receipt dated March 20, 2004, for the payment. The check was endorsed by Ms. Herget and deposited into the banking account of A&M on or about March 22, 2004. After waiting approximately three months for the arrival of a renewal policy which Ms. Herget told Mr. Parker he would receive, Mr. Parker became concerned and decided to contact A&M. He was repeatedly assured, at least on one occasion by Ms. Herget, that the renewal policy would be received. Mr. Parker subsequently contacted representatives of Citizens directly and was informed by letter dated January 8, 2005, that his insurance with Citizens had been cancelled in April 2004 for non-payment of the $1,064.00 premium Mr. Parker had paid to A&M. Rather than attempt to resolve the problem with Ms. Herget and A&M, Mr. Parker continued to deal directly with Citizens. After providing proof to Citizens of his payment of the premium to A&M, Citizens offered to issue a new policy effective April 2004 upon payment by Mr. Parker of the second six-month premium or, in the alternative, to apply his payment in March 2004 to a new policy for 2005. Mr. Parker opted to have his payment applied toward the issuance of a new policy providing coverage in 2005. This meant that he had no coverage for most of 2004 and part of 2005. Citizens notified Ms. Herget that the payment she had received from Mr. Parker should be remitted to Citizens. Ms. Herget investigated the matter and, when she confirmed that she had received his payment, paid Citizens $1,064.00 on or about February 10, 2005. Ms. Herget and A&M failed to remit Mr. Parker's insurance premium payment received in March 2004 until payment was made to Citizens in February 2005. That payment was made only after inquires from Mr. Parker and, ultimately, Citizens. While Ms. Herget speculated that Mr. Parker's file was misfiled and not properly processed, the failure to remit Mr. Parker's premium payment for almost a year was not explained by either party. The evidence failed to prove, however, that Ms. Herget failed to remit the premium to Citizens willfully or that she failed to remit the premium once it was determined that A&M had failed to so and demand was made by Citizens.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Margaret L. Herget violated the provision of Chapter 626, Florida Statutes (2003), described, supra, and suspending her license for six months. DONE AND ENTERED this 29th day of June, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 29th day of June, 2006.
