Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Petitioner, Criminal Justice Standards and Training Commission, (Commission), was and is the state agency responsible for the certification of law enforcement officers in this state. The Respondent, Douglas E. Szczepanik, was and is certified in Florida as a law enforcement officer. Late on the evening of August 22, 1988, Respondent was employed as a police officer with the Delray Beach, Florida, Police Department, (Department). While at the hospital with Officer Eberhart collecting a blood specimen from a third person for use in another police matter, he heard a police radio call relating to the hot pursuit of a felony suspect. He and Eberhart went to the scene of the expected apprehension and found that the suspect had been apprehended after a high speed chase by several police cars including one driven by Officer Thomas A. Whatley. It was subsequently determined that the suspect had lost control of his vehicle, a stolen car, and had ended up abandoning it on the city's municipal golf course adjacent to West Atlantic Avenue. He then ran off on foot across the course with Officer Whatley in pursuit in his police cruiser. The suspect ran up a hill and down the other side. Whatley, surmising that the hill was no more than that, and that the other side of the hill was a down slope, drove up the hill after the suspect at a speed of approximately 45 to 50 mph. As he reached the crest, he found that he was on the lip of a sand trap and since he could not stop, his car became airborne, coming to rest some 25 - 30 feet further along, in the sand trap. Though it did not bear significant outward signs of damage, the vehicle was, in fact rendered inoperable as a result of the impact. Fortunately, the suspect was apprehended by other officers on the scene. As a result of the serious nature of the suspect's alleged crimes, suspected murder of an officer and car theft, many Delray Beach officers were involved in the chase and were, therefore, on the scene at the time of the apprehension and Whatley's vehicular mishap, including his Lieutenant, Woods, and his patrol sergeant, then Sergeant Musco. Lt. Woods directed Sgt. Musco to block traffic on Atlantic Avenue and another officer to get the damaged vehicles towed away. He directed Respondent, then at the scene, to write the traffic accident report relating to Whatley's car. There is some indication that initially Woods did not think a report was necessary, but he ultimately became convinced it was and gave the job to Respondent. Since both Respondent and Eberhart were traffic investigators, Eberhart indicated he would do it and Respondent acquiesced. Respondent and Eberhart both discussed the accident and both developed their own theory as to how it happened. Neither, however, bothered to question Whatley who remained at the scene for some time before being directed to resume patrol, using Respondent's cruiser. Even when that was being set up, Respondent did not question Whatley as to what had happened, speaking to him only to caution him not to lose his keys when he turned them over to him. Based on their examination of the scene on Atlantic Avenue, and without even looking at Whatley's vehicle and where it ended up, Eberhart concluded that the accident occurred when the suspect lost control of his vehicle and ran into Whatley's forcing him to lose control and run up the side of and into the sand trap. Had Eberhart bothered to look at the vehicle, he would have seen no body damage consistent with collision. Eberhart was subsequently convinced by Respondent, who did look at Whatley's vehicle, that an alternative theory, indicating that the suspect lost control of his vehicle and prompted Whatley to lose control of his in an effort to avoid a collision, was what happened. In any event, Respondent claims that later that evening, back at Police Headquarters, he saw Whatley attempting to write out his report. Whatley allegedly asked Respondent for help in writing it since he was relatively new to the force and this was his first accident. Respondent also claims that he merely told Whatley the format for the report and the type of information to put in it. He admits that, as an example of what to say, he told Whatley his theory of the accident. When Whatley indicated that was not how it happened, Respondent allegedly told him, then, to write in what did happen as he, Whatley, recalled it, and he denies suggesting that Whatley use his scenario if it was not correct. Whatley, on the other hand, claims that while they were still at the scene of the accident he talked with Respondent and told him what had happened. Respondent supposedly walked around the wreck and then told Whatley to put in his supplement to the accident report that he had been taking evasive action. When Whatley told him that was not the way it happened, Respondent is alleged to have said that the people "upstairs" wanted police accident reports to reflect no fault on the part of the officers. Whatley claims that Sgt. Musco was present at the time but Musco does not profess to have heard that and Respondent categorically denies that Whatley told him at the scene how the accident occurred or that he went to the sand trap to look at the vehicle. In a statement made to Captain Schrader in November, 1988 as a part of the Internal Affairs investigation, Respondent again denied he spoke with Whatley at the accident scene. No evidence was presented by the Petitioner as to what benefit Respondent would gain or what detriment he would avoid by telling Whatley to falsify his supplement. Musco claims that when he first saw Whatley, he appeared depressed about the incident and Musco told him to write it up as it had happened and not to worry about it because he, Musco, was not worried about the car. When Respondent, who Musco had assigned to write up the report, said he was going to show it had happened when Whatley attempted to avoid an accident, Musco told him to write the report honestly as he had been trained to do, and as Whatley had reported it. Musco did not follow up to see if the report or Whatley's supplement thereto was prepared properly. Since he had assigned the duty to a trained traffic/homicide investigator, (Respondent), he presumed it was done correctly. He knows of no policy to falsify reports of police accidents and in fact has had an accident himself, in which he was at fault, and which was written up accurately. Respondent claims that after he spoke with Whatley at Police headquarters and told him to write the report honestly, he left and met Lt. Woods outside. He told Woods that Eberhart was going to write the accident report and that Whatley was going to write his supplement honestly. Woods reportedly responded that was no good because he had already told everyone it had happened because of Whatley's attempt to evade the suspect's car. Because of that, even though Woods did not give him any instructions to do so, Respondent claims he went back inside and told Whatley to write his supplement the way he remembered it. Respondent claims that at no time did he ever tell Whatley to write a false report. He also claims that he never made the statement attributed to him regarding the people "upstairs." He would have nothing to gain or to lose by convincing Whatley to falsify his supplement. After getting advice from Respondent and from Sgt. Musco, Officer Whatley, for some reason, wrote his supplement indicating he had the accident in an attempt to evade the suspect's out of control vehicle. Whatley cites two meetings with Respondent that evening, as does Respondent, but their stories of what transpired differs radically. Whatley claims that Respondent told him to make sure his supplement conformed to what was in Eberhart's report. He did, and when he gave it to Lt. Woods to read, Woods rejected it because it was false and Woods knew it to be false. Woods then told him to hold off on the supplement and about a week later, Whatley was told by Captain Cole to write another supplement which was accurate. Respondent, on the other hand, claims he had little contact with Whatley at the scene of the mishap and denies any direct conversation with him about the accident. All he said, he claims, was, "it doesn't look too bad." Respondent asserts that at no time did Whatley tell him how the accident occurred. Later that evening, when, at the station he saw Whatley writing his report, Whatley asked him for advice as to how to construct and what to put into his supplemental report. Respondent claims he told Whatley to go back and tell the story as it happened. He admits to telling Whatley how he felt the accident occurred but when Whatley said that was not how it was, Respondent again told him to write it as it happened. This whole conversation took no more than a minute or a minute and a half. The only direction he gave Whatley was as to the format of the supplement, not the substance, other than that it be the truth. When, a few minutes later, Respondent saw Woods and told him that Whatley was having trouble, Woods told Respondent how he felt the accident had occurred. At that time, Woods gave Respondent no directions, but Respondent went back into the station and again told Whatley to write up his supplement the way he, Whatley, recalled the accident happening. The following day, according to Respondent, Woods pulled him aside and told him he had just spoken to Major Lincoln who said the report was to be written as Respondent had originally said the accident had occurred, incorrectly. At no time did Respondent speak directly with Lincoln about the accident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case by the Commission dismissing the Administrative Complaint filed against the Respondent. RECOMMENDED in Tallahassee, Florida this 17th day of January, 1992. ARNOLD H. POLLOCK 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 17th day of January, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, regarding the Proposed Findings of Fact submitted by the Petitioner in this proceeding. FOR THE PETITIONER: & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. 6. - 9. Accepted and incorporated herein. - 14. Not phrased as Findings of Fact but more as restatements of testimony. However, the substance of the restatements is correctly stated and has been accepted and incorporated herein. Accepted and incorporated herein. - 18. Accepted and incorporated herein. 19. - 21. Accepted and incorporated herein. 22. & 23. Accepted and incorporated herein as an accurate recitation of Whatley's story. 24. & 25. Again, not phrased as Findings of Fact. Here, however, the substance of Whatley's statement is rejected as not proven. 26. & 27. Rejected as not supported by evidence of record. - 30. Accepted and incorporated herein. Accepted. Rejected as not supported by the evidence. Whatley and Respondent did meet at the station that evening, but the allegation that Respondent told Whatley to falsify his report is not supported by credible evidence. & 34. These are restatements of testimony but are accepted. 35. - 37. An accurate restatement of the testimony, but the testimony is rejected as unsupported. Even Lincoln denied making the statement. 38. - 40. Accepted and incorporated herein. 41. - 43. Accepted and incorporated herein. 44. & 45. Accepted as accurate recitations of the testimony. COPIES FURNISHED: Rodney Gaddy, Esquire Michael R. Ramage, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Charles Salerno, Esquire 242 Plaza Office P.O. Box 1349 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long Director CJSTC Post Office Box 1489 Tallahassee, Florida 32302
The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Earle Anthony Bennett, is now and was at all times material hereto licensed by petitioner as an insurance agent in the State of Florida. Pursuant to Chapter 626, Florida Statutes, petitioner has jurisdiction over the insurance licenses and appointments of respondent. On October 17, 1990, respondent entered into a home service agent's contract with The Independent Life and Accident Insurance Company (Independent Life). Pertinent to this case, such contract provided: Article 1. Description of General Duties The Agent agrees to canvass for insurance, to collect premiums as due on the policies assigned to the agency, to aid in the proper settlement of claims, to keep true records of the business on the books, to forward to the Company on Company forms a true account of each week of the agency, and to give full time to the business of the Company. Article 2. Collections The Agent agrees to pay over all monies collected to the District Sales Manager or to such other person as the Company may direct. No money shall be retained by the Agent out of collections for any purpose. The agent agrees that should legal proceedings be necessary to collect monies due from the Agent to the Company the Agent shall pay legal costs and a reasonable attorney's fee. * * * Article 37. Indebtedness Due Company The Company may use any commissions, vacation pay, or other compensation due the Agent to reimburse itself for any indebtedness due the Company by the Agent. In November 1991, respondent terminated his employment with Independent Life, and Independent Life notified petitioner of the cancellation of respondent's appointment as one of its insurance agents. Thereafter, on November 7, 1991, Independent Life conducted an audit of respondent's account which revealed a deficiency of $1,613.70 in insurance premiums collected by respondent and not remitted to the company. Subsequent audits in November reflected an additional deficiency of $213.62, in December an additional deficiency of $178.84, and in February 1992, an additional deficiency of $43.48. By letters of November 18, 1991, November 21, 1991, December 2, 1991, December 13, 1991, and March 18, 1992, Independent Life made demand upon respondent to satisfy the deficiencies disclosed by the audits. Such letters reflected, however, varying amounts the company claimed to be due as a consequence of newly discovered deficiencies in ongoing audits, discussed supra, as well as varying credits accorded respondent. Such correspondence lends credence to respondent's testimony that he was unsure as to the exact sum owing Independent Life, and that he had, subsequent to his termination of employment, remitted funds to the company. Respondent did concede, however, that when he terminated his employment with Independent Life, his account had a deficiency of approximately $1,400. Regarding any deficiency that may have been owing Independent Life, the proof demonstrates that respondent did, over time, satisfy all outstanding obligations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding respondent guilty of the violations set forth in the conclusions of law, and suspending his licenses and eligibility for licensure for a period of nine months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of October 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3885 Petitioner's proposed findings of fact are addressed as follows: 1 & 2. To the extent supported by the proof, addressed in paragraph 1. 3. Addressed in paragraph 2. 4 & 5. Addressed in paragraph 3. 6. Addressed in paragraph 4. 7 & 8. Addressed in paragraph 5. 9 & 10. Addressed in paragraphs 6 & 7, otherwise rejected as not supported by competent proof. 11. Rejected as a conclusion of law. COPIES FURNISHED: William C. Childers, Esquire Department of Insurance 612 Larson Building Tallahassee, Florida 32399-0333 Earle Anthony Bennett 12100 North West 11th Avenue Miami, Florida 33168 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact Respondent, Mary Jean Brooker, is a teaching veteran of approximately 18 years, and most recently was employed by Petitioner as a specific learning disabilities (SLD) teacher at Bear Creek Elementary School in St. Petersburg, Florida, pursuant to an annual contract. Respondent received worker's compensation benefits from June 8, 1992, to November 30, 1992, based on the recommendation of Petitioner's worker's compensation doctor, Scott Russell, M.D., her treating physician, and Terry Dillon, M.D., who conducted an independent medical exam (IME) at Petitioner's request. Respondent's leave (and claim for benefits) was caused by an accident in which she was injured on June 8, 1992, when a recycling truck backed into her vehicle while she was driving on school grounds. The injury in the above accident aggravated a previous back injury that Petitioner sustained when she was "rear ended" in an automobile accident in December 1990. Upon being placed on worker's compensation leave, Respondent was not advised by Petitioner's employees or agents what her limitations were in terms of working at home or elsewhere. Dr. Terry P. Dillon, a self-employed physician employed by Medical Doctors of Morton Plant, Inc., conducted an IME on Respondent. Dr. Dillon specializes in treating and evaluating patients who sustain on the job injuries and consults with industrial managers on work place injuries. Dr. Dillon's evaluation was requested by Petitioner's risk management section. Dr. Dillon took a medical history of Respondent and conducted muscular, skeletal and imaging studies. Dr. Dillon also reviewed Respondent's prior medical records. Dr. Dillon's first examination of Respondent was on September 17, 1992. He noted that Respondent had a long history of low back pain; facial joint pain with some symptoms which were spontaneous and other lower back and neck pain and facial joint injuries stemming from the motor vehicle accident during December 1990. During the more recent accident of June 8, 1992, Dr. Dillon observed an increase in the symptoms and Respondent also consulted with a chiropractor and a neurologist who observed tenderness over Respondent's neck muscles and shoulder blades. Dr. Dillon observed no evidence of injuries to Respondent's upper extremities other than a mild compression of nerves in the upper torso area. Dr. Dillon evaluated the tenderness in Respondent's low back but he detected no spasms. He found some sciatic tenderness in the lower extremities although he noted no lower nerve deficits during the normal clinical exam. Dr. Dillon observed some degenerative changes associated with age and the accident related injuries. He was unable to tell if bony changes were due to the more recent August 1992 motor vehicle accident or were a result of the earlier accident. He opined that it was more likely than not that the injury was not related to the '92 accident. Finally, Dr. Dillon speculated that Respondent evidenced some "psychological investment of pain" however he could not confirm his speculation. Dr. Dillon opined that Respondent should "go forward with an active rehabilitation program" and that after approximately four weeks she should be able to return to work part-time in light duty status and perhaps after eight weeks of following such a regimen, Respondent should be able to return to work full-time after 16 weeks. In concluding, Dr. Dillon opined that Respondent was totally unable to work the entire month of September 1992, although he felt that thereafter she should have been able to work on a part-time basis. Respondent was not issued any work restrictions by Dr. Dillon. Respondent was rated "temporary total disability" by Dr. Dillon which means that she was unable to do a combination of sitting, standing and walking during a three to four hour period. Respondent also served as an SLD coordinator while employed at Bear Creek. As an SLD teacher and coordinator, Respondent had to assess and work with the development of skills for SLD students. Her class sizes ranged from a high of 20 to a low of 8 students and the instruction was individualized. In 1992, Respondent advised her principal, Susan Daniels, that she had an auto accident during 1990 although she did not request any specific accommodation based on the injuries sustained in that accident. During the summer of 1992, while employed as a summer school teacher, Respondent was involved in the August 1992 accident. As a result of that accident, Respondent incurred injuries and advised Daniels that she would be unable to continue teaching during the summer and the beginning of the 1992-93 school year. Respondent also told Daniels during the summer of 1992 that she, at times, experienced severe pain from the 1992 accident. Respondent's husband purchased a daycare center during 1991. When the business was purchased, Respondent often assisted her husband in the operation of the daycare after school hours and on weekends. For her services, Respondent was paid a salary until July 1993. While Respondent was convalescing after the 1992 accident, she often went to the daycare center, out of boredom, to assist the daycare staff. The daycare center has a staff of approximately eight teachers who work a full time schedule. Prior to the accident during 1992, Respondent worked approximately eight to ten hours per week at the center. After the accident, she has been working approximately 2 1/2 to 4 hours per week doing such things as answering the phones, responding to inquiries about rates, assisting in billings and other related chores. Respondent and her husband moved to a new residence on September 18, 1992. Respondent assisted in the move by doing such things as loading clothing, lamps and light items such as pictures and other small memorabilia into her car. Additionally, Respondent assisted in cleaning the old home that they were moving from and she did some cleaning of the new home before they placed heavy furniture and appliances in the home. Respondent did not do any heavy lifting or pulling during the move on September 18, 1992. Respondent has "good" and "bad" days. In other words, her level of pain fluctuates from day to day. Respondent was placed under surveillance by the worker's compensation carrier for Petitioner. During the surveillance, Respondent was observed assisting in the move from periods up to two hours during the a.m. and approximately three hours during the p.m. on September 19, 1992. However, Respondent did not lift any heavy items and the videotape of the move did not establish anything to the contrary. To the extent that she was seen lifting a large trash bin, it could not be determined how heavy that trash bin was. Respondent was assisted, by another female, in lifting the trash bin and taking it to the sidewalk. Investigators Angela Elliott and Clifford Froggat placed Respondent under surveillance during September and November 1992. On November 5, Respondent was observed travelling from her residence to the daycare center where she remained an undetermined amount of time. Respondent has been paid worker's compensation benefits for the injuries sustained in the June 8, 1992, motor vehicle accident. Respondent has filed a tort claim against the alleged tortfeasors and she expects to repay the Petitioner for any worker's compensation benefits that she recovers as a result of that claim. Respondent reported for work when she was released by her treating physician.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order withdrawing the suspension and ultimate dismissal of Respondent and reinstate her to the position of an SLD teacher and make her whole for any loss of pay she sustained as a result of her dismissal. DONE AND ENTERED this 6th day of April, 1994, 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 6th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2293 Rulings on Petitioner's proposed findings of fact: Paragraph 6, adopted as relevant, paragraphs 2 and 3, Recommended Order. Paragraph 8, adopted as modified, paragraph 7, Recommended Order. Paragraph 12, adopted as modified, paragraph 17, Recommended Order. Paragraph 14, adopted as modified, paragraph 15, Recommended Order. Paragraph 15, adopted as relevant, paragraph 14, Recommended Order. Paragraphs 16 and 17, rejected irrelevant. Paragraphs 18 and 19, adopted in the Preliminary Statement, paragraph 1. Rulings on Respondent's proposed findings of fact: Paragraphs 5 and 6, adopted as modified, paragraph 22, Recommended Order. Paragraph 9, adopted as modified, paragraph 20, Recommended Order. Paragraphs 10 and 11, rejected, irrelevant and/or subordinate. Paragraphs 15 and 16 rejected, argument. Paragraph 18, rejected, not probative. COPIES FURNISHED: Robert G. Walker, Jr., Esquire 1432 Court Street Clearwater, Florida 34616-6147 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street, Southwest Largo, Florida 34640-3536
The Issue The issue is whether Respondent is guilty of an unfair or deceptive trade practice by selling ancillary insurance products to customers without adequate disclosure, in violation of Sections 626.9541(1)(z) and 626.621(6), Florida Statutes.
Findings Of Fact At all material times, Respondent has been a licensed general lines agent, holding license number A192887. She has been licensed for 15 years and has not been disciplined. From January 2000 to July 2007, Respondent was employed by Econo Insurance Agency in Deerfield Beach. She was employed to sell insurance and otherwise serve customers. Econo Insurance Agency paid Respondent a salary, but she earned commissions from the sales of ancillary products. This case involves the sale of two products ancillary to personal injury protection (PIP) coverage: an accidental medical supplement (also known as an accidental medical protection plan) to pay the $1000 deductible under the PIP policy commonly sold by the agency and a motor club membership plan to pay for towing and a rental car. On July 27, 2004, Denise Parker visited Econo Insurance Agency to renew her PIP coverage. She had obtained her insurance from Econo Insurance Agency for 17 years. Ms. Parker initially testified that she did not meet with Respondent, but instead met with another woman, Crystal Fowler. Ms. Parker testified unequivocally that she dealt with Respondent on other occasions, but did not on July 27 and that Ms. Parker did not purchase insurance from Respondent "that year." At the hearing, Ms. Parker looked at Respondent and stated that she was not the woman with whom she had dealt on the day in question. After a short break, Ms. Parker testified that Respondent, not Ms. Fowler, sold her the product in question, an accidental medical supplement. The confusion may be attributable to the fact that Ms. Parker made two visits to the agency. The first was on July 27 to arrange for the renewal of her PIP coverage, and the second was on August 2, 2004, to pay for and obtain her policy. However, the testimony of Ms. Parker precludes assigning responsibility to Respondent, rather than Ms. Fowler, for any acts or omissions that may have taken place during the July 27 and August 2 office visits. Although documentation, described below, bears Respondent's signature, this fact does not preclude a division of responsibilities between Respondent and Ms. Fowler, who may nonetheless have presented the coverage options to Ms. Parker. On July 27, Ms. Parker signed a number of documents at the agency. One of the documents is an application to purchase an accidental medical protection plan for up to $1000 in benefits for a premium of $110. According to the application, this coverage is administered by National Insurance Underwriters, Inc., in Deerfield Beach and, according to the policy, the coverage is underwritten by "certain Underwriters at Lloyd's, London (not incorporated)." (The telephone number for claims is the same as the telephone number shown in the motor club membership plan, described below, administered by "National Safe Drivers" or "Nation Safe Drivers," so Petitioner and Respondent have tended to refer to National Safe Drivers as the obligor, or its agent, under both ancillary products.) The application clearly discloses the optional nature of the accidental medical supplement coverage. Immediately above Ms. Parker's signature is a statement: "The purchase of this plan is optional and is not required with your auto insurance policy." Beside Ms. Parker's signature and bearing the same date is the signature of Respondent, attesting that three other carriers denied this coverage. The premium finance agreement and disclosure statement, which is a single form signed by Ms. Parker on July 27, 2004, shows a premium for PIP coverage and a $110 premium to Nations Safe Drivers for accidental medical supplement coverage. The renewal premium notice discloses, immediately above Ms. Parker's signature, which is dated July 27, that she has elected the $1000 deductible on her PIP coverage. On August 21, 2004, Luery Moreno visited the Econo Insurance Agency to purchase automobile insurance. She met with Respondent and agreed to purchase the insurance from her. On this day, Ms. Moreno purchased an accidental medical supplement, even though she testified that Respondent never mentioned the accidental medical supplement that she purchased, or that this coverage was not required under Florida law. Initially, Ms. Moreno stated that this was her first visit to the Econo Insurance Agency, but, on cross-examination, she admitted that her recollection of the events of August 21 was not "clear." Upon the presentation of coverage that she had purchased in June 2003 from Econo Insurance Agency, Ms. Moreno recalled that she had purchased automobile insurance from the same agency in June 2003, that she had purchased the accidental medical supplement at that time, and that she might have asked Respondent for the same coverages when she visited the office in August 2004. In fact, Ms. Moreno had submitted a claim under the motor club membership plan that she had purchased in June 2003. As in June 2003, Ms. Moreno completed an application on August 21, 2004, for accidental medical supplement coverage. The applications both state, above her signature: "The purchase of this plan is optional and is not required with your auto insurance policy." The premium finance agreement and disclosure statement show the separate premiums for the PIP and accidental medical supplement coverages and is signed by Ms. Moreno. Because Ms. Moreno secured coverage with the Florida Automobile Joint Underwriting Association (JUA), she obtained a summary of coverages and premium, which clearly reveals that she was purchasing PIP (as well as property damage), medical payments, and towing and car rental reimbursement, although the summary of coverages and premium form fails to itemize premiums for each product, instead showing a gross premium for all coverages. Although Ms. Moreno disputed her signature on one or more of the documents, the evidence failed to establish that she did not sign all of the relevant documents. On July 30, 2004, Megan McCartin visited Econo Insurance Agency to obtain PIP coverage. She met with Respondent and agreed to purchase insurance from her. Ms. McCartin selected Econo because her family had purchased insurance from this agency in the past. Initially, Ms. McCartin testified that this was the first time that she had obtained insurance, so she brought her mother with her to help with the transaction. When presented with documents showing that she had purchased insurance from Econo Insurance Agency in July 2003, Ms. McCartin recalled that the July 2004 visit was for the renewal of the coverage that she had purchased the prior year. Most of Ms. McCartin's testimony on direct concerned the transaction in which her mother helped her, which was probably the July 2003 transaction. The documentation from the July 2003 transaction discloses that Ms. McCartin had purchased the accidental medical supplement coverage and towing and car rental reimbursement for the prior year. On July 30, 2004, Ms. McCartin renewed these coverages for the year in question. Both years, Ms. McCartin signed the applications for the accidental medical supplement with the same disclosure noted above. The premium finance agreement and disclosure statement shows the separate premiums for the PIP and accidental medical supplement coverages and the signature of Ms. McCartin. Because Ms. McCartin was purchasing insurance from the JUA, she also received a summary of coverages of premium, which clearly discloses the existence of medical payments and towing and car rental, in addition to PIP. On October 26, 2004, Ashley McCartin, Megan's sister, visited the Econo Insurance Agency to renew her automobile insurance. She met with Respondent and agreed to purchase insurance from her. Ms. Ashley McCartin testified that she had purchased automobile insurance previously from the agency and wanted only the minimum coverage required by law. Ms. Ashley McCartin recalls speaking with Respondent for nearly an hour and listening to Respondent's description of the towing package, but testified that Respondent said nothing about an accidental medical supplement or accidental medical protection plan. Ms. Ashley McCartin testified that Respondent told her that, with this insurance, she obtained towing coverage, which Ms. McCartin thought would be useful because her car was unreliable. At all times, though, Ms. McCartin intended to purchase only what the law required due to her strained financial circumstances. The documentation discloses that Ms. Ashley McCartin purchased a motor club membership plan in 2003 and 2004 and that she signed an application for an accidental medical supplement with the same disclaimer as contained in the applications described above. She also signed a JUA summary of coverages and premium, which shows, as separate items, PIP, medical payments, and towing and car rental. Likewise, Ms. McCartin signed a premium finance agreement and disclosure statement, which shows separate premiums for the PIP and accidental medical supplement coverages. The PIP coverage cost her $1450, and the accidental medical supplement cost her $110. On November 19, 2004, Alta Thayer visited Econo Insurance Agency to purchase automobile insurance. She met with Respondent and agreed to purchase insurance from her. Now 74 years old, Ms. Thayer admitted that she did not recall purchasing insurance in 2004, but seemed to recall generally a transaction with Respondent, subject to the limitations noted below. Ms. Thayer drove to the agency in a 2002 Hyundai, which was insured through the Marlin Insurance Agency, but she wanted to insure another car, a Lincoln Continental. While testifying, Ms. Thayer displayed irritation with many aspects of her transaction with Respondent. Ms. Thayer testified that other insurance agents all took photographs of the insured vehicle and checked the odometer, but Respondent did not try--it is unclear whether, when Respondent declined to photograph the car, Ms. Thayer had already informed her that the vehicle to be insured was not parked outside the office. At first, Ms. Thayer testified that Respondent had been "nasty" from the start, but then changed her testimony to say that Respondent became irritable when, the next day, Ms. Thayer returned in connection with some tag work. Ms. Thayer testified that the insurer canceled her insurance on the day after she had obtained it, on the ground that she had another car, presumably the Hyundai, insured with another company. While Ms. Thayer sat and waited to be taken care of, she complained that the receptionist and Respondent chatted. When Ms. Thayer complained, she claimed that Respondent told her to file a complaint, "you old bag." Ms. Thayer testified that she and Respondent never discussed a motor club membership plan, nor did she need one. Perhaps again confusing the two cars, Ms. Thayer "explained" that the Hyundai was only two years old and had come with a five-year roadside assistance program. When reminded that she was insuring the Lincoln, Ms. Thayer testified that it had never given her problems. On November 19, 2004, Ms. Thayer signed an automobile service contract for a motor club membership plan for a "1990" Lincoln Continental. The contract calls for the payment of a $50 fee in return for towing and emergency road service and car rental reimbursement. Unlike the application for the accidental medical supplement, the application for the motor club membership plan includes no disclaimer that this plan is optional and not required with the PIP coverage. On the same date, Ms. Thayer also signed a summary of coverages and premium, which shows separate PIP and towing and car rental coverages. Four of these five transactions fail to present cases of liability without regard to the testimony of Respondent. Ms. Moreno's recollection of her transaction is impossible to separate from her recollection of the prior year's transaction. Ms. Moreno's admission that she may have asked merely for the same coverage from the prior year undermines the remainder of her testimony. Ms. Parker's recollection of her transaction is flawed by her misidentification of Respondent and the resulting possibility that Ms. Fowler, not Respondent, is guilty of the acts and omissions of which Ms. Parker complains. Ms. Megan McCartin's recollection of her transaction is impossible to separate from her recollection of the prior year's transaction. As is the case with Ms. Moreno's transaction, Ms. Megan McCartin's transaction renewed the same accidental medical supplement coverage that she had obtained the prior year with the same documentation, so it is more difficult, on this ground as well, to find Respondent guilty of any concealment or misrepresentation as to the accidental medical supplement. Ms. Thayer displayed serious credibility problems--of confusion, not prevarication. Ms. Thayer's testimony was confused at several points, as in her "explanation" that her new Hyundai did not require towing coverage when she was insuring a 14-year-old Lincoln. Repeatedly, Ms. Thayer referred to her Lincoln as a 1980 model, then a 1990 model, then a 1980 model, even after inquiry by the Administrative Law Judge intended to draw her attention to the issue and resolve it. Ms. Thayer was visibly angry at Respondent at the hearing and was decidedly adversarial as a witness. Perhaps her anger stemmed from the immediate cancelation and the agency's mishandling of her transaction, as her application revealed, on its face, that she owned another vehicle for which she was not seeking insurance. But Ms. Thayer seemed to be looking for things with which to fault Respondent, such as her failure to get up out of her chair and walk outside to photograph and inspect the car that Ms. Thayer had driven to the agency, even though this was not the car to be insured. Still working four days each week in the fitting room at Marshall's department store, Ms. Thayer proved an energetic, though not always responsive, witness, whose eagerness to bolster her own credibility extended to the assertion, late in her testimony, that she had a top secret clearance from the Korean War. After observing Respondent's demeanor during testimony and at hearing and comparing it to the demeanor of Ms. Thayer, it is highly unlikely that Respondent called Ms. Thayer an "old bag"--a fact that raises grave problems with the reliability of the rest of Ms. Thayer's testimony. The transaction with Ms. Ashley McCartin presents the only case of sliding undisclosed coverages carrying extra premiums by Respondent. Seeming to bear no grudge against Respondent, Ms. Ashley McCartin testified frankly that she told Respondent that she wanted the minimum coverage, and Respondent said nothing about an accidental medical supplement or accidental medical protection plan. However, Ms. McCartin clearly signed forms asking for this coverage and acknowledging the fact that it was not included in her PIP premium. Respondent testified that she sold 100-150 policies per month and was responsible for the tag and title work associated with these sales. A typical customer never asked just for PIP, but asked instead for minimum coverage. Respondent would take 10-15 minutes per transaction to explain bodily injury and underinsured motorist coverages and the consequences of not purchasing these items, which also offered Respondent commission income. Respondent offered accidental medical supplement and the motor club membership plan to most of her customers. Respondent testified that she told her customers that these ancillary products were "included" with their coverages. She recalled that one of the McCartins was "delighted" upon hearing that such coverage was "included," clearly suggesting that Respondent's "explanation" implied that the ancillary coverage was at no additional expense, or at least that the customer so inferred. There is some discrepancy between the versions of Ms. Ashley McCartin and Respondent. Ms. McCartin testified that Respondent never mentioned the accidental medical supplement, and Respondent testified that she always assured the customer that the ancillary coverage was "included" in the primary coverage. However, Ms. McCartin's testimony reveals little knowledge of insurance products and is consistent with her "understanding" that the medical coverage of $1000 was just part of PIP. Such a misunderstanding would be facilitated by Respondent's misleading assurance--repeated more than once at the hearing--that the accidental medical supplement is "included" with the PIP. Respondent's testimony that she assured her customers that ancillary products were "included" with the PIP coverage does not override the deficiencies noted above as to the other four customers. Ms. Parker essentially cannot say who said what to her, so, even if Respondent were misleading her customers at the time as to the relationship between ancillary products and PIP, nothing establishes that she did so with Ms. Parker. Ms. Moreno may well have told Respondent to give her the same coverage as she had the prior year, during which she had filed a claim under the motor club membership plan, so Respondent would never have had the need to "explain" to Ms. Moreno the relationship of the ancillary products to the PIP product. Ms. Thayer is the only customer who did not purchase both ancillary products, which suggests either discernment on her part or restraint on the part of Respondent--but, either way, Ms. Thayer may have obtained what she wanted. She is also the only customer for whom the alleged ancillary product is the motor club membership plan, which might reasonably have represented an attractive purchase to Ms. Thayer given the age of her Lincoln. Ms. Megan McCartin presents the closest case among the four remaining customers, but her inability to differentiate between the 2003 and 2004 transactions precludes a finding of sliding by the requisite standard of proof.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order finding Respondent guilty of one count of violating Sectios 626.9541(1)(z)2. and 3., Florida Statutes, and, thus, Section 626.621(6), Florida Statutes, and imposing a thirty-day suspension. DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2008. COPIES FURNISHED: Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 William Gautier Kitchen, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Jed Berman, Esquire Infantino and Berman Post Drawer 30 Winter Park, Florida 32790
Findings Of Fact From January 15, 1980, until November 30, 1981, Respondent was the only licensed general lines agent at the C&M Insurance Agency of Dade County, located at 1014 Northwest 27th Avenue, Miami, Florida. At the same time, Respondent also sold insurance as Authorized Insurance Agency at The North Miami Flea Market, 14135 Northwest Seventh Avenue, Miami, Florida. While Respondent was the only licensed agent at that C&M address, his contract with C&M Insurance Agency expressly prohibited him and his employees or agents from soliciting or selling any form of insurance. Rather, the contract provided That Respondent was only permitted to use office space to prepare and file income tax returns at the C&M Northwest 27th Avenue address and also at C&M's other offices located on South Dixie Highway and on South State Road Seven. While doing business at the North Miami Flea Market, Respondent held himself out as president of Authorized Insurance Agency. During the same time period, Respondent wrote business at The North Miami Flea Market during the week and not just on weekends. Further, on December 19, 20 and 22, 1920, Respondent wrote business at both The North Miami Flea Market and at the C&M Northwest 27th Avenue address. On September 9, 1981, John G. Holmes completed an application and paid $639 for automobile insurance with National Security Insurance Company. The application was signed by Respondent and contains C&M's Northwest 27th Avenue address. Neither the application nor the insurance premium monies were ever forwarded to National Security Insurance Company. Holmes has never received either insurance coverage on his automobile or a refund of his insurance premium. On October 6, 1981, Antje Kalb purchased an automobile. The salesman at the dealership told her she needed to purchase insurance and gave her the name and telephone number for C&M's Northwest 27th Avenue office. She called C&M, and someone from that Agency came to the dealership. Kalb gave to C&M's representative $783 for full automobile insurance coverage, and the C&M employee gave Kalb a receipt for her premium. The receipt carries the C&M Northwest 27th Avenue address, and the binder given to Kalb carries Respondent's signature. Neither Kalb's application nor her premium payment were ever forwarded to the insurer, Commercial Union Insurance Company, and Kalb has never received either her automobile insurance coverage or a refund of her premium payment. On July 14, 1980, Sidney Sugarman from C&M's South State Road Seven office entered into a written agency agreement with Fortune Insurance Company. Between November 1, 1980, and January 31, 1981, Respondent signed and sent 23 applications for automobile insurance to Fortune Insurance Company, which applications reflected that the business had been written out of C&M's Northwest 27th Avenue address. Fortune issued policies to The insureds based upon those applications. Respondent performed all The acts and duties of a general lines insurance agent for Fortune Insurance Company. On October 24, 1980, Respondent entered into a written agency agreement on behalf of Authorized Insurance Agency with Fortune Insurance Company. Between October 31, 1980, and January 31, 1981, Respondent signed and sent 14 applications for automobile insurance from Authorized Insurance Agency to Fortune Insurance Company. Fortune issued policies to the insureds based upon these applications. Respondent performed all The acts and duties of a general lines insurance agent for Fortune Insurance Company. Respondent was not licensed with Fortune Insurance Company until June 17, 1981. Fortune Insurance Company and Respondent had no brokerage arrangements prior to June 17, 1981; rather, all applications submitted by Respondent to Fortune Insurance Company prior to that date were written as direct contracts and not through any brokerage arrangement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Count II of the Administrative Complaint filed herein; finding Respondent guilty of The allegations contained in Counts I, III, IV, V and VI of the Administrative Complaint filed herein; and revoking all licenses currently possessed by Respondent and his eligibility to hold a license pursuant to Chapter 626, Florida Statutes. DONE and RECOMMENDED this 19th day of October, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 19th day of October, 1983. COPIES FURNISHED: Curtis A. Billingsley, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 Mr. Eugene Lipofsky 1851 NE 168th Street North Miami Beach, Florida 33162 The Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Mo-Bo Enterprises, Inc., or its sureties are indebted to Petitioner, Suwanee Farms, for corn sold to Mo-Bo Enterprises, Inc.
Findings Of Fact Based upon consideration of the testimony of witnesses and the documentary evidence, the following relevant findings of fact are determined: Petitioner, Suwanee Farms, is a producer of agricultural products in Florida. At all times relevant to this proceeding, Respondent, Mo-Bo Enterprises, was licensed by the Department of Agriculture and Consumer Services as a dealer of agricultural products. During the period between September 20, 1994 and October 12, 1994, inclusive, Respondent, Mo-Bo Enterprises, was bonded by Co-Respondent, General Accident Insurance Company of America. Between October 13, 1994 and October 29, 1994, inclusive, Respondent, Mo-Bo Enterprises, was bonded by Co-Respondent, Armor Insurance Company. Petitioner sold corn to Respondent, Mo-Bo Enterprises, between the period September 20, 1994 and October 29, 1994. Respondent was given a Bill of Lading for each order of corn it received. Petitioner sent an invoice to Mo-Bo Enterprises for each shipment of corn that was delivered to Mo-Bo Enterprises. The amount of each invoice represented the price of the corn to which Petitioner and Respondent, Mo-Bo Enterprises, had agreed. Petitioner received a complaint from Mo-Bo Enterprises regarding corn which Petitioner had shipped to Mo-Bo Enterprises on October 4, 1994. Based on this complaint, Petitioner reduced the price of the corn by seventy-five cents (.75) per crate. As a result of this reduction, the adjusted total price for the shipment of corn reflected on Invoice No. 002392 is $1050.00, rather than the $1,200.00 shown. The terms of payment are set forth on the face of the invoice and require payment within thirty (30) days of the invoice date. The total amount of the invoices for shipments of corn sold and delivered to Mo-Bo Enterprises by Petitioner between September 20, 1994 and October 12, 1994, is $23,950.00. The total amount invoiced by Petitioner to Mo-Bo Enterprises, for corn sold and shipped to Mo-Bo Enterprises between October 13, 1994 and October 29, 1995, is $13,716.00. Despite repeated demands by Petitioner, Mo-Bo Enterprises has refused to pay for any of the shipments of corn. As of the date of the formal hearing, the invoice for each shipment of corn made between September 20, 1994 and October 29, 1994, remained due and owing and unpaid.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order (1) requiring Respondent, Mo-Bo Enterprises, Inc., or its surety Co-Respondent, General Accident Insurance Company of America, to pay Petitioner $23,950.00, and (2) further directing Respondent, Mo-Bo Enterprises, Inc., or its surety, Co-Respondent Armor Insurance Company, to pay Petitioner $13,716.00. DONE and ENTERED this 17th day of October, 1995, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1995. APPENDIX To comply with the requirements of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted. Petitioner's proposed findings of fact. Paragraph 7. Accepted and incorporated to the extent not subordinate and unnecessary. COPIES FURNISHED: Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Mo-Bo Enterprises, Inc. P.O. Box 1899 Pompano Beach, Florida 33061 Don Bieda, Esquire Legal Department General Accident Insurance Co. 436 Walnut Street Philadelphia, Pennsylvania 19105-1109 Joseph S. Hall & R. P. Wight Suwanee Farms Route 2 Box 3641 O'Brien, Florida 32071 Mark J. Albrechta, Esquire Legal Department Armor Insurance Company P.O. Box 15250 Tampa, Florida 33684-5250 Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Bill Reinhardt, Esquire Rob Reinhardt, Esquire P.O. Box 1287 Tipton, Georgia 31793 Charles Barnard, Esquire 200 SE 6th Street Ste. 205 Ft. Lauderdale, Florida 33301 Bradford A. Thomas, Esquire Suite 900 Brickell Centre 799 Brickell Plaza Miami, Florida 33131-2805 Honorable Bob Crawford Commissioner Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
