Findings Of Fact Martin Daniel Patrick has been a life insurance agent for some 32 years. At all times material hereto he was the owner of Dan Patrick & Associates insurance agency at Brooksville, Florida. By Consent Order dated January 7, 1983, MOP's license as an Ordinary Life, including Disability, agent was suspended for a period of 60 days. By Emergency Order of Suspension dated August 3, 1983, his license was suspended based upon the allegations contained in the Administrative Complaint dated August 23, 1983. James R. Patrick has been in the insurance business since 1976. He owned the Jim Patrick Insurance Agency at all times relevant hereto and in August, 1982, purchased the Wardwell Insurance Agency. JRP is licensed as an Ordinary Life, including Disability, agent and as a General Lines agent, and is authorized to sell casualty insurance as well as life and health insurance. By Consent Order dated September 15, 1982 (Exhibit 9), JRP's license was suspended for a period of six months from the date of that order. After purchasing the Wardwell Insurance Agency, JRP decided to open a branch office in Brooksville and so notified the Insurance Commissioner (Exhibit 7). He intended to have Larry Kinner as office manager for the Brooksville office. Kinner had passed his examination but awaited licensure for a much longer period than usual. While awaiting Kinner's licensure, JRP took application forms to Brooksville, was given space in his brother's (MDP) office in Brooksville; employed his niece, Beverly Patrick, to take applications for automobile and other casualty insurance; visited Brooksville frequently to meet with customers to sell casualty insurance; was available by telephone to the Brooksville office when not physically in Brooksville; had another agent in the Wardwell office go to Brooksville frequently to sell policies and accept applications; and had Beverly Patrick forward all applications and premiums received to the Wardwell office at Bartow. After waiting about three months without Kinner receiving his license, JRP closed the Brooksville branch of Wardwell Insurance Agency. During the time this branch office was in existence in Brooksville, the Wardwell name did not appear on the door nor did Wardwell have a telephone number separate from that of Dan Patrick & Associates. The evidence was unrebutted that Beverly Patrick worked for and was under the supervision and control of the Wardwell Insurance Agency and not MDP. One of MDP's clients is James Gordon, who is employed by the Hernando State Bank as loan officer. In the fall of 1982 Gordon wanted to update his policies and talked to MDP about this during an incidental visit by MDP to the bank. Gordon worked up a spread sheet on his policies and arranged an appointment for MDP to come to his house to present a program to him and his wife. The exact date of this meeting was not established. At this meeting MDP presented a program to the Gordons, who wanted additional time to think about it. Within about two weeks of this meeting, Gordon notified MDP that he accepted the program and would have a check for the premium available when MDP next visited the bank. Gordon signed this application on February 7, 1983 (Exhibit 23), and wrote a check for the premium the same date. The only one to whom Gordon spoke about this insurance was MDP; however, his signature on the application was witnessed by David Pugh, a son-in-law of MDP who is a licensed insurance agent and works in the Dan Patrick agency in Brooksville. For the 60- day period following January 7, 1983, the license of MDP was suspended. Although the information regarding the program was probably prepared by MDP before January 7, 1933, the meeting with the Gordons at which the program was explained occurred subsequent to January 7, 1983. MDP contacted Vera Cannon in April or May, 1983, to update life insurance policies. He had sold her the original policy some ten years ago. On August 1, 1983, MDP picked up the existing policies from Vera Cannon to prepare a proposal to update the policies. She made an appointmemt with MDP for August 17, 1983, at which meeting MDP presented to her a proposal. David Pugh accompanied his father-in-law at this appointment. Respondent testified that he told Curtis Cannon, the husband of Vera Cannon, that his license was suspended and that Pugh would be handling the insurance; however, at the meeting with Vera Cannon, Respondent presented the proposals. MDP also contacted Becky Cannon, wife of Mark and sister-in-law of Vera, on August 18, 1983, for the purpose of selling additional life insurance. An appointmemt was made for August 22, 1983; however, Becky Cannon cancelled the appointment with MDP and set up another appointment for the following week. Before that date arrived, Becky recalled seeing something in the paper about Respondent's emergency suspension and called the insurance department. When told that MDP's license was suspended, Becky cancelled the appointment and told Vera that MDP's license was suspended. Vera then called Respondent's office to demand the return of the premium she paid. Pugh returned her check immediately. Gene Daniel is part owner of Branche-Daniel Corp d/b/a Brooksville Crown and Bridge. He contacted MDP regarding health insurance for his employees and for casualty insurance for his property. For this insurance he was referred to JRP, and he testified he purchased health insurance for his employees from Brenda Coley, a licensed agent in the Wardwell agency. Daniel does not recall when he spoke to MDP regarding his application for health insurance. Exhibit 22 contains an application, which appears to be dated January 10, 1983 (and 3-7-83) which is signed by Deanna L. Pugh, as agent, and a check signed by Daniel dated January 11, 1983. Daniel described himself as an absentee owner of the business to which he comes sporadically to sign documents and checks. No credible evidence was presented regarding the date of his conversation with MDP or that the latter did more than refer him to an agent licensed to sell the insurance Daniel desired. None of the parties to whom Respondents sold insurance allegedly in violation of Chapter 626, Florida Statutes, suffered any loss or complained of the treatment received from Respondents. During the time the Wardwell agency worked out of MDP's office in Brooksville, JRP's license was under suspension yet he was always available by telephone, when not in Brooksville, to answer questions from and give instructions to, Beverly Patrick. JRP testified that he made frequent trips to Brooksville, sometimes several days in one week. During these visits he met with customers to sell insurance.
Recommendation It is RECOMMENDED that the license of James Royal Patrick as an Ordinary Life, including Disability, and General Lines agent be suspended for a period of one (1) year. It is further RECOMMENDED that the license of Martin Daniel Patrick as an Ordinary Life, including Disability, agent be suspended for a period of one (1) year. ENTERED this 14th day of December, 1983, at Tallahassee, Florida. K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1983. COPIES FURNISHED: Curtis A. Billingsley, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 Thomas F. Woods, Esquire 1300 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Honorable Bill Gunter Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301
The Issue The issues for determination are: (1) whether Respondent violated the provisions of the Insurance Code as alleged in the Administrative Complaint by pleading guilty to a felony and failing to report such plea to the Petitioner; (2) whether the offense to which Respondent pleaded guilty is a crime involving moral turpitude; and (3) if yes to either of the foregoing, what penalty should be imposed on Respondent's license as a non- resident life and health insurance agent.
Findings Of Fact At all times pertinent to this proceeding, Respondent was licensed in the State of Florida as a non-resident life and health insurance agent. Respondent has been a licensed insurance agent for twenty-four years, having first been licensed in Florida in 1994. In addition to holding a Florida insurance license, Respondent is also licensed as an insurance agent in North Carolina. On or about January 13, 1997, an information was filed in the Sixth Judicial Circuit, in and for Pasco County, Florida, Case No. 97-00245CFAWS, charging Respondent with one count of scheme to defraud. This offense constitutes a felony. On September 4, 1997, Respondent pled guilty to the charge of scheme to defraud. The judge withheld adjudication of guilt, placed Respondent on probation for three years, and indicated that he would consider early termination of probation after Respondent served 50 percent of his sentence. On September 12, 1997, the court entered a written Order Withholding Adjudication of Guilt and Placing Defendant on Probation that stated in part the following: It appearing to the satisfaction of the court that you are not likely again to engage in a criminal course of conduct, and that the ends of justice and the welfare of society do not require that you should presently be adjudged guilty and suffer the penalty authorized by law. Now, therefore, it is ordered [and] adjudged that the adjudication of guilt [and] imposition of sentence are hereby withheld, [and] that you are hereby placed on probation for a period of three years under the supervision of the Department of Corrections subject to the Florida law. . . . Respondent did not inform the Department that he pled guilty to a felony and was on probation as required by Section 626.621 (11), Florida Statutes. The reason that Respondent failed to report the guilty plea and probation was that he believed that it was unnecessary because he was not adjudicated guilty. The aforementioned criminal charge against Respondent and his ultimate guilty plea to the felony of scheme to defraud stemmed from an incident that occurred in 1996. At that time, Respondent was unable to obtain automobile loans due to his bad credit resulting from his divorce. In order to obtain a loan from First Union Bank to purchase automobiles for himself, his wife, and his daughter, Respondent used the name and social security number of his brother, Mark Wilson. As a result of using his brother's name and social security number, Respondent was able to obtain a loan for $43,000.00 to purchase three vehicles, a 1993 Grand Prix, a 1990 Eagle Talon, and a 1995 Lincoln. Several months after Respondent obtained the loan, his brother, Mark Wilson, discovered the loans were on his credit record. Thereafter, Mark Wilson's credit record was corrected and Respondent entered into a stipulated settlement with First Union, whereby he agreed to pay the loans and First Union's attorney's fees incurred in connection with the case. Respondent's brother did not file charges against him. Respondent was current on the loan payments when Mark Wilson, Respondent's brother, learned that loans had been taken out in his name. At the time of the hearing, on August 5, 1998, the loans had been paid down to approximately $7,800.00, and Respondent was current in paying the balance. No person or entity lost any money as result of Respondent's actions. At the time Respondent used the aforementioned deception to obtain the automobile loans, he was very depressed and was undergoing psychological therapy by Marcia N. Davis, a licensed therapist in Asheville, North Carolina. Respondent has continued to undergo psychological treatment by Marcia N. Davis. Her current prognosis is that Respondent has made definite improvement and that she would not expect that he would break the law again. The criminal charge against Respondent was not related to any action taken by Respondent in his role as a licensed insurance agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that a Final Order be entered suspending the license of Respondent, Perry Murray Wilson, for two months. DONE AND ENTERED this 30th day of September, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUMCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1998. COPIES FURNISHED: Patrick Creehan, Esquire Department of Insurance and Treasurer 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Paul B. Johnson, Esquire Post Office Box 3416 Tampa, Florida 33601 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether the Respondent committed the violations alleged in the Amended Administrative Complaint filed with the Division of Administrative Hearings on September 15, 2000, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Insurance is the state agency responsible for licensing insurance agents in Florida and with regulating their conduct. Section 624.307 and Chapter 626, Part I, Florida Statutes (1999). At the times material to this proceeding, Ingrid Machado was Florida-licensed insurance agent. In March 1999, Teresita Baldor was interested in purchasing health insurance. Ms. Baldor had previously owned a private school and had been insured through the school's group health insurance policy. After she sold the school and began teaching mathematics at Miami-Dade Community College and Saint Thomas University, she no longer had health insurance coverage. On or about March 10, 1999, Ms. Machado met with Ms. Baldor at Ms. Baldor's home. Ms. Baldor knew Ms. Machado only as an insurance agent and did not know whether Ms. Machado was affiliated with an insurance agency. Ms. Machado told Ms. Baldor during the March 10, 1999, visit that she would try to place Ms. Baldor in a group for health insurance purposes but that she did not know at that time the group Ms. Baldor would be placed in or the name of the insurance company that would provide the health insurance coverage. Ms. Machado told Ms. Baldor during the visit that she would let Ms. Baldor know the name of the company providing her coverage and that she would send Ms. Baldor the coverage information. During her March 10, 1999, visit to Ms. Baldor's home, Ms. Machado asked Ms. Baldor for general identification information, such as her name and social security number, and for other information, such as her weight. Ms. Baldor did not sign any document during this visit and cannot recall if Ms. Machado completed any form during their conversation. Ms. Machado asked Ms. Baldor to make out two checks, one in the amount of $175.00 and one in the amount of $100.00, but Ms. Baldor does not remember Ms. Machado's telling her the reason she needed two separate checks. Ms. Machado asked Ms. Baldor to leave the line for the name of the payee blank, again telling Ms. Baldor that she did not yet know which insurance company would ultimately provide health insurance coverage to Ms. Baldor. Ms. Machado told Ms. Baldor that the name of the company would be filled in on the checks at a later time. Ms. Machado told Ms. Baldor that she would have health insurance coverage effective March 15, 1999. On or about March 20, 1999, Ms. Baldor telephoned Ms. Machado because Ms. Baldor had not received any information regarding health insurance coverage. Ms. Machado told Ms. Baldor that she was having complications with her pregnancy and could no longer handle Ms. Baldor's insurance matters. Ms. Machado gave Ms. Baldor the telephone number of the "Durey Agency," told her that this agency would work with her to obtain health insurance coverage, and gave her Ray Gonzalez's name. Ms. Machado had no further contact with Ms. Baldor after the telephone conversation on or about March 20, 1999, during the times material to this proceeding. At some point, Ms. Baldor called the telephone number Ms. Machado had given her to find out why she had not received any information regarding her health insurance coverage. Ms. Baldor told the person who answered the phone, a woman named Maria, that she wanted her checks back if she could not give her any information "right then." Later the same day, Maria called Ms. Baldor and told her that she had been placed in a group for health insurance purposes. A Neighborhood Health Partnership Enrollment Form was submitted to the Neighborhood Health Partnership on behalf of Ms. Baldor. On the form, Ms. Baldor was identified as an employee of "International Marketing." A signature appeared on the bottom of the form purporting to be that of Ms. Baldor, and the date next to the signature was "5/10/99." Ms. Baldor never saw the Neighborhood Health Partnership Enrollment Form. A few weeks after Maria told Ms. Baldor that she had been placed in a group for health insurance purposes, Ms. Baldor received a package from the Neighborhood Health Partnership that contained an identification card indicating that she was enrolled in the "International Marketing Group" and indicating that her insurance coverage with the Neighborhood Health Partnership was effective as of June 15, 1999. During Ms. Baldor's conversations with Ms. Machado, Ms. Machado never mentioned the Neighborhood Health Partnership or International Marketing Group. The checks Ms. Baldor provided to Ms. Machado were made payable to the Durey Insurance Group and were processed by the bank on or about May 17, 1999. In addition, Ms. Baldor wrote checks to the Durey Insurance Group dated July 10, 1999, and August 9, 1999, as payment for her health insurance premiums. Ms. Baldor's insurance coverage with the Neighborhood Health Partnership was eventually cancelled. It was Ms. Baldor's understanding that it was cancelled because the Durey Insurance Group did not remit her premium to the Neighborhood Health Partnership and because the "International Marketing Group" in which she was placed by the Durey Insurance Group did not exist. Summary The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Ms. Machado's actions with respect to her dealings with Ms. Baldor demonstrated a lack of fitness or trustworthiness or demonstrated that Ms. Machado lacked reasonably adequate knowledge and technical competence to engage in the transaction of insurance. The Department presented no evidence to establish any standards of skill, ability, knowledge, or competence by which Ms. Machado's acts or omissions can be judged to determine if she committed any of the violations with which Ms. Machado is charged. It is not possible to determine from the evidence presented if Ms. Machado's actions deviated from a standard of fitness or trustworthiness which a reasonably prudent insurance agent would be expected to exhibit under the circumstances or if Ms. Machado's conduct fell below a standard establishing the degree of knowledge and technical competence which a reasonably prudent insurance agent would be expected to exhibit under the circumstances. 2/ The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Ms. Machado engaged in any unfair method of competition or deceptive practices or knowingly made any misrepresentations to Ms. Baldor regarding health insurance coverage. The uncontroverted evidence establishes that Ms. Machado took some minimal information from Ms. Baldor and told her she would place her in a group for health insurance coverage. The uncontroverted evidence further establishes that Ms. Machado did not represent to Ms. Baldor that she would place Ms. Baldor in any specific group, that she would place Ms. Baldor with any particular insurance company, 3/ or that Ms. Baldor would be provided with any specific coverage or benefits. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Ms. Machado knowingly collected from Ms. Baldor any sums in excess of premium because, at the time Ms. Machado collected the two checks from Ms. Baldor, Ms. Machado did not know which insurance company would write health insurance coverage for Ms. Baldor and, therefore, did not know what the premium would be. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Ms. Machado knowingly collected from Ms. Baldor any premium for insurance that was not, in due course, provided. The uncontroverted evidence establishes that Ms. Machado initially agreed to procure health insurance coverage for Ms. Baldor; however, because of her pregnancy, Ms. Machado referred Ms. Baldor to the Durey Insurance Group approximately ten days after Ms. Machado's only meeting with Ms. Baldor and advised Ms. Baldor that the Durey Insurance Group would assist Ms. Baldor in obtaining health insurance. There is no persuasive evidence establishing that Ms. Machado knew or should have known that Durey Insurance Group would not, in due course, provide legitimate health insurance coverage to Ms. Baldor. The evidence presented by the Department is not sufficient to establish that Ms. Machado had any involvement, directly or indirectly, in the transaction in which the Durey Insurance Group identified Ms. Baldor as an employee of "International Marketing" and obtained health insurance for Ms. Baldor with the Neighborhood Health Partnership as a member of the "International Marketing Group." 4/ Furthermore, the evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Ms. Machado's actions made her a source of injury to Ms. Baldor or anyone else. As noted above, the uncontroverted evidence establishes that, soon after Ms. Machado's visit with Ms. Baldor on March 10, 1999, Ms. Machado advised Ms. Baldor that she could not act as Ms. Baldor's agent in placing her with a health insurance company, that she had sent Ms. Baldor's information and checks to the Durey Insurance Group, and that Ms. Baldor should contact the Durey Insurance Group for further assistance. Ms. Baldor's contacts subsequent to the latter part of March 1999 with respect to her health insurance coverage were exclusively with personnel who purported to be affiliated with the Durey Insurance Group. A representative of the Durey Insurance Group notified Ms. Baldor that her health insurance would be provided by the Neighborhood Health Partnership, and Ms. Baldor's premium checks were made payable to the Durey Insurance Group. Finally, the Neighborhood Health Partnership Enrollment Form identifying Ms. Baldor as an employee of International Marketing is dated approximately two months after Ms. Machado's last contact with Ms. Baldor, and the Department failed to present any evidence tending to establish that Ms. Machado had any involvement in the preparation of this form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance issue a final order dismissing the Amended Administrative Complaint against Ingrid Machado. DONE AND ENTERED this 15th day of November, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 15th day of November, 2000.
