CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 2515, 2011 WL 680282
...improperly obtained by an employer, chapter 440 provides a double-barreled remedy that allows a carrier to cancel an employer's policy and collect greatly enhanced retroactive premiums and damages, even in the absence of an injury or accident. See §§
440.381(6)(a),
440.42(3), Fla....
...Employers' Obligations and Carriers' Rights at the Time of Application In the application process, and before issuing a policy of insurance, a carrier *158 may request any "information necessary to enable the carrier to accurately underwrite the applicant." § 440.381(1), Fla....
...s of the policy, estimated premiums, the employer, and the application. These remedies, however, allow for only the cancellation, but not the voiding of a policy, along with the collection of penalties, damages, and additional premiums. For example, section 440.381(6)(a), Florida Statutes (2007), provides: If an employer understates or conceals payroll, or misrepresents or conceals employee duties so as to avoid proper classification for premium calculations, or misrepresents or conceals informa...
...tion which gave rise to the actionable concealment and/or misrepresentations. [1] Zenith further argues *159 that no evidence was introduced that the Employer's misrepresentations or concealment were made for the purpose of avoiding premiums, making section 440.381(6)(a) inapplicable. These arguments, however, do not thwart the applicability of section 440.381(6)(a) and its allowance for Zenith to seek from the Employer in circuit court, ten times the difference in premium paid and the amount he should have paid, and reasonable attorney's fees. Contrary to Zenith's argument, the remedy provided for in section 440.381(6)(a) is not limited to misrepresentations made in the application process; rather, the language of the statute is sufficiently broad to encompass any pertinent misrepresentation or concealment made by an employer, whether made at the time of application or thereafter. See 440.381(1)-(8), Fla. Stat. (2007). Moreover, section 440.381(6)(a) predicates a carrier's recovery of damages upon the concealment or misrepresentation of employee's duties or payroll information, which in fact, prohibits or avoids (or is pertinent to) the proper classification of employees for...
...nothing to remove this case from the class of cases involving an understatement of or concealment of payroll, or misrepresentation of employee duties "so as to avoid proper classification for premium calculations"for which a remedy is provided in section 440.381(6)(a)....
...perform unfettered audits, with attending remedies thereto. Under the requirements of chapter 440 and the application signed by the Employer, the Employer was required to timely and regularly submit to Zenith quarterly employee earnings reports, see section 440.381(4), Florida Statutes, and, update his application monthly....
...audits as desired (including physical, on-site audits), but no less frequently than "biennially." The audits must include, but are not limited to, the review of state and federal reports of employee income, payroll, and other accounting records. See § 440.381(3), Fla....
...nts, federal reports of employee income, and cash disbursement journals. If an employer fails to provide reasonable access to payroll records, the employer shall pay a premium to the carrier up to three times the recent estimated annual premium. See § 440.381(8), Fla....
...meaning the carrier remains liable to the employee) from the *161 employer, along with attorney's fees, actionable in circuit court, for benefits due to an employee who is not reported by the employer in the mandatory quarterly earnings reports. See § 440.381(7), Fla....
...Despite Zenith's failure to fully enforce its rights and remedies available under chapter 440, it argues and the JCC concluded, its circumstances are unique because it would not have issued the policy in question had the Employer answered the questions in the application correctly. Zenith asserts the remedies afforded by section 440.381(6)(a), Florida Statutes (2007), do not address the type of fraud committed by the Employer, forcing it to pay on a contract of insurance it did not wish to write....
...ade and proven in every instance of unlawful employment, unforeseen or misrepresented risk, or where the employer has obtained or maintained workers' compensation insurance coverage through the commission of criminal actsthe very subject matter of section 440.381(6)(a)....
...in addition to the assessment of punitive premiums, other penalties and remedies, including complete indemnification from the employer for all benefits due an employee who is not reported as earning wages in mandatory quarterly earnings reports. See § 440.381(7), Fla....
...its" ( see section
440.107(2)); but, whenever the department determines that an employer has materially understated payroll, or concealed employee duties, the carrier may, thereafter cancel the policy after giving written notice to the employer. See §
440.381(6)(b), Fla....
CopyCited 2 times | Published | District Court, M.D. Florida | 2004 U.S. Dist. LEXIS 25088, 2004 WL 2735533
...240, tab A, H 35, and Tab I, II14.) The Policy's plain language, as previously set forth, and Florida law require American Home to conduct an audit and to calculate the final premium "to ensure that the appropriate premium is charged for workers' compensation coverage." § 440.381(3), Fla....
...Rule 4-189.003(4) (2000). Final premium must be based on actual, not estimated, payroll or remuneration paid during the Policy term and must be based on a lawful allocation of that payroll between classification code Numbers 8861 and 9110. (Dkt. 240, tab B(1) at p. 5); § 440.381, Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1993 WL 53126
...Third and finally, the Arizona rescission statute on which the carrier relied was contained within the Arizona W/C Act, whereas section
627.409(1) is part of the general insurance code of Florida and a specific provision in the W/C law addresses the situation presented here and provides a remedy for the Carrier. See section
440.381(6), Florida Statutes (Supp. 1990). Claimant argues that it was error to apply section
627.409(1) to this case because the circumstances involving Employer's misrepresentations to the Carrier are specifically and adequately covered within Chapter 440. Section
440.381(6) states: If an employer intentionally understates payroll or misrepresents employee duties so as to avoid proper classification for premium calculations, the employer shall pay, in addition to any additional premium due resulting from an audit, a 12-percent penalty on the amount underpaid....
...ture has addressed the problem of employer misrepresentations and has provided a specific remedy for a carrier, against an employer, as well as penalties against any party filing false, misleading, or incomplete information relating to coverage. See section 440.381, Florida Statutes (1989)....
CopyAgo (Fla. Att'y Gen. 1999).
Published | Florida Attorney General Reports
...carrier with whom the county has contracted to provide coverage. The state and its political subdivisions are recognized as employers for purposes of Chapter 440 , Florida Statutes, who must "secure the payment of compensation under this chapter." 4 Section 440.381 , Florida Statutes, addresses the requirements for an employer's application for coverage by a carrier and directs the Department of Insurance to adopt rules for applications for coverage....
...business, past and prospective payroll, estimated revenue, previous workers' compensation experience, employee classification, employee names, and any other information necessary to enable a carrier to accurately underwrite the applicant ." 5 (e.s.) Section 440.381 (3), Florida Statutes, directs the Department of Insurance and the Department of Labor and Employment Security to "establish by rule minimum requirements for audits of payroll and classifications in order to ensure that the appropriat...
...ployees and that the accuracy of employee classifications has been verified. Specific to payroll verification audits, the rules must include the use of state and federal reports of employee income, payroll and other accounting records. 6 Pursuant to section 440.381 (5), Florida Statutes: "Employers shall make available all records necessary for the payroll verification audit and permit the auditor to make a physical inspection of the employer's operation....
...4 See, s.
440.38 (1), Fla. Stat., stating that "[e]very employer shall secure the payment of compensation under this chapter," and s.
440.02 (15), Fla. Stat. (1998 Supp.), defining "[e]mployer" as "the state and all political subdivisions thereof . . . " 5 Section
440.381 (1), Fla. Stat. 6 Section
440.381 (3), Fla. Stat. 7 Section
440.381 (8), Fla....
