Florida/Georgia Personal Injury & Workers Compensation

...." The Department also maintains that it implemented Section 627.062(1), Florida Statutes (1979), which provides: "The rates for all classes of insurance to which the provisions of this part are applicable shall not be ... unfairly discriminatory." "Unfairly discriminatory" is not defined in the Code. However, Section 627.0651, Florida Statutes (1979) (also implemented, according to the Department, in its promulgation of Rule 4-43.03), provides several standards to be applied by the Department in making a determination as to whether a rate is unfairly discriminatory. In particular, Section 627.0651(6) provides: (6) One rate shall be deemed unfairly discriminatory in relation to another in the same class if it clearly fails to reflect equitably the difference in expected losses and expenses....

...[7] On the other hand, the insurance companies contend that "unfairly discriminatory" and "equitable" are technical words, with a particular meaning in the insurance industry, and that Section 626.9541(15)(h) must be construed with this meaning in mind. United States v. Cuomo, 525 F.2d 1285, 1291 (5th Cir.1976). Reading Section 627.0651(6) in pari materia with the other standards contained in Section 627.0651(3) through (8), the insurance companies urge that the word "equitably" (used in Section 627.0651(6)), means "accurately" in the actuarial sense....

...f the criteria prohibited by Rule 4-43.03 necessarily results in unfair discrimination. We find it highly significant that in presenting its argument on this point the Department has changed its own interpretation of the word "equitably," as used in Section 627.0651(6), as well as its interpretation of the phrase "unfairly discriminatory," relevant to this proceeding....

...s absence. Department of Health and Rehabilitative Services v. Florida Psychiatric Society, Inc., 382 So.2d 1280 (Fla. 1st DCA 1980). Turning again to the statutes, we note that when the legislature enacted Section 626.9541(15)(h), it also reenacted Section 627.0651(3) through (8), which correspond with the Department's settled interpretation that rates "reflect equitably the difference in expected losses" if the rates reflect those differences as accurately as possible....

...Department to implement those terms within the "fairness" degree enacted. The court also finds it "highly significant," to the prejudice of Rule 4-43.03, that the rule represents a change in the Department's "own interpretation" of another statute, section 627.0651(6)....

...But all this debate overlooks the critical fact that subsection (h) of section 626.9541(15) was newly enacted by chapter 77-468, section 19, effective Sept. 1, 1977. The "historic" policy to which the court would bind the Department was developed under a considerably earlier statute, which since 1977 is numbered section 627.0651(6) but was previously, since 1971, numbered section 627.082(1)(e)3....

...ting the several arguments advanced unsuccessfully against it, I sense that several of those arguments — what the hearing officer thought after a seven-day trial, what the senate committee did to a substitute amendment, how the Department construed section 627.0651(6), nee 627.082(1)(e)3, before subsection (h) of 626.9541(15) became law — are but servants to an underlying objection that would yet disapprove the rule *927 after all the lesser objections have been met and scattered....

...This rule was not challenged in this proceeding and therefore will not be addressed. [4] Rule 4-43.03 refers to rulemaking authority of the Department under Sections 624.308(1) and 626.9611, Florida Statutes (1979); and as the laws being implemented Sections 626.9541(15)(h), 627.031(1)(a), 627.062(1), and 627.0651, Florida Statutes (1979)....

...Further, there was testimony that there are differences in expected loss experience between those who qualify for scholastic achievement discount and those who do not. [9] Section 626.9541(15)(h) became effective September 1, 1977. [10] Quoted language is from Section 627.0651(6), Florida Statutes. See also, particularly, the language of Section 627.0651(7), (8)....

...n's insurance rate increase without notice or hearing pursuant to section *1324 120.59(3). Rather than exhaust its administrative remedies, Criterion filed suit in circuit court seeking declaratory and injunctive relief as well as a declaration that section 627.0651, under which the department acted, was facially unconstitutional....

...The circuit court ruled that the statute "did not appear to be in violation of any constitutional principle," and dismissed the remaining issues raised in Criterion's complaint with prejudice. In affirming, this court did not address the constitutionality of section 627.0651 except peripherally, directing its attention instead to the questions of whether Criterion could bypass its administrative remedies by going to circuit court, and whether the trial court correctly determined it lacked jurisdiction to proceed once it found section 627.0651 to be facially constitutional....

...In Criterion, the insurance company's complaint primarily raised issues concerning the propriety of the department's order disapproving its rate increase. This order clearly amounted to agency action for which the Administrative Procedure Act provides a remedy. Criterion's constitutional attack on section 627.0651 centered around the department's alleged unconstitutional application of section 627.0651. Under established judicial precedent, a suit in circuit court challenging the constitutional deficiencies in the administrative process should not be allowed. Key Haven, 427 So.2d at 158. Criterion's contention that section 627.0651 was facially unconstitutional was a clearly secondary consideration, most probably viewed by the court as raised solely as a means of getting the case into circuit court....

...Therefore, the doctrine of exhaustion of administrative remedies is not a controlling factor in this case as it was in Criterion, and does not deprive the circuit court of jurisdiction to proceed. [2] Criterion is further distinguishable in that the question of the facial constitutionality of section 627.0651 was at issue when the trial court considered the motion to dismiss....

...issues, to be decided absent a factual record. See Criterion, 458 So.2d at 26. This argument gives too much weight to that opinion. In Criterion, this court simply ruled that the question raised in that case, namely, the facial constitutionality of section 627.0651, was a legal one which could be determined absent the presentation of evidence....

...Handley of Gurney & Handley, Orlando, for appellant. Daniel Y. Sumner and Ruth L. Gokel, Tallahassee, for appellees. ERVIN, Chief Judge. Criterion Insurance Company appeals from the trial court's final judgment upholding the facial constitutionality of Section 627.0651(10), Florida Statutes (1982), and dismissing with prejudice Criterion's amended complaint seeking injunctive and declaratory relief. We affirm. On October 13, 1982, Criterion submitted to the Department of Insurance (Department), pursuant to section 627.0651, Florida's rate filing statute, a rate filing notifying the Department that Criterion had implemented rate increases for personal injury protection and uninsured motorist coverages effective October 1, 1982. On February 22, 1983, the Department, pursuant to section 627.0651(10), notified Criterion by its "Notice of Intent to Issue Final Order" that the rate filing "may be unfairly discriminatory or excessive among the members of the class affected." Criterion requested an administrative hearing which was eventually held on June 23, 1983....

...nd uninsured motorist coverages, including coverages for bodily injury, property damage, medical payments, comprehensive, collision, towing and labor. The Department took the position that this rate filing was within the prohibited time period under section 627.0651, which provides in part: After the department notifies an insurer that a rate may be excessive, inadequate, or unfairly discriminatory, unless the department withdraws the notification, the insurer shall not increase the rate until t...

...ted an immediate danger to the public health, safety or welfare in that Criterion "is charging and collecting from insurance buying consumers of the State of Florida rates which have been illegally filed, and in utter derogation of the provisions of Section 627.0651(10), F.S....

...*25 (e.s.) At the same time the Department notified Criterion of its right to request a 120.57(1) administrative hearing. Thereafter, Criterion filed a complaint in the circuit court seeking injunctive and declaratory relief and attacking the facial constitutionality of section 627.0651....

...n rights since its rates are not unreasonable, arbitrary or excessive; Count II — the April 8 order unconditionally impairs the obligations of contract between Criterion and its policyholders; Count III — the Department misconstrues and misapplies section 627.0651(10); Count IV — section 627.0651(10) constitutes an unlawful delegation of legislative authority and is facially unconstitutional; Count V — the April 8 order is deficient for failure to recite with sufficient particularity the facts constituting the alleged danger...

...e return or rebate of premiums; Count VIII — the April 8 order, requiring return of premiums, constitutes the imposition of an administrative penalty not authorized by law and in violation of Article I, Section 18, Florida Constitution; Count IX — section 627.0651(10) is facially unconstitutional as it creates an unlawful, irrebuttable presumption that all rate increases within the prohibited time period are excessive, arbitrary, void or otherwise unlawful and, therefore, violative of Criterion's due process and equal protection rights....

...Following the hearing, the court granted Criterion's motion for leave to file its amended complaint, held that it had "no jurisdiction to consider any issue raised or raisable by the amended complaint other than the facial constitutionality vel non of section 627.0651(10)," and then ruled: This Court determines that facially Section 627.0651(10), Florida Statutes (1982 Supp.), does not appear to be in violation of any constitutional principle....

...In fact, before the court entered its order of dismissal, Criterion filed a memorandum of law in response to the motion to dismiss, stating, "[U]nder well established principles of law this court has jurisdiction to consider the constitutionality of ... Section 627.0651(10), Florida Statutes (1982)." In Criterion's memorandum, citing to Gulf Pines Memorial Park, Inc....

...[1] Section 21 of chapter 77-468 removed motor vehicle insurance from the scope of the general excessive rates provision contained in subsection (2) of section 627.062, Florida Statutes, and created new provisions dealing with excessive motor vehicle insurance rates by a new section 627.0651, Florida Statutes....

insurance policy to its insureds. We note that section 627.651(5), which is placed under Part VII, while providing

fundamental fairness and due process.”). . See, e.g., § 627.0651(10), Fla. Stat. (insurer or rating organization

...er pursuant to Fed.R.Civ.P. 15 to include the exhaustion defense and the Court grants the request. [17] See also State Farm Mut. Auto. v. Gibbons, 860 So.2d 1050 (Fla. 5th DCA 2003) (requiring exhaustion of a claim alleging a violation of Fla. Stat. § 627.0651(12), which prohibits insurance companies from including in their rate base for motor vehicle insurance policies monies paid on bad faith and punitive damages claims and related attorney's fees and costs)....

...Progressive noted that it was required to obtain approval from the Florida Office of Insurance Regulation (hereinafter "OIR") before offering the discount and that the OIR is required to determine whether a company's insurance rates are "excessive, inadequate, or unfairly discriminatory" pursuant to section 627.0651(2), Florida Statutes (2002)....

...Progressive thereafter filed this petition for writ of certiorari seeking review of the summary judgment. We grant the petition. This case is similar to State Farm Mutual Automobile v. Gibbons, 860 So.2d 1050 (Fla. 5th DCA 2003). Gibbons sued State Farm alleging that it had violated section 627.0651(12), Florida Statutes (2002), which prohibits companies from including in their rate base monies paid on punitive and bad faith claims and related costs and attorney's fees....

...The OIR then granted Gibbons' request and the circuit court lifted the stay. State Farm thereafter filed a petition for writ of certiorari in the Fifth District. The Fifth District agreed with State Farm and held that "the exclusive remedy for asserting a claim based on a purported violation of section 627.0651, is to seek administrative review pursuant to section 627.371, Florida Statutes (2002)....

...Goshorn, Jr., and Shannon McLin Carlyle, of The Carlyle Appellant Law Firm, The Villages, and Gregory S. Stark, of McKeever, Albert & Barth, Winter Park, for Respondent, Lisa Gibbons. TORPY, J. Respondent, Lisa Gibbons, sued her insurer, Petitioner, State Farm, alleging that State Farm had not complied with section 627.0651(12), Florida Statutes (2002), which prohibits insurance companies from including in their rate base monies paid on bad faith and punitive damages claims and related attorney's fees and taxable costs....

...V, section 4(b), Fla. Const.; Department of Children and Families v. L.D., 840 So.2d 432, 434 (Fla. 5th DCA 2003). We grant the petition. *1052 Contrary to the position taken by Gibbons, the exclusive remedy for asserting a claim based on a purported violation of section 627.0651, is to seek administrative review pursuant to section 627.371, Florida Statutes (2002)....

individual employer in accordance with ERISA. § 627.651(4), Fla. Stat. Here, the defendants maintain that

though it is not subject to the act, does section 627.651(4), Florida Statutes, exempt the Fund from

excessive motor vehicle insurance rates by a new section 627.0651, Florida Statutes. The relationship, if any