Florida Weld. & E. Serv., Inc. v. American Mut. Ins. Co.

285 So. 2d 386
CourtSupreme Court of Florida
DecidedNovember 7, 1973
Docket41049
StatusPublished
Cited by35 cases

This text of 285 So. 2d 386 (Florida Weld. & E. Serv., Inc. v. American Mut. Ins. Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Weld. & E. Serv., Inc. v. American Mut. Ins. Co., 285 So. 2d 386 (Fla. 1973).

Opinion

285 So.2d 386 (1973)

FLORIDA WELDING & ERECTION SERVICE, INC., a Florida Corporation, Appellant,
v.
AMERICAN MUTUAL INSURANCE COMPANY OF BOSTON, a Massachusetts Corporation, Appellee.

No. 41049.

Supreme Court of Florida.

November 7, 1973.

*387 Eli H. Subin, of Roth, Segal & Levine, Orlando, for appellant.

Morton Kosto, Orlando, of Feibelman, Friedman, Britton & Stettin, Fort Lauderdale, for appellee.

Raymond Ehrlich, Jacksonville, for American Mutual Ins. Alliance, as amicus curiae.

DEKLE, Justice.

This is an appeal from a summary final judgment entered by the Orange County Circuit Court for American Mutual Insurance Company of Boston, the plaintiff below, upon a claim for insurance premiums. In so doing, the Circuit Court passed upon the constitutionality of Fla. Stat. §§ 627.091 and 627.291(2), F.S.A. We therefore have jurisdiction pursuant to Fla. Const. Art. V, § 3(b)(1), F.S.A. (1973).

The claim for premiums on workmen's compensation policies arose from the company's mistake in issuing one policy with incorrect experience modification factors.[1] There is a direct relationship between the experience modification factors and the amount of premium, and in this case the company erroneously billed its insured, the appellant, for less premium than would have been due for the period because it mistakenly used a lower experience modification factor than it should have used. This mistake, however, does not avail the appellant inasmuch as § 627.072 compels the application of factors which must be applied in the determination of rates as to all insureds. This is necessary to insure that there is no discrimination between insureds, much as we know to be the case in the instance of tariffs in the shipment of merchandise where uniform rates are required to be charged to avoid discrimination. In the fixing of rates under § 627.072 the factors set forth there include that which was required to be considered here, namely, the "past and prospective loss experience."

*388 The insured challenges the constitutionality of the "rating" statutes involved, in two respects:

(1) § 627.091 allows, but does not require, insurance companies to delegate to a licensed rating organization, the responsibility for filing with the Insurance Commissioner the company's manuals of classifications, rules and rates;

(2) § 627.291(2) delegates to such a rating organization, the requirement to provide a means for complaints to be heard upon the manner that the rating system filed under the preceding § 627.091 has been applied.

Appellant contends that these two sections of the statute are an unlawful delegation of legislative power, and a denial of due process and equal protection under the state and federal constitutions.[2]

The constitutional provision vesting legislative power (Fla. Const. art. III, § 1) requires of course that only the Legislature shall establish the legislative policies and standards of the state. It is also clear, however, that the Legislature may delegate to authorized officials and agencies the authority to promulgate subordinate rules within prescribed limits and to determine facts to which the established policies of the Legislature are to apply.[3] What the Legislature may not delegate is the power to enact laws or to declare what the law shall be or to exercise unrestricted discretion in applying the law.[4]

Fla. Stat. § 627.091, F.S.A., when read in conjunction with Fla. Stat. § 627.072,[5] F.S.A., is not an improper delegation of legislative power because, through Section 627.072, the necessary guidelines and standards to be followed in establishing rates and rating plans have been provided by the Legislature.

The second constitutional attack, also with regard to an alleged improper delegation of legislative power, is the above-noted attack on § 627.291(2) which provides for an appeal from the rates applied under the rating law in the other sections hereinabove set forth. It provides as follows:

"(2) As to workmen's compensation ... every rating organization and every insurer which makes its own rates shall provide within this state reasonable means whereby any person aggrieved by the application of its rating system may be heard, in person or by his authorized representative, on his written request to review the manner in which such rating system has been applied in connection with the insurance afforded him. If the rating organization or insurer fails to grant or rejects such request within thirty days after it is made, the applicant may proceed in the same manner as if his application had been rejected. Any party affected by the action of such rating organization or insurer on such request may, within thirty days after written notice of such action, appeal to the department, which, after a hearing held upon not less than ten days' written notice to the appellant and to such rating organization or insurer, may affirm or reverse such action." (Emphasis added)

Section 627.291(2) is challenged as an improper legislative grant to the rating agency of "unlimited discretion" without guidelines to determine how and when an aggrieved party may be heard. We cannot *389 agree. The requirement of the statute for "reasonable means" to be heard is sufficient. Whether the means so provided thereunder are "reasonable" is open to factual challenge and this is not presented here. Moreover, the use of a licensed rating organization by an insurance company is optional, thus preserving the alternative right of direct filing of rate classifications to apply, and then pursuing direct appeal to the Insurance Commissioner and thereafter to the district court. §§ 627.371, 627.391.

The further provision of § 627.291(2) challenged is its provision that if the rating organization for the insurer "fails to grant or rejects such request within thirty days after it is made, the applicant may proceed in the manner as if his application had been rejected." Actually, this is a safeguard favorable to the applicant to prevent delay in a decision, by the agency's indecision, and assures prompt disposition, allowing the applicant (appellant) to appeal direct to the department for a decision as early as 30 days. This is a very definite control or "guideline" assuring constitutional safeguards for a prompt hearing upon notice. Such safeguard does not mean that the applicant is "out" upon the mere passage of 30 days. It simply gives him the privilege of expediting his appeal within the 30 days, no matter the inaction of the agency in not acting promptly upon the complaint or in earlier rejecting it. The next sentence in the statute assures this:

"If the rating organization or insurer fails to grant or rejects such request within thirty days after it is made, the applicant may proceed in the same manner as if his application had been rejected. Any party affected by the action of such rating organization or insurer on such request may, within thirty days after written notice of such action, appeal to the department... ." (emphasis added)

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285 So. 2d 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-weld-e-serv-inc-v-american-mut-ins-co-fla-1973.