Nova Ins. Group v. Dept. of Ins.

606 So. 2d 429, 1992 Fla. App. LEXIS 9768, 1992 WL 221534
CourtDistrict Court of Appeal of Florida
DecidedSeptember 11, 1992
Docket91-2554
StatusPublished
Cited by6 cases

This text of 606 So. 2d 429 (Nova Ins. Group v. Dept. of Ins.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nova Ins. Group v. Dept. of Ins., 606 So. 2d 429, 1992 Fla. App. LEXIS 9768, 1992 WL 221534 (Fla. Ct. App. 1992).

Opinion

606 So.2d 429 (1992)

NOVA INSURANCE GROUP, INC., Appellant,
v.
FLORIDA DEPARTMENT OF INSURANCE, Appellee.

No. 91-2554.

District Court of Appeal of Florida, First District.

September 11, 1992.

*430 Arthur J. England, Jr., Charles M. Auslander, and Burt S. Hellman of Fine, Jacobson, Schwartz, Nash, Block & England, Miami, for appellant.

Helen Ann Hauser of Dittmar & Hauser, P.A., Coconut Grove, and Mary Beth Perry and Dennis K. Threadgill of the Dept. of Insurance, Tallahassee, for appellee.

ALLEN, Judge.

Nova Insurance Group, Inc. (Nova) appeals an order entered in this action arising under the Insurers Rehabilitation and Liquidation Act, sections 631.001 to 631.399, Florida Statutes (1989). In the challenged order, the trial court denied Nova's motion for relief from stay, directed that a certain escrow fund be transferred to the Florida Department of Insurance (the department) as ancillary receiver for a foreign insurer, and required Nova to file any claims it has against the fund in the circuit court of Leon County. We affirm in part and reverse in part.

On September 29, 1989, Central National Insurance Company of Puerto Rico (Central) executed a stock purchase agreement in which it agreed to sell all of the stock of American Professional Insurance Company (Ampro) to First Security Corporation. Days later, First Security Corporation assigned its rights and obligations as buyer of Ampro to Nova. The agreement contemplated a closing date on January 31, 1990 and a post-closing date sometime thereafter. On the closing date, Central was to deliver the stock of Ampro to Nova which would become its lawful owner, and Nova was to escrow $2,679,999, representing Ampro's net worth as of May 31, 1989, or "initial net worth." The escrow fund was to be distributed after the parties' approval of various financial statements and adjustments to Ampro's initial net worth. The agreement provided further that thirty days after the closing, an accounting firm working for Central would prepare and distribute to the parties Ampro's current balance sheet and other financial documents regarding Ampro's valuation known as the "closing date financial statements." Nova then had forty-five days in which to dispute or accept the documents. If Nova disputed the accuracy of the documents and the parties could not resolve the dispute within fifteen days, the matter would be referred to another accounting firm whose final determination would be binding. Based upon the closing date financial statements as finally determined, the purchase price would be adjusted upward or downward from the initial net worth figure on a dollar for dollar basis and the cash due from Nova on the post-closing date would be adjusted accordingly.

The parties later modified the stock purchase agreement to allow for a closing on February 8, 1990. On that date, Ampro's stock was transferred to Nova, Nova deposited into escrow the agreed-upon sum and the parties executed an escrow agreement recognizing Intercontinental Bank of Miami as their escrow agent. In the escrow agreement, Intercontinental Bank promised to hold the fund until authorized to disburse it in accordance with the provisions of the stock purchase agreement. Any disputes arising under the escrow agreement concerning disbursement of the money were to be settled by mutual agreement *431 or by a final judgment of the circuit court of Dade County.

On July 3, 1990, Nova notified Central of its dispute of the accuracy of Central's closing date financial statements. Thereafter, the parties tried unsuccessfully to resolve their dispute, and Nova sued Central in the circuit court of Dade County. Nova's amended complaint, filed in October of 1990, sought an order compelling arbitration of the parties' dispute by the accounting firm referenced in the stock purchase agreement, a declaration of the parties' rights under the escrow agreement, and, alternatively, a judgment directing the escrow agent to disburse the escrow funds to Nova due to Central's material breach of the escrow agreement. All three counts of the complaint sought a judgment against Central for Nova's attorney's fees and costs. Central answered the complaint, asserted various affirmative defenses alleging that Nova's dispute of the accounting firm's valuation of Ampro was untimely, and filed a counterclaim.

While the suit between Nova and Central was pending, Central was declared insolvent and Puerto Rico's commissioner of insurance was appointed as the company's liquidator. Thereafter, the department petitioned the trial court for appointment as Central's ancillary receiver for purposes of liquidation. On January 28, 1991, the petition was granted. The court's order authorizes the department to take immediate possession of Central's property "of every kind whatsoever and wherever located in this State," commence and maintain legal actions necessary to administer the receivership, and collect all debts owing to Central which it is economically feasible to collect. The order also gives notice pursuant to section 631.041(1), Florida Statutes, that the department's petition operates as an automatic stay, applicable to all persons other than the receiver, which prohibits the "commencement or continuation of judicial, administrative or other action or proceeding against [Central] or against its assets or any part thereof."

Thereafter, the department sought an order to show cause why the money held in escrow by Intercontinental Bank in connection with the sale of Ampro should not be transferred to the department for placement in a separate receivership account. The department argued that at least some portion of the money had to be an asset of Central's and any person making a claim to that money should be required to file his claim in the trial court. Pursuant to the department's request, the trial court issued a show cause order, to which Nova responded. Nova opposed any transfer of the escrowed funds, arguing that because it had funded the account and the conditions of its disbursement had never been satisfied, the money remained its own and therefore could not be an asset of Central's subject to control by the department as receiver. Simultaneously, Nova moved for relief from the automatic stay affecting its Dade County suit, arguing that the circuit court of Dade County was the proper forum for a determination of Central's right to any portion of the escrowed money.

In the order we now review, the trial court denied Nova's motion for relief from the stay and directed the transfer of the funds held by Intercontinental Bank to the department as ancillary receiver for Central. The order requires the department to deposit the funds in a separate, interest-bearing account in a bank which is an approved depository in the state and prohibits the department from disbursing the funds without a court order. Finally, the order directs Nova to file in the trial court "all claims which it asserts against the funds ... and, in accordance with Chapter 631, Florida Statutes, any claims which it asserts against the Receivership." Nova asserts as error the court's transfer of the escrowed funds, its imposition of the claims procedure of Chapter 631 and its denial of Nova's motion for relief from the stay. We address Nova's arguments seriatim.

The Insurers Rehabilitation and Liquidation Act is Florida's version of the Uniform Insurers Liquidation Act originally approved in 1939 by the National Conference of Commissioners on Uniform State Laws and the American Bar Association. See Unif. Insurers Liquidation Act, 13 U.L.A. 322 (1986); and Springer v. Colburn, *432

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Imagine Ins. Co., Ltd. v. State Ex Rel. Dept. of Financial Services
999 So. 2d 693 (District Court of Appeal of Florida, 2008)
MRCo, Inc. v. Juarbe-Jimenez
521 F.3d 88 (First Circuit, 2008)
Southeastern Staffing v. Fl. Dept. of Ins.
728 So. 2d 248 (District Court of Appeal of Florida, 1998)
PAYROLL TRANSFERS INTERSTATE v. Forshey
694 So. 2d 80 (District Court of Appeal of Florida, 1997)
Hobbs v. Don Mealey Chevrolet, Inc.
642 So. 2d 1149 (District Court of Appeal of Florida, 1994)
Florida Department of Insurance v. Centex-Great Southwest Corp.
639 So. 2d 646 (District Court of Appeal of Florida, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
606 So. 2d 429, 1992 Fla. App. LEXIS 9768, 1992 WL 221534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nova-ins-group-v-dept-of-ins-fladistctapp-1992.