12-002938F Premier Group Insurance Company vs. Office Of Insurance Regulation And The Financial Services Commission Status: Closed DOAH Final Order on Thursday, October 4, 2012.

Summary: Petitioner is entitled to attorneys' fees and costs as the prevailing party in a challenge to an unadopted rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PREMIER GROUP )

INSURANCE COMPANY, )

)

Petitioner, )

)

vs. ) Case No. 12 - 2938F

)

OFFICE OF INSURANCE )

REGULATION AND THE )

FINANCIAL SERVICES COMMISSION, )

)

Respondents. )

)

FINAL ORDER

This cause has come before the undersigned on the parties '

stipulation with respect to the resolu tion of the amount of

attorneys' f ees to be awarded to Petitioner . Based upon the

stipulation of the parties, no hearing of the matter is

necessary.

APPEARANCES

For Petitioner: James McKee, Esquire

Foley & Lardner, LLP

Suite 900

106 East College Avenue

Tallahassee, Florida 32301

For Respondent: Kenneth Tinkham, Esquire

Office of Insurance Regulation

200 West Gaines Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue to be determined is the amount of attorney s' fees

and co sts to be awarded to Petitioner pursuant to section

120.595(4 ), Florida Statutes (2011).

PRELIMINARY STATEMENT

This is an action for attorneys' fees and costs following a

successful challenge by Petitioner to a statement defined as a

rule but not adopted as such, in violation of section 120.54,

Florida Statutes. I n Case No. 12 - 1201RU, a Final Order was

issued on July 5, 2012 , holding that the statement of the Office

of Insurance Regulation challenged by Premier constituted an

unadopted rule. The Final Order retained jurisdiction to

determine the amount of attorney s' fees and costs to be awarded

to Petitioner, and directed that any motion seeking fees and

costs must be filed within 60 days.

On September 4, 2012, Petitioner filed a Motion for the

Determination of Amoun t of Attorney's Fees and Costs. On

Septemb er 11, 2012, a new case number, Case No. 12 - 2938F, was

assigned to address the amount of the attorney s ' fees.

On September 13, 2012, an Order was entered directing

Petitioner to file an itemized statement listing the fees and

costs for which it seeks reim bursement no later th an October 3,

2012, and providing a timeline for responses thereto and for

providing dates for hearing.

On October 2, 2012, the parties filed a Stipulation as to

Attorney's Fees, along with a Stipulated Final Order. Based on

the stip ulation of the parties, the following findings of fact

and conclusions of law are made:

FINDINGS OF FACT

1. Petitioner, Premier Group Insurance Company

("Premier"), filed a challenge to an agency statement that had

not been adopted as a rule in Premier G roup Insurance Company v.

Office of Insurance Regulation and Financial Services

Commission , DOAH Case No. 12 - 1201RU (Fla. DOAH July 5, 2012).

2. A Final Order was entered finding that the statement of

the Office with respect to the allowance of federal i ncome taxes

as an expense for excess profits reporting was an unadopted

rule.

3. Premier was the prevailing party i n Case No. 12 - 1201RU.

4. As detailed more thoroughly in the Final Order in Case

No. 12 - 1201RU, the Office was on notice that the agency

statement may constitute an unadopted rule for substantially

more than 30 days preceding the filing of the Petition in that

case.

5 . Premier incurred attorneys' fees and costs in its

challenge to the Office's agency statement in excess of $50,000 .

6 . The parties have agreed that $50,000 .00 in attorney s '

fees shall be awarded to Premier.

CONCLUSIONS OF LAW

7 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with se ctio ns 120.569 and 120.57(1),

Florida Statutes (2012).

8 . Section 120.595(4), Florida Statutes, provides in

pertinent part:

(4) CHALLENGES TO AGENCY ACTION PURSUANT TO

SECTION 120.56(4). --

(a) If the appellate court or

administrative law judge determi nes that all

or part of any agency statement violates s.

120.54(1)(a), or that the agency must

immediately discontinue reliance on the

statement and any substantially similar

statement pursuant to section 120.56(4)(e),

a judgment or order shall be entered against

the agency for reasonably costs and

reasonable attorney's fees, unless the

agency demonstrates that the statement is

required by the Federal Government to

implement or retain a delegated or approved

program or to meet a condition to receipt of

fede ral funds.

(b) . . . The administrative law judge shall

award reasonable costs and reasonable

attorney's fees accrued by the petitioner

prior to the date the notice was published,

unless the agency proves to the

administrative law judge that it did not

kn ow and should not have known that the

statement was an unadopted rule. Attorney's

fees and costs under this paragraph and

paragraph (a) shall be awarded only upon a

finding that the agency received notice that

the statement may constitute an unadopted

rul e at least 30 days before a petition

under section 120.56(4) was filed and that

the agency failed to publish the required

notice of rulemaking pursuant to section

120.54(3) that addresses the statement

within that 30 - day period. . . . An award of

attorney' s fees as provided by this

paragraph may not exceed $50,000.

9. Premier is entitled to attorney's fees and costs

pursuant to section 120.595(4).

10. The parties have stipulated that Premier is entitled

to an award of $50,000 .00 , the maximum amoun t allowed pursuant

to section 120.595(4). The undersigned concludes that the

amount of the award is reasonable.

Accordingly, it is

ORDERED that Petitioner, Premier Group Insurance Company,

is hereby awarded the sum of $50,000.00 in attorney's fees an d

costs. The above sum is to be paid by Respondent, as provided

in the parties' stipulation, on or before the 60th day following

the entry of this Final Order.

DONE AND ORD ERED this 4th day of October , 2012 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 4th day of October, 2012 .

COPIES FURNISHED:

James A. McKee, Esquire

Foley and Lardner, LLP

Suite 900

106 East College Avenue

Tallahassee, Florida 32301

[e-mail]

Belinda H. Miller, General Counsel

Office of Insurance Regulation

Suite 612K

200 East Gaines Street

Tallahassee, Florida 32399 - 4206

[e-mail]

Kenneth Tinkham, Esquire

Office of Insurance Regulation

200 East Gaines Street

Tallahassee, Florida 32399

kenneth.t [e-mail]

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellat e Procedure. Such proceedings are commenced by

filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompan ied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.