Thursday, May 18, 2017

Torts -- Workers' compensation immunity -- Special employer -- No error in entering summary judgment in favor of help supply services contractor based on finding that contractor was acting as plaintiff's special employer


42 Fla. L. Weekly D1121aTop of Form

Torts -- Workers' compensation immunity -- Special employer -- No error in entering summary judgment in favor of help supply services contractor based on finding that contractor was acting as plaintiff's special employer where record conclusively showed that plaintiff was employee of help supply services company, not contractor -- With respect to claims of intentional conduct and negligent hiring, among others, brought against help supply services company based upon conduct of worker who was operating conveyor belt at time plaintiff was injured, evidence did not show that worker operating conveyor belt was employed by help supply services company -- Evidence -- No abuse of discretion in refusing to consider worker's partially completed deposition as evidence where the deposition was taken prior to help supply services company becoming party to suit and no party with the same interest was present at the deposition -- Moreover, conclusive evidence showed that this worker was employed by contractor and not help services company

ANDRES MORERA, Appellant, v. WASTE MANAGEMENT INC. OF FLORIDA, a Florida corporation, TWIN LAKES LAND RECLAMATION, INC., a Florida corporation, WASTE COLLECTION, INC., a Florida corporation, and GL STAFFING SERVICES, INC., a Florida corporation, Appellees. 4th District. Case No. 4D14-3135. May 17, 2017. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Mily Rodriguez Powell, Judge; L.T. Case No. 12-013045 CACE (03). Counsel: Roy D. Wasson of Wasson & Associates, Chartered, Frank L. Labrador and Mary Margaret Schneider of Demahy, Labrador, Drake, Victor & Cabeza, and Jose Manuel Francisco, Miami, for appellant. Steven H. Osber and Emily A. Thomas of Kelley, Kronenberg, P.A., Fort Lauderdale, for appellees Waste Management Inc. of Florida and GL Staffing Services, Inc.

ON MOTION FOR REHEARING


(WARNER, J.) We deny the motion for rehearing but republish the opinion to correct a clerical error.

We affirm the final summary judgment in favor of defendants/appellees Waste Management Inc. of Florida and GL Staffing Services, Inc., in a suit for personal injuries. The trial court found that Waste Management had immunity from appellant's claims under Florida's Worker's Compensation Act because it was acting as appellant's “special employer.” We conclude that final summary judgment was properly entered because the record conclusively shows that Waste Management was immune from liability pursuant to section 440.11(2), Florida Statutes (2010), as appellant was an employee of Waste Collections, a help supply services company, as defined in Standard Industry Code Industry Number 7363 of the U.S. Department of Labor Standard Classifications.1 Although appellant argues on appeal that he should be considered as employed by a facilities support management service, defined in a separate standard, he did not make this argument to the trial court. Therefore, it is not preserved. See Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321 (Fla. 1st DCA 2011).

As to GL Staffing Services, appellant had filed suit against it for intentional conduct and negligent hiring, among other claims, based upon the conduct of worker Juarez, who was operating the conveyor belt at the time appellant was injured and whom appellant claimed was employed by GL. If GL did not employ Juarez, then it had no liability to appellant. On summary judgment, the evidence presented, including wage receipts and other documents, showed that Juarez was employed by Waste Collections, thus making him a co-employee of appellant. There was no evidence presented that GL employed Juarez and was thus in any way liable. The trial court did not abuse its discretion in refusing to consider Juarez's partially completed deposition, during which, appellant claimed, Juarez had testified he was a GL employee, not a Waste Collection employee. The deposition was cut short because of Juarez's transportation problems, and the parties were unable to locate him to complete the deposition. The deposition was taken prior to GL becoming a party to the suit, and no party with the same interest as GL was present. To use a deposition on the authority of Florida Rule of Civil Procedure 1.330(a), the party against whom it is offered must have been “present or represented at the taking of the deposition or who had reasonable notice of it[.]” Moreover, as we read the excluded deposition, Juarez did not say that he was employed by GL, but merely that GL sent him to the job site. The conclusive evidence of wage receipts and other documents show that Juarez was employed by Waste Collection, the help services contractor, and not GL. Therefore, the trial court did not err in granting summary judgment.

Affirmed. (GERBER and KUNTZ, JJ., concur.)

__________________

1Standard Industry Code Industry Number 7363 is incorporated through section 440.11(2), Florida Statutes, which provides:

The immunity from liability described in subsection (1) shall extend to an employer and to each employee of the employer which utilizes the services of the employees of a help supply services company, as set forth in Standard Industry Code Industry Number 7363, when such employees, whether management or staff, are acting in furtherance of the employer's business. An employee so engaged by the employer shall be considered a borrowed employee of the employer, and, for the purposes of this section, shall be treated as any other employee of the employer.

§ 440.11(2), Fla. Stat.

* * *

Civil procedure -- Dismissal -- Fraud on court -- Torts -- Automobile accident -- No abuse of discretion in dismissing complaint for fraud on court based on plaintiff's repeated failures to disclose prior neck and back injuries, although she had disclosed prior arm injury contained in same medical records


42 Fla. L. Weekly D1117bTop of Form

Civil procedure -- Dismissal -- Fraud on court -- Torts -- Automobile accident -- No abuse of discretion in dismissing complaint for fraud on court based on plaintiff's repeated failures to disclose prior neck and back injuries, although she had disclosed prior arm injury contained in same medical records

SHEILA BRYANT and CURTIS BRYANT, Appellants, v. RAYMOND MEZO, Appellee. 4th District. Case No. 4D16-386. May 17, 2017. Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Paul B. Kanarek, Judge; L.T. Case No. 312014CA001017. Counsel: Glen M. Blake of Blake, Mildner & Associates, P.A., Fort Pierce, for appellants. Carri S. Leininger of Williams, Leininger & Cosby, P.A., North Palm Beach, for appellee.

(MAY, J.) The plaintiffs appeal a final judgment of dismissal. They argue the trial court erred in dismissing their complaint for fraud upon the court. We affirm.

The plaintiff and her husband filed a negligence complaint against the defendant after a minor automobile accident. The plaintiff alleged she suffered neck and back injuries.

The accident was minor. The plaintiff was not transported from the scene and was able to return to work the next day. She did not begin receiving chiropractic treatment for her neck and back until two weeks after the accident. A few months later, the plaintiff had neck surgery.

In response to interrogatories, the plaintiff identified a prior worker's compensation claim in 1987 or 1988, in which she injured her left arm. She did not include any information about neck or back injuries. During her deposition, the plaintiff failed to mention any neck or back injuries, but stated she had only two prior injuries, an ankle and a left arm injury. She did not recall ever experiencing neck or back pain prior to the accident.

Records from the State of Florida's Division of Worker's Compensation however revealed the plaintiff filed two worker's compensation claims, one in 1989 and another in 1993, in which she complained of a cervical spine injury. The records contained a deposition from her former chiropractor, who testified that he treated her for a neck injury two to three days a week for nine months. She was treated more than seventy times for the cervical spine injury. She complained of “rather significant neck pain.” Her chiropractor concluded she had a seven percent impairment of her whole body related to her cervical spine.

Records from Indian River Medical Center revealed the plaintiff was treated for back-related injuries in 1991 and 2006, while billing records from Gilmore Chiropractic revealed she received chiropractic treatment several times during 2004. The plaintiff denied ever visiting a chiropractor prior to the accident.

The defendant moved to dismiss the plaintiffs' complaint for fraud upon the court and attached the billing history and records of the plaintiff's prior treatments. At the evidentiary hearing, the plaintiff reviewed the records, but continued to deny ever having any prior back or neck injuries or treatment. She was able to recall suffering from a prior arm injury in the 1980's, which was referenced in the same medical records as the prior spine injury that she could not recall.

The trial court found the plaintiff's alleged memory lapses were selective and her failure to disclose was intentional and untruthful. The court dismissed the complaint with prejudice. From this judgment, the plaintiffs now appeal.

The plaintiffs argue the trial court abused its discretion in dismissing the complaint with prejudice because the defendant did not show clear and convincing evidence that her failure to disclose prior injuries and medical treatment was attributable to fraud rather than a failed memory. The defendant responds that the plaintiff perpetrated a fraud upon the court, warranting the dismissal of the complaint with prejudice.

A trial court's decision to dismiss a case for fraud upon the court is reviewed under a narrowed abuse of discretion standard. Gilbert v. Eckerd Corp. of Fla., Inc., 34 So. 3d 773, 775 (Fla. 4th DCA 2010).

Fraud upon the court occurs when the evidence clearly and convincingly shows a party schemed to interfere with the court's ability to impartially adjudicate by intentionally hampering the presentation of the opposing party's defense. Herman v. Intracoastal Cardiology Ctr., 121 So. 3d 583, 588 (Fla. 4th DCA 2013). Where repeated fabrications undermine the integrity of a party's entire case, a dismissal for fraud upon the court is proper. Id.

Here, the trial court heard testimony and reviewed records documenting the plaintiff's prior neck and back injuries. The trial court determined the plaintiff's repeated failure to disclose prior back and neck injuries and treatments were intentional and untruthful. Clear and convincing evidence supports the trial court's decision to dismiss the complaint.

Not only did the plaintiff fail to disclose any prior neck or back injury, she continued to deny these injuries when confronted by records and medical bills related to those injuries. Her disclosed arm injury was contained in the same medical records as her prior neck injury. The trial court did not abuse its discretion in dismissing the plaintiffs' complaint.

This case is similar to Ramey v. Haverty Furniture Cos., Inc., 993 So. 2d 1014 (Fla. 2d DCA 2008). There, the plaintiff denied ever being treated for head or neck pain despite being prescribed several medications for headaches, receiving a CT scan, and visiting doctors over the span of several years. Id. at 1015-16. The court dismissed the complaint for fraud upon the court. Id. at 1021. While people are not required to remember every specific ailment from their lives, the plaintiff's memory failure was not an isolated incident. Id. at 1017.

Here, the plaintiff did not suffer from one isolated incident of neck and back pain. Rather, the records and bills established she suffered from years of documented pain and corresponding treatment. She denied reality even when confronted with the evidence.

Affirmed. (KLINGENSMITH and KUNTZ, JJ., concur.)

* * *

Attorney's fees -- Proposal for settlement -- Rejection -- Where attorney's fees were not sought in pleadings, proposal for settlement was not invalid for failing to state whether attorney's fees were part of claim


42 Fla. L. Weekly D1110dTop of Form

Attorney's fees -- Proposal for settlement -- Rejection -- Where attorney's fees were not sought in pleadings, proposal for settlement was not invalid for failing to state whether attorney's fees were part of claim -- Proposal for settlement not invalid for failure to state amount offered to settle punitive damages claim where punitive damages were not sought in complaint -- Error to deny attorney's fees based on finding that proposal was invalid

MICHAEL AGUADO, Appellant, v. ALLEN MILLER, Appellee. 1st District. Case No. 1D16-4589. Opinion filed May 16, 2017. An appeal from the Circuit Court for Escambia County. Thomas V. Dannheisser, Judge. Counsel: Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, and Adrian R. Bridges of Michles & Booth, P.A., Pensacola, for Appellant. Elizabeth A. Parsons and Megan Marie Hall of Wilson, Harrell, Farrington, Ford, Wilson, Spain & Parsons, P.A., Pensacola, for Appellee.

(PER CURIAM.) Appellant, the plaintiff below, seeks review of an order denying his motion for attorney's fees based on an unaccepted proposal for settlement. The trial court denied the motion based on its determination that the proposal was invalid because it did not strictly comply with section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442 in two respects: (1) it did not state whether attorney's fees were part of the claim to be settled, and (2) it did not state the amount offered to settle a claim for punitive damages. We reverse based on Kuhajda v. Borden Dairy Company of Alabama, LLC, 202 So. 3d 391 (Fla. 2016).1

In Kuhajda, the Court held that “if attorney's fees are not sought in the pleadings an offer of settlement is not invalid for failing to state whether the proposal includes attorney's fees and whether attorney's fees are part of the legal claim.” Id. at 393. This holding squarely rejects the first reason that the trial court found Appellant's proposal for settlement to be invalid. It likewise undermines the second reason because, to paraphrase the district court decision approved by the Court in Kuhajda, it would make no sense to require the offeror to state in its proposal for settlement that the offer does not include punitive damages when the plaintiff did not claim an entitlement to them and could not recover them because of the failure to plead. See id. at 396 (quoting Bennett v. Am. Learning Sys. of Boca Delray, Inc., 857 So. 2d 986, 988-89 (Fla. 4th DCA 2003)).

Here, Appellant did not seek punitive damages in his complaint. Accordingly, although there would have been no harm in Appellant including a statement in his proposal for settlement indicating that no portion of the amount offered was for punitive damages, the absence of such a statement does not render the otherwise unambiguous proposal invalid. See Lucas v. Calhoun, 813 So. 2d 971, 973 (Fla. 2d DCA 2002) (“We conclude that the ‘if any' language of subsection (E)[2] requires a proposal for settlement to include terms for settlement of a punitive damage claim only when the pleadings contain a pending claim for punitive damages. In the absence of such a claim, the rule does not require a party to include needless ‘not applicable' language in the proposal.”).

Based on Kuhajda (and because we find no merit in Appellee's “tipsy coachman” arguments for affirmance), we reverse the order denying Appellant's motion for attorney's fees and remand for the trial court to determine the amount of the fee award.

REVERSED and REMANDED with directions. (WETHERELL, OSTERHAUS, and M.K. THOMAS, JJ., CONCUR.)

__________________

1The trial court did not have the benefit of Kuhajda when it ruled on Appellant's fee motion, and its ruling was compelled by then-controlling precedent from this court that was quashed in Kuhajda.

2Fla. R. Civ. P. 1.442(c)(2)(E) (“A proposal [for settlement] shall . . . state with particularity the amount proposed to settle a claim for punitive damages, if any.”) (emphasis added); see also § 768.79(2)(c), Fla. Stat. (“An offer [of settlement] must . . . [s]tate with particularity the amount offered to settle a claim for punitive damages, if any.”) (emphasis added).

* * *

Thursday, May 11, 2017

Insurance -- Subrogation -- Limitation of actions -- Subrogation action filed within 4 years of date water damage occurred was timely -- Trial court erred in dismissing action as barred by statute of limitations


42 Fla. L. Weekly D1085bTop of Form

Insurance -- Subrogation -- Limitation of actions -- In subrogation action by insurer against defendant alleging that defendant negligently repaired insured's roof, resulting in water damage, limitations period commenced at time of the water damage, rather than at the time of the negligent repair -- Subrogation action filed within 4 years of date water damage occurred was timely -- Trial court erred in dismissing action as barred by statute of limitations

COMPANION PROPERTY AND CASUALTY GROUP, Appellant, v. BUILT TOPS BUILDING SERVICES, INC., Appellee. 3rd District. Case No. 3D16-2044. L.T. Case No. 16-3100. May 10, 2017. An Appeal from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez, Judge. Counsel: Wadsworth Law, LLLP, Orlando J. Romero and Christopher W. Wadsworth, for appellant. Ludovici & Ludovici, P.A. and Susan M. Ludovici, for appellee.

(Before SALTER, EMAS and FERNANDEZ, JJ.)

(FERNANDEZ, J.) Companion Property & Casualty Group appeals the trial court's final order dismissing with prejudice Companion's Amended Complaint due to the expiration of the statute of limitations in section 95.11(3)(c), Fla Stat. (2012). We reverse because the trial court erred in finding that Companion's action was time-barred and thus erred in dismissing it.

On February 8, 2016, Companion filed its subrogation action with the trial court. In its initial complaint, Companion, as the insurer for the property allegedly damaged by the appellee/Built Tops Building Services, Inc., asserted its subrogation claim against Built Tops. Companion pled in Paragraph 5 of its complaint that Built Tops performed the negligent repairs on the insured/subrogor's roof on or about November 21, 2006. In paragraph 6 of its complaint, Companion pled that as the result of Built Tops' faulty repairs, the insured condominium building was damaged by water that permeated through the insured's roof on February 9, 2012. Companion paid its insured $31,937.87 in proceeds under its insurance policy. On February 8, 2016, Companion filed its complaint against Built Tops.

On June 24, 2016, Companion filed an amended complaint with the trial court, as Built Tops did not file a responsive pleading to the initial complaint. In its amended complaint asserting its subrogation rights, Companion again contended that Built Tops performed the negligent repairs on the insured roof on or about November 21, 2006 and further pled, as a result of the faulty repairs, that the insured condominium building suffered a water loss on February 9, 20121.

On July 8, 2016, Built Tops moved to dismiss the amended complaint. Built Tops asserted that the applicable four-year statute of limitations had run on the filing of Companion's complaint four years after the date of the negligent repairs performed by Built Tops and not four years after the date of the injury, which was the water loss, that triggered Companion's obligation to issue payment to its insured. Built Tops argued that Companion's claim was time-barred and should be dismissed with prejudice.

On August 1, 2016, the parties appeared before the trial court on Built Tops' motion to dismiss. At the hearing, Companion contended that the matter was a subrogation action for which the statute of limitations began to run on the date that the “injury” occurred. Companion asserted that the subject injury was sustained by the insured (and by way of subrogation, Companion) on the date of the water loss, which was February 9, 2012. Therefore, the initial complaint filed by Companion on February 8, 2016, was timely filed. Built Tops argued, in response, that the statute of limitations instead began to run on the exact date of the negligent repairs as pled by Companion -- November 21, 2006 -- although the pleadings were devoid of any allegations that Companion or its insured had any knowledge of the defect in the subject roof at that time. The trial court granted Built Tops' motion to dismiss on the basis that the applicable statute of limitations had run for the filing of Companion's complaint.

Companion moved for rehearing/reconsideration. The trial court denied Companion's motion and dismissed Companion's complaint.

On appeal, Companion contends that the trial court erred in deciding that its negligence action was time-barred because the statute of limitations had run. Companion asserts that according to section 95.11(3)(c), Fla. Stat. (2012), the statute of limitations began to run on February 9, 2012, the date the water damage occurred, rather than on November 21, 2006, the date when Built Tops performed the negligent repairs.

We review the trial court's order granting the motion to dismiss de novo. Grove Isle Ass'n, Inc. v. Grove Isle Assoc., LLP, 137 So. 3d 1081, 1089 (Fla. 3d DCA 2014). We agree with Companion that the trial court improperly dismissed Companion's subrogation action stemming from a roof leak caused by negligent repairs performed by Built Tops on the insured premises.

According to section 95.11(3)(a), Fla. Stat. (2012), an action for negligence must be commenced within four years after the cause of action accrues. Furthermore, an action for negligence does not accrue until the plaintiff suffers an actual loss or damages. Med. Data Sys., Inc. v. Coastal Ins. Group, Inc., 139 So. 3d 394, 395 (Fla. 4th DCA 2014). With regard to roof leaks on real property, the statute of limitations begins to run from the time the defect is discovered or should have been discovered. Kelley v. School Board of Seminole County, 435 So. 2d 804 (Fla. 1983)(in the context of roof leaks on real property, the statute of limitations begins to run from the time the defect is discovered or should have been discovered)2; see also Travel Indemnity Company of Connecticut a/a/o Camilo Office Furniture v. CentiMark Corp. d/b/a CentiMark Roofing Systems, 746 F. Supp. 2d 1284 (S.D. Fla. 2010) (involving a subrogation action emanating from a roof leak in which the Southern District of Florida determined that the applicable statute of limitations began to run when the subrogee's insured first discovered the roof leak on the subject premises rather than at the exact time of the negligent roof repairs).

The critical date of loss here was February 9, 2012, the date on which the insured property was alleged to have been damaged. The initial complaint for negligence was filed on February 8, 2016, within four years of the date of the subject injury, thus on this record and at this stage of the litigation, the statute of limitations had not expired. Consequently, the trial court erred in determining that the statute of limitations had run and that Companion's claim was time-barred. Riverwalk at Sunrise Homeowners Ass'n, Inc. v. Biscayne Painting Corp., 199 So. 3d 348 (Fla. 4th DCA 2016).

Furthermore, Companion cites to section 95.11(3)(c) in its brief, which deals with an “action founded on the design, planning, or construction of an improvement to real property,. . .” However, Companion sued Built Tops for negligence due to a simple repair of the subrogor's roof. The correct portion of section 95.11 that is applicable here is (3)(a), not (3)(c), because Companion alleged an action founded on negligence. As we stated in Dominguez v. Hayward Industries, Inc., 201 So. 3d 100 (Fla. 3d DCA 2015):

The Florida Supreme Court in Hillsboro defined “improvement,” as contained in Black's Law Dictionary, 890 (4th ed. rev. 1969), as follows:

A valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement of waste, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.

Hillsboro, 263 So.2d at 213. See also Bernard Schoninger Shopping Ctrs., Ltd. v. J.P.S. Elastomerics, Corp., 102 F.3d 1173, 1177 (11th Cir. 1997)(relying on Hillsboro and Black's Law Dictionary's definition of “improvement” to conclude that the replacement of a shopping center's entire roof was an “improvement to real property.”). In Pinnacle Port Community Association, Inc. v. Orenstein, 952 F.2d 375 (11th Cir. 1992), for example, the issue was whether to apply the five-year statute of limitations for actions on breach of contract, or the four-year statute of limitations for actions “founded on the design, planning or construction of improvement. . . .”. The court held that the “repairs were intended not to enhance the assumed value of the property but to restore the walls to their original watertight state.” Id. at 378. These constituted repairs rather than improvements. Id.

Dominguez, 201 So. 3d at 102.

Accordingly, we reverse the trial court's order dismissing Companion's action and remand to the trial court so that the action can proceed on its merits.

Reversed and remanded for further proceedings.

__________________

1We base our decision in this case on the date of loss alleged in the operative complaint, as the trial court is limited to the four corners of the complaint in deciding whether to grant or deny the motion to dismiss. By our decision, we do not foreclose the application of any other evidence that may later develop relating to the date of loss.

2We recognize that Kelley involves section 95.11(3)(c). However, even in that case, the Florida Supreme Court found that the statute of limitations begins to run “when there has been notice of an invasion of legal rights or a person has been put on notice of his right to a cause of action.” Kelley, 435 So. 2d at 806.

* * *

Insurance -- Agents and brokers -- Negligent procurement of commercial property insurance policy -- Trial court erred in dismissing action for failure to state cause of action


42 Fla. L. Weekly D1071aTop of Form

Insurance -- Agents and brokers -- Negligent procurement of commercial property insurance policy -- Plaintiff's allegation that it requested defendant to procure policy with $100,000 coverage, but that defendant procured policy that provided less coverage than requested because of coinsurance provision in policy, stated cause of action for negligent procurement of insurance policy -- Trial court erred in dismissing action for failure to state cause of action

KENDALL SOUTH MEDICAL CENTER, INC., Appellant, vs. CONSOLIDATED INSURANCE NATION, INC., d/b/a INSURANCE NATION, Appellee. 3rd District. Case No. 3D16-926. L.T. Case No. 13-10766. Opinion filed May 10, 2017. An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin, Judge. Counsel: Raul A. Montaner, for appellant. Fowler White Burnett, P.A., and June Galkoski Hoffman and Rory Eric Jurman (Fort Lauderdale), for appellee.

(Before ROTHENBERG, LAGOA and SCALES, JJ.)

(SCALES, J.) Kendall South Medical Center, Inc. (“Kendall South”), the plaintiff below, appeals a final order dismissing its Fourth Amended Complaint with prejudice for failure to state a cause of action against one of the defendants below, Consolidated Insurance Nation, Inc. d/b/a Insurance Nation (“Insurance Nation”). We have jurisdiction. See Fla. R. App. P. 9.110(k). Concluding that Kendall South has sufficiently stated a cause of action for negligent procurement of an insurance policy, we reverse.

Underlying Facts1

Kendall South operates a medical center on leased premises located in North Miami Beach, Florida. On January 3, 2013, the sprinkler system on the leased premises was undergoing maintenance when a leak occurred, resulting in significant water damage to both the physical improvements (i.e., walls, flooring, baseboards) and to the contents (i.e., equipment and machinery) located therein. Kendall South had a commercial property insurance policy with Nation Insurance -- issued in August 2011, and later renewed -- which provided $100,000 of coverage for the physical improvements and contents of the subject property, and which contained a $1,000 deductible and a 90 percent coinsurance clause.2 As a result of the sprinkler leak, Kendall South suffered property damaging totaling approximately $260,000. Kendall South made an insurance claim, purportedly expecting to receive a $100,000 payout, but received only $16,562.67 due to the policy's coinsurance clause.

In March 2013, Kendall South filed a negligence claim against the management company for the leased premises, Equity One Realty & Management, FL., Inc., which allegedly undertook the work on the sprinkler system. As an affirmative defense, the management company asserted that Kendall South had failed to maintain sufficient insurance on the subject premises in compliance with the parties' lease agreement. In April 2013, Kendall South filed an Amended Complaint, adding a negligence claim against Countryside Power Sweeping, Inc., which allegedly performed the work on the sprinkler system. The matter was referred to mediation and later set for trial, which was rescheduled on numerous occasions.

Before the trial was held, on January 20, 2015, Kendall South was granted leave to file a Second Amended Complaint in order to add claims for negligent procurement of insurance and breach of fiduciary duty against Kendall South's insurer, Insurance Nation. The lower court then struck the pending trial date.3 On February 26, 2015, Insurance Nation moved to dismiss the two claims against it, claiming that Kendall South had failed to state causes of action. The trial court agreed, dismissing the Second Amended Complaint without prejudice.

On July 31, 2015, Kendall South filed its Third Amended Complaint, again alleging a claim for negligent procurement of insurance against Insurance Nation, but dropping the claim for breach of fiduciary duty. Insurance Nation moved to dismiss the Third Amended Complaint, alleging that Kendall South had again failed to state a cause of action. The trial court agreed, dismissing the Third Amended Complaint without prejudice.

On November 18, 2015, Kendall South filed its Fourth Amended Complaint, once again alleging a claim for negligent procurement of insurance against Insurance Nation. In this pleading, Kendall South alleged that it had met with Insurance Nation's agent, Humberto Torres, on or about August 10, 2011, in order to obtain a “a commercial property coverage policy of insurance in the amount of $100,000[.]00 that would cover the property, equipment, supplies, and improvements” of Kendall South.

At this meeting, after informing the agent that the subject premises had “office equipment, supplies and furnishings in excess of $100,000.00 and that [Kendall South] had spent in excess of $100,000.00 for the buildouts, betterments or improvements” thereon, Kendall South “requested from [agent] Torres insurance coverage of $100,000.00 to cover the property, supplies, furnishings, betterments or improvements of Kendall South Medical Center, Inc.” Thereupon, “Torres informed [Kendall South] that Defendant Insurance Nation would procure a commercial policy of insurance that would cover and protect all the property, equipment, furnishings and improvements of the Plaintiff Kendall South Medical Center, Inc., and as specifically requested by Plaintiff.”

After Kendall South paid the premium for a policy that provided property damage coverage of $100,000 with a $1,000 deductible and a 90 percent coinsurance clause, “Defendant Insurance Nation by and through its agent Torres again assured plaintiff that the policy procured by Defendant Insurance Nation would cover and fully pay the amount of $100,000[.]00 that was requested by Plaintiff.” Kendall South renewed the policy under the same terms in August 2012. As a result of the sprinkler leak in January 2013, Kendall South's premises purportedly suffered property damage in excess of $260,000. The subject policy, however, provided coverage in the amount of only $16,562.67 as a result of a penalty imposed by the coinsurance clause.

Kendall South specifically alleged that Insurance Nation “had the duty to procure the insurance coverage as requested,” as well as a “duty of reasonable care in . . . properly explaining the policy of insurance procured on [Kendall South's] behalf.” This duty was allegedly breached when the agent “failed to advise and or inform and or adequately and or properly explain to [Kendall South] the 90% coinsurance clause” where the agent “knew or should have known that the policy written by [Insurance Nation] with the 90% coinsurance clause would not cover and pay [Kendall South's] property as requested by [Kendall South] in the event” of a covered claim.

Insurance Nation moved to dismiss the Fourth Amended Complaint, once again alleging that Kendall South had failed to allege a claim for negligent procurement of insurance. Insurance Nation asserted, in pertinent part that: (i) it “explained this policy, including the coinsurance requirements, to Kendall South in the same way that Insurance Nation always explains similar policies to its customers as a matter of custom and practice”; (ii) “[b]y procuring and explaining the insurance requested by Kendall South, Insurance Nation met its duty”; and (iii) “Kendall South is attempting to manufacture a broker's liability claim against Insurance Nation despite 1) receiving the insurance it requested; and 2) never specifically asking for a higher level of insurance given the value of its office equipment.”

This time the trial court dismissed the Fourth Amended Complaint with prejudice. For the following reasons, we conclude the trial court erred in finding that the Fourth Amended Complaint failed to adequately allege a claim for negligent procurement of insurance.

Analysis

“A motion to dismiss tests whether a cause of action is stated and requires the court to look only to the four corners of the complaint without considering any affirmative defenses raised by the defendant, or evidence likely to be produced by either side.” Martin v. Principal Mut. Life Ins. Co., 557 So. 2d 128, 128-29 (Fla. 3d DCA 1990). To this end, the trial court must treat as true all of the complaint's well-pleaded allegations and consider them in the light most favorable to the plaintiff. Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732, 734-35 (Fla. 2002). The trial court's dismissal for failure to state a cause of action is an issue of law subject to de novo review. Id. at 734.

It is well settled that “where an insurance agent or broker undertakes to obtain insurance coverage for another person and fails to do so, he may be held liable for resulting damages for . . . negligence.” Klonis ex rel. Consol. Am. Ins. Co. v. Armstrong, 436 So. 2d 213, 216 (Fla. 1st DCA 1983); see also Romo v. Amedex Ins. Co., 930 So. 2d 643, 653-54 (Fla. 3d DCA 2006) (concluding the insured had stated a valid cause of action for negligent procurement of insurance); Caplan v. La Chance, 219 So. 2d 89, 90 (Fla. 3d DCA 1969) (concluding that an “action charging [insurance agents] with negligence in failing to procure the proper coverage requested by the insured . . . is a recognized cause of action”). More specifically, and as applicable here, “[a]n agent is required to use reasonable skill and diligence, and liability may result from a negligent failure to obtain coverage which is specifically requested or clearly warranted by the insured's expressed needs.” Warehouse Foods, Inc. v. Corporate Risk Mgmt. Servs., Inc., 530 So. 2d 422, 423 (Fla. 1st DCA 1988). As explained by our sister court, “[t]his general duty requires the agent to exercise due care in correctly advising the insured of the existence and availability of particular insurance, including the availability and desirability of obtaining higher limits, depending on the scope of the agents undertaking.” Adams v. Aetna Cas. & Sur. Co., 574 So. 2d 1142, 1155 (Fla. 1st DCA 1991).

Viewing the allegations of the Fourth Amended Complaint as true and in a light most favorable to Kendall South, we conclude the allegations sufficiently state a cause of action for negligent procurement of insurance. Kendall South asserts that, once it informed Insurance Nation's agent: (i) that both the physical contents of the subject premises and the improvements thereon were each valued in excess of $100,000, and (ii) that it wanted to procure just $100,000 of insurance with respect thereto, it was incumbent upon the agent to apprise Kendall South of the effect of the coinsurance clause, and to explain that different coverage was required to meet Kendall South's expectations.

In short, Kendall South alleges, albeit somewhat inartfully, that liability arises here from the agent's negligent failure to advise Kendall South at the August 10, 2011 meeting that the procured policy was inadequate to address Kendall South's expressed insurance needs. At this stage of the proceedings, on these allegations, we agree that Kendall South has stated a valid cause of action for negligent procurement of insurance.4

In reaching this decision, we do not at all imply that an agent or broker has a general duty of knowing and/or valuing the contents and improvements of the premises either before procuring, or thereafter renewing, a commercial insurance policy. Nor, given the current state of the pleadings, is this a case where it has been alleged by the plaintiff that an agent or broker has a general duty to explain a coinsurance clause to any insured before issuing such a policy. Rather, when an insured alleges that it specifically communicated its insurance needs to an agent who then undertook to procure a policy addressing such needs, the insured states a cause of action for negligent procurement where it also alleges that, without providing an explanation that different coverage was required, the agent procured a policy not meeting those expressed needs.

Accordingly, we reverse the final order dismissing with prejudice Kendall South's Fourth Amended Complaint against Insurance Nation and remand this cause for further proceedings.

Reversed and remanded.

__________________

1The facts presented herein are taken from the underlying Fourth Amended Complaint.

2Generally speaking, a coinsurance provision in a policy covering real or personal property imposes a penalty upon an insured who purchases coverage that is far less than the full value of the covered property, such that the insurer does not pay the full amount of a covered loss:

“Coinsurance” means a relative division of the risk between the insurer and the insured, dependent on the relative amount of the policy and the actual value of the property insured thereby.

The purpose of coinsurance is to increase the risk to the insured when the insured purchases far less coverage than the full value of the property; when a coinsurance provision applies, the insurer does not pay the full amount of loss, but the amount otherwise payable under the policy is reduced in proportion to the extent to which the property is underinsured. In fact, properly considered, a coinsurance clause involves a penalty or partial forfeiture.

31 Fla. Jur. 2d Insurance § 2457 (2017) (footnotes omitted).

3The claims against Equity One Realty & Management, FL., Inc. and Countryside Power Sweeping, Inc. remain pending in the lower court.

4As already noted, Insurance Nation argued in its motion to dismiss that its agent did “explain[ ] this policy, including the coinsurance requirements, to Kendall South in the same way that Insurance Nation always explains similar policies to its customers as a matter of custom and practice,” and that this conduct satisfied its duty of care. This, of course, is a matter for later consideration, whether it be raised on a motion for summary judgment or at trial. Similarly, Insurance Nation's argument that Kendall South made only general requests for “full” or “adequate” coverage at the August 2011 meeting presents a potential factual issue that cannot be resolved on a dismissal motion. See Commercial Ins. Consultants, Inc. v. Frenz Enters., 696 So. 2d 871, 872 (Fla. 5th DCA 1997) (concluding that whether there has been a failure to procure insurance is ordinarily a question of fact). We express no opinion as to the efficacy of these arguments at this time.

* * *

Appeals -- Torts -- Plaintiff abandoned her claim that trial court erred by denying her motion for new trial based on claim that jury erred in awarding zero damages for past pain and suffering upon filing of first notice of appeal in which the sole argument raised was that the trial court erred in its determination regarding causation


42 Fla. L. Weekly D1064aTop of Form

Appeals -- Torts -- Plaintiff abandoned her claim that trial court erred by denying her motion for new trial based on claim that jury erred in awarding zero damages for past pain and suffering upon filing of first notice of appeal in which the sole argument raised was that the trial court erred in its determination regarding causation -- Pursuant to rule in effect at time plaintiff filed motion for new trial, all motions filed by appealing party that were pending at time notice of appeal was filed were deemed abandoned -- Amendment to rule 9.020(i)(3) which provides that appeal shall be held in abeyance until pending motion for new trial is disposed of does not have retroactive effect to undo the abandonment of a motion when the notice of appeal was filed prior to effective date of amendment

HEIDI CHRISTAKIS, Appellant, v. TIVOLI TERRACE, LLC, Appellee. 4th District. Case No. 4D16-1890. May 10, 2017. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 12-17744 (12). Counsel: Justin R. Parafinczuk and Marcus J. Susen of Koch Parafinczuk & Wolf, P.A., Fort Lauderdale, for appellant. Eduardo Cosio and Julie Bork Glassman of Cosio Law Group, Coral Gables, for appellee.

(FORST, J.) This case comes to us for the second time on appeal. In its first appearance, we reversed the trial court's judgment notwithstanding the verdict, holding that there was conflicting evidence as to the cause of Appellant Heidi Christakis's injuries. Christakis v. Tivoli Terrace, LLC, 181 So. 3d 579, 579-80 (Fla. 4th DCA 2016). Importantly for present purposes, at no point during that prior appeal did Appellant make any suggestion to this Court that there was any error in the jury's award of damages; her sole argument was that the trial court erred in its determination regarding causation. In the instant appeal, Appellant argues that, in the proceedings following this Court's remand, the trial court erred by denying her motion for new trial which was based on the claim that the jury erred in awarding her no damages for past pain and suffering. We need not comment on the merits of this claim, however, because we hold that Appellant abandoned her motion for new trial upon filing her first notice of appeal.

Background

Prior to Appellant's first appeal, the jury had found that Appellee Tivoli Terrace, LLC, was 10% liable and Appellant was 90% liable for her negligence claim. The jury determined that Appellant had paid approximately $90,000 for past medical expenses, but suffered $0 worth of past pain damages. The trial court entered an order directing a verdict in favor of Appellee on the issue of negligence, finding that Appellee was not the cause of Appellant's injuries at all. Appellant moved for reconsideration of this order and for a new trial on pain damages. The trial court denied Appellant's motion for reconsideration of the directed verdict order, but never ruled on the motion for new trial on damages. Appellant filed an appeal in September 2014, generating the first case discussed above. Again, we emphasize that at no point during the first appeal was the issue of damages ever raised; the sole error presented to this Court was the issue of causation. Our opinion in the first appeal was released on January 6, 2016, reversing the trial court's entry of directed verdict and remanding “for entry of a judgment upon the jury verdict.” Christakis, 181 So. 3d at 580. Following the release of that opinion, Appellant filed in the trial court a renewed motion for new trial on pain damages. The trial court denied that motion without explanation and entered a new final judgment in accordance with the jury's original verdict. Appellant now appeals the denial of her renewed motion for new trial.

Analysis

On January 1, 2015, Florida Rule of Appellate Procedure 9.020(i)(3) was amended. Prior to that date, it read in relevant part “[i]f [a motion for new trial has] been filed and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, all motions filed by the appealing party that are pending at the time shall be deemed abandoned.” In re Amendments to Fla. Rules of Appellate Procedure, 183 So. 3d 245, 249 (Fla. 2014) (emphasis added). The January 2015 amendment changed this rule to read “[i]f [a motion for new trial has] been filed and a notice of appeal is filed before the filing or a signed, written order disposing of all such motions, the appeal shall be held in abeyance until the filing of a signed, written order disposing of the last such motion.” Id. (emphasis added).

Although there is a presumption that a change in law has only prospective application, this presumption does not exist for “remedial” legislation. Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 424 (Fla. 1994). But legal changes that “accomplish[ ] a remedial purpose by creating substantive new rights” maintain the presumption of prospective application only. Id. (citing City of Lakeland v. Catinella, 129 So. 2d 133, 136 (Fla. 1961)). Appellant's argument that the amendment here did not grant her a new right is without merit. In September 2014, Appellant had abandoned her right to have her motion for new trial heard, and instead had only the right to challenge the judgment on appeal. On January 1, 2015, per her argument, she did have the right to have her motion for new trial heard. This would have been a new right, and therefore the presumption is that the amendment does not have retroactive effect to apply to Appellant's case.1

We therefore hold that the January 1, 2015 amendment to Florida Rule of Appellate Procedure 9.020(i)(3) does not have retroactive effect to undo the abandonment of a motion when the notice of appeal was filed before January 1, 2015. Appellant's September 2014 notice of appeal abandoned her motion for new trial, and her failure to raise the issue of damages in her first appeal waives her argument on that point. Our decision is in accord with an earlier opinion of this Court and at least two other District Courts of Appeal opinions, each stating in a footnote that the case was not controlled by the amended rule, as the rule was amended during the pendency of the appeal. See Johnson v. State, 154 So. 3d 1184, 1186 n.1 (Fla. 4th DCA 2015); Wallen v. Tyson, 174 So. 3d 1058, 1060 n.1 (Fla. 5th DCA 2015); Dep't of Revenue v. Vanamburg, 174 So. 3d 640, 642 & n.1 (Fla. 1st DCA 2015).

Conclusion

The January 1, 2015 amendment to Rule 9.020(i)(3) does not have retroactive effect to revive a motion previously abandoned through the filing of a notice of appeal. We therefore affirm.

Affirmed. (DAMOORGIAN and GERBER, JJ., concur.)

__________________

1We note that this opinion does not address whether the amendment would have applied to Appellant's case had her notice of appeal been filed after January 1, 2015. Neither the fact that the case was pending at the time of the amendment nor the fact that the motion itself was filed before the time of the amendment is dispositive here; our holding is because Appellant's notice of appeal had been filed before the date of the amendment.

* * *

Workers' compensation insurance -- Rates -- Increase -- Public records -- Public meetings -- Trial court erred when it determined that rate increase approved by Insurance Commissioner was void because Office of Insurance Regulation and licensed insurance rating organization violated Sunshine Law under three separate statutory provisions and because rating organization violated state statutes when it denied individual's request to access organization's records


42 Fla. L. Weekly D1048bTop of Form

Workers' compensation insurance -- Rates -- Increase -- Public records -- Public meetings -- Trial court erred when it determined that rate increase approved by Insurance Commissioner was void because Office of Insurance Regulation and licensed insurance rating organization violated Sunshine Law under three separate statutory provisions and because rating organization violated state statutes when it denied individual's request to access organization's records -- Remand for reinstatement of OIR's final order approving 14.5% increase in workers' compensation insurance rates -- Sunshine Law violations -- Section 627.091(6), which extended Sunshine Law to instances when a rate-determination committee of a rating organization meets to determine workers' compensation insurance rates, did not apply to actuary employed by rating organization, acting in his individual capacity, to meetings between actuary and his own staff, to rating organization's internal meetings, or to meetings between rating organization and OIR that occurred after rating organization made a rate determination and filed its proposal with OIR -- Trial court erred in finding that section 286.011 applied to rating organization, a private organization that was not created by a public entity -- Record did not support argument that rating organization was subject to Sunshine Law because OIR delegated its authority over rate filings to the organization -- Trial court erred in concluding that organization was subject to Sunshine Law pursuant to section 627.093, which provides that section 286.011 is applicable to every rate filing, approval or disapproval of filing, rating deviation from filing, or appeal from any of these regarding workers' compensation insurance -- Access to records -- Rating organization was not required to provide individual with access to its records under either section 627.291 or section 119.07

NATIONAL COUNCIL ON COMPENSATION INSURANCE, FLORIDA OFFICE OF INSURANCE REGULATION, and DAVID ALTMAIER, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE FLORIDA OFFICE OF INSURANCE REGULATION, Appellants, v. JAMES F. FEE, JR., INDIVIDUALLY, Appellee. 1st District. Case Nos. 1D16-5408 & 1D16-5416. Opinion filed May 9, 2017. An appeal from the Circuit Court for Leon County. Karen A. Gievers, Judge. Counsel: Thomas J. Maida, James A. McKee, Benjamin J. Grossman, and Nicholas R. Paquette of Foley & Lardner LLP, Tallahassee, for Appellant National Council on Compensation Insurance, Inc.; Shaw P. Stiller, Chief Assistant General Counsel, and C. Timothy Gray and Lacy End-Of-Horn, Assistant General Counsels, for Appellants Florida Office of Insurance Regulation and David Altmaier. John K. Shubin, Salvatore H. Fasulo, Lauren G. Brunswick, and Mark E. Grafton of Shubin & Bass, P.A., Miami, for Appellee. Andrea Flynn Mogensen of Law Office of Andrea Flynn Mogensen, P.A., Sarasota, for Amicus Curiae The Florida Press Association, The First Amendment Foundation, and The Associated Press, Inc. Richard A. Sicking of Touby, Chait & Sicking, P.L., Coral Gables, for Amicus Curiae Florida Professional Firefighters, Inc.

(ROWE, J.) The National Council on Compensation Insurance (NCCI) and the Office of Insurance Regulation (OIR) appeal the trial court's order invalidating OIR's approval of a 14.5% increase in workers' compensation insurance rates. For the reasons that follow, we reverse the order in its entirety.

I. Facts

OIR regulates all insurance activities in Florida, including all activities relating to workers' compensation insurance. Insurance companies writing workers' compensation insurance policies in Florida must seek approval from OIR when setting or changing insurance rates by filing a rate proposal. OIR reviews filings seeking a rate change to determine if the proposed rate is “excessive, inadequate, or unfairly discriminatory . . . in accordance with generally accepted and reasonable actuarial techniques.” § 627.062(3)(b), Fla. Stat. (2015). In determining whether the rate proposal should be approved, OIR may examine the statistical data supporting the proposed rate, and it may hold a public hearing. §§ 627.091(2), .101, Fla. Stat. (2015). OIR takes official action on rate filings through its agency head, the Commissioner of Insurance Regulation, currently David Altmaier. See §§ 20.121(3)(a)1., (4), Fla. Stat. (2015).

Insurers have the option of directly filing rate change proposals with OIR or joining a licensed rating organization that will file the proposals on their behalf. § 627.091(4), Fla. Stat. (2015). A rating organization is defined as “every person, other than an authorized insurer, whether located within or outside this state, who has as his or her object or purpose the making of rates, rating plans, or rating systems.” § 627.041(3), Fla. Stat. (2015). NCCI is a licensed rating organization operating in more than forty states. And it represents and files rate proposals on behalf of most of the workers' compensation insurers in Florida.1 Before 1991, the responsibility for establishing rates fell to NCCI's Classification and Ratings Committee. NCCI had such a committee in each state in which it operated, including Florida. These rate-determination committees were composed of representatives of competing workers' compensation insurers who would meet periodically to fix the rates to be submitted for approval to insurance regulators. The committees were disbanded in 1991. Since then, no specific committee at NCCI has been assigned responsibility for overseeing, reviewing, or preparing rate filings. In Florida, the responsibility for rate determinations falls to a single employee of NCCI, one of its actuaries -- Jay Rosen.

Before filing a rate proposal with OIR, Rosen analyzes certain data to determine whether there is a need for a change in insurance rates. After he decides that a rate change is needed, a Technical Peer Review meeting is convened where other NCCI actuaries challenge Rosen's conclusions in order to assist him in defending his recommended rate proposal. The next step in the process is a Phase II meeting where Rosen provides an overview to other actuaries and members of NCCI's regulatory division explaining how he arrived at his rate proposal. After these meetings, Rosen prepares the documents that are filed with OIR.

II. Procedural History

NCCI announced in a May 2016 press release that, as a consequence of the supreme court's decision in Castellanos v. Next Door Company, 192 So. 3d 431 (Fla. 2016), which declared unconstitutional the statutory cap on claimants' attorneys' fees in workers' compensation cases, a significant increase in workers' compensation insurance rates would be necessary. Following this announcement, James F. Fee, Jr., an attorney and the sole owner of a law firm that purchases workers' compensation insurance in Florida, requested from NCCI “all pertinent information relating to all NCCI rate and rule filings affecting Florida Workers' Compensation premiums that were in effect for the calendar years 2006 through 2016.” Fee made this request shortly before NCCI submitted a proposal to OIR for a 17.1% increase in the overall statewide workers' compensation insurance rate; he made a second records request after the proposal was submitted. NCCI responded by providing Fee with the records it submitted to OIR with its rate filing.

Before OIR could act on NCCI's rate filing, the supreme court decided Westphal v. City of St. Petersburg, 194 So. 3d 311 (Fla. 2016), holding that the 104-week statutory limit on temporary total disability benefits was unconstitutional, and reinstating a 206-week limitation on these benefits. NCCI responded to the Westphal decision by amending its filing to propose a rate increase of 19.6% to go into effect on October 1, 2016. After NCCI amended its filing, OIR provided notice that it would conduct a public hearing on the proposed rate increase. Fee then made another request to NCCI, seeking any information related to the amended rate filing and any additional information related to his prior requests. Two weeks later, NCCI provided Fee with documents it submitted to OIR associated with its 2016 amended rate filing. Days later, OIR published on the internet all of NCCI's rate filings from 2006 through 2016.

Fee then filed suit against NCCI, OIR, and Commissioner Altmaier and sought to enjoin the public hearing on NCCI's amended rate filing. Fee alleged that (1) NCCI violated the Sunshine Law, section 286.011, Florida Statutes (2015), by failing to provide notice of or a meaningful opportunity to participate in committee meetings where its rate proposals were discussed; (2) the amended rate filing was void ab initio due to violations of the Sunshine Law; (3) NCCI violated section 627.291(1), Florida Statutes, by denying Fee access to records regarding the rate proposal; and (4) NCCI violated the Public Records Act by failing to respond to Fee's records requests.

Despite the pending complaint, the public hearing proceeded as scheduled on August 16, 2016. At the four-hour hearing, every person who filled out a speaker card spoke, including an actuary Fee hired to present testimony in opposition to the proposed rate increase. OIR also allowed for additional commentary by holding open the time for written public comments for an extra seven days. But after reviewing NCCI's rate proposal and considering public comments on the proposal, OIR rejected the proposed 19.6% increase as unjustified. OIR determined that only a 14.5% rate increase was appropriate. NCCI then submitted a revised rate proposal requesting a 14.5% rate increase. On October 5, 2016, Commissioner Altmaier issued a final order approving the revised rate proposal.

The trial court held an evidentiary hearing on Fee's complaint after the Commissioner approved the final order, but before the rate went into effect. After hearing testimony and receiving documentary evidence, the court determined that the order approving the rate increase was void because NCCI and OIR violated the Sunshine Law under three separate statutory provisions: section 627.091(6), Florida Statutes; section 286.011, Florida Statutes; and section 627.093, Florida Statutes. The trial court also concluded that NCCI violated sections 627.291(1) and 119.07, Florida Statutes, when it denied Fee access to its records. NCCI and OIR appeal.

III. Analysis

We review the trial court's factual findings to determine whether they are supported by competent, substantial evidence. McDougall v. Culver, 3 So. 3d 391, 392 (Fla. 2d DCA 2009). But we review the trial court's interpretation of the law de novo. Liner v. Workers Temp. Staffing, Inc., 900 So. 2d 473, 476 (Fla. 2008) (“We review the statutory interpretation conducted by the trial court to reach this ultimate ruling de novo, while we defer to those factual findings of the trial court that are supported by competent, substantial evidence from the record.”).

A. Alleged Sunshine Law Violations

The trial court found that NCCI and OIR violated Florida's Sunshine Law in three respects. First, the trial court determined that NCCI violated section 627.091(6), Florida Statutes, by conducting meetings of the statutory rate-determination committee outside the sunshine. Second, the trial court found that OIR delegated its authority over rate filings to NCCI, subjecting NCCI's rate proposal activities to the sunshine requirements of section 286.011, Florida Statutes. And third, the trial court concluded that section 627.093, Florida Statutes, requires NCCI to conduct its activities in the sunshine.

i. Section 627.091(6), Florida Statutes

Florida's Sunshine Law finds its origins in section 286.011, Florida Statutes (2015), which provides:

All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, including meetings with or attended by any person elected to such board or commission, but who has not yet taken office, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.

The Sunshine Law was made part of the Florida Constitution in 1992, in article I, section 24, which requires “[a]ll meetings of any collegial public body” to be open and noticed to the public. By its express terms, the Sunshine Law applies exclusively to governmental bodies and not to private entities. See Op. Att'y Gen. Fla. 16-01 (2016).

Despite this limitation, the Florida Legislature extended the scope of the law to include licensed insurance rating organizations, such as NCCI, under certain specified circumstances:

Whenever the committee of a recognized rating organization with responsibility for workers' compensation and employer's liability insurance rates in this state meets to discuss the necessity for, or a request for, Florida rate increases or decreases, the determination of Florida rates, the rates to be requested, and any other matters pertaining specifically and directly to such Florida rates, such meetings shall be held in this state and shall be subject to s. 286.011. The committee of such a rating organization shall provide at least 3 weeks' prior notice of such meetings to the office and shall provide at least 14 days' prior notice of such meetings to the public by publication in the Florida Administrative Register.

§ 627.091(6), Fla. Stat. (2015) (emphasis added). This unique extension of the Sunshine Law applies only when the rate-determination committee of a rating organization meets to determine workers' compensation insurance rates. NCCI argues, and it is undisputed, that no committee at NCCI has been charged with the responsibility for determining worker's compensation insurance rates in over twenty-five years.2

Although NCCI does not entrust a specific committee with responsibility for determining workers' compensation insurance rates in Florida, Fee contends, and the trial court found, that the following configurations of NCCI's and OIR's employees met and acted in place of the rate-determination committee contemplated under the statute and that meetings of those groups were subject to the sunshine: (1) Jay Rosen, in his individual capacity; (2) the Team Peer Review and Phase II meeting participants; (3) Rosen and his staff; and (4) NCCI's and OIR's staff. We conclude that none of these individuals or groups meets the definition of the rate-determination committee under the statute, and thus, none of these meetings was subject to the sunshine.

Fee asserts that Rosen, in his individual capacity, acted in place of the rate-determination committee contemplated by section 627.091(6). This argument ignores the plain language of the statute and the ordinary meaning of the terms within it. See McKenzie Check Advance of Fla., LLC v. Betts, 928 So. 2d 1204, 1208 (Fla. 2006) (explaining that statutory construction starts with an examination of the plain language of the statute); State v. Bodden, 877 So. 2d 680, 685 (Fla. 2004) (observing that it is assumed that the legislature knows the ordinary meaning of words when it enacts a statute). The statute applies only to meetings of a rating organization committee where workers' compensations insurance rates are discussed and determined. A “committee” has been defined as a “subordinate group,” not a single person. See Committee, Black's Law Dictionary (10th ed. 2014). Moreover, the use of the term “meets” indicates that the statute is designed to apply to a group of people, not a single individual. The multi-person concept of the term “committee” further finds support in well-established precedent construing the Sunshine Law. See Sarasota Citizens for Responsible Gov't v. City of Sarasota, 48 So. 3d 755, 764 (Fla. 2010) (explaining that Sunshine Law protections extend to formal and informal meetings only when two or more members of the same board or commission meet to deal with a matter on which action will be taken in the future); Office of the Attorney General, Government-In-The-Sunshine Manual, at 18 (2016 ed.) (observing that the Sunshine Law does not “ordinarily apply to an individual member of a public board or commission or to public officials who are not board or commission members.” (emphasis added)). Thus, under the plain and ordinary meaning of the terms “committee” and “meet,” Rosen, in his individual capacity, does not act or “meet” as the statutory rate-determination committee contemplated by section 627.091(6).

The trial court also concluded that NCCI's Team Peer Review and Phase II meetings, the meetings between Rosen and his own staff, and the meetings between NCCI and OIR3 were the functional equivalent of the rate-determination committee meetings described in section 627.091(6) and that the actions of these groups were subject to the Sunshine Law. The trial court's conclusions are incorrect. With regard to NCCI's internal meetings, the Sunshine Law does not apply because none of the participants, other than Rosen, had any authority to determine the worker's compensation insurance rate to be proposed to OIR. See Sarasota Citizens, 48 So. 3d at 762 (holding that the dispositive question for whether the Sunshine Law applies to a committee subordinate to or selected by a traditional governmental authority is whether decision-making authority has been delegated to the committee); Cape Publ'ns, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985) (holding that a committee that was formed to supply a city manager with information so that he could properly exercise his duty to select a new police chief was not subject to the Sunshine Law because the committee had no decision-making authority). Instead, these meetings were held solely for the purpose of gathering information. See Molina v. City of Miami, 837 So. 2d 462, 463 (Fla. 3d DCA 2002) (“In short, the committee is nothing more than a meeting of staff members who serve in a fact-finding, advisory capacity to the chief. The Government-in-the-Sunshine Law is not applicable to meetings of staffers serving this function.”); Lyon v. Lake Cty., 765 So. 2d 785, 789 (Fla. 5th DCA 2000) (“When a committee has been established for and conducts only information gathering and reporting, the activities of that committee are not subject to section 286.011, Florida Statutes.”). And with regard to the meetings between NCCI and OIR, those meetings occurred after NCCI made a rate determination and filed its rate proposal with OIR. In no way could those meetings be considered a meeting of a rate-determination committee of a rating organization to determine the rates to be filed. Accordingly, neither NCCI's internal meetings nor the meetings between OIR and NCCI was subject to the sunshine pursuant to section 627.091(6).

ii. Section 286.011, Florida Statutes

Fee also argued, and the trial court found, that NCCI violated the Sunshine Law itself. Section 286.011, Florida Statutes (2015), requires “[a]ll meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision” to be held in the sunshine. The Sunshine Law thus applies to governmental bodies and does not apply to private organizations that were not created by a public entity. See Op. Att'y Gen. Fla. 07-27 (2007). However, the sunshine requirements may apply if a public entity has delegated “the performance of its public purpose” to a private entity. Mem'l Hosp.-W. Volusia, Inc. v. News-Journal Corp., 729 So. 2d 373, 382-83 (Fla. 1999).

Fee contends that NCCI was subject to the sunshine because OIR delegated its authority over rate filings to NCCI. However, no evidence in the record supports Fee's argument. OIR approves and disapproves rate filings; it does not make rate filings. Conversely, NCCI and individual insurers have no authority to approve or disapprove rate filings; rather, they are under a statutory mandate to file such proposals. §§ 627.091(1), (4), Fla. Stat. (2015). OIR did not delegate to NCCI any authority to carry out an agency function required to be performed in the sunshine. Thus, Fee's argument under section 286.011 fails.

iii. Section 627.093, Florida Statutes

The trial court also concluded, without any argument by the parties, that NCCI was subject to the sunshine pursuant to section 627.093, Florida Statutes. This statute provides as follows: “Section 286.011 shall be applicable to every rate filing, approval or disapproval of filing, rating deviation from filing, or appeal from any of these regarding workers' compensation and employer's liability insurances.” § 627.093, Fla. Stat. (2015). The plain language of the statute thus extends sunshine requirements only to rate filings; actions taken by OIR subsequent to receiving a rate filing (approval, disapproval or deviation); and appeals of OIR's actions. The only portion of the statute that has any nexus to NCCI's activities in this case is the rate filing itself. And a rate filing is specifically defined by statute to include the following information: (1) “[t]he experience or judgment of the insurer or rating organization”; (2) an “interpretation of any statistical data”;4 (3) “[t]he experience of other insurers or rating organizations;” or (4) “[a]ny other factors which the insurer or rating organization deems relevant.” § 627.091(2), Fla. Stat. (2015). Reading section 627.093 in conjunction with the statutory definition of a rate filing, it is clear that the sunshine requirements of section 627.093 do not apply to NCCI beyond the rate filing itself. It does not extend to NCCI's rate determination activities or to its decision-making process leading to the filing of a rate proposal. The trial court's conclusion to the contrary is incorrect.

B. Access to Records

Fee also alleges that NCCI failed to fully and completely respond to his records requests, in violation of two statutes: section 627.291, Florida Statutes; and section 119.07, Florida Statutes. We conclude that NCCI was not required to provide Fee with access to its records under either provision.

i. Section 627.291, Florida Statutes

Fee contends that he is entitled to access NCCI's records pursuant to section 627.291, Florida Statutes (2015), as an insured affected by a rate or aggrieved by a rating system. The statute provides as follows:

(1) As to workers' compensation and employer's liability insurances, every rating organization and every insurer which makes its own rates shall, within a reasonable time after receiving written request therefor and upon payment of such reasonable charge as it may make, furnish to any insured affected by a rate made by it, or to the authorized representative of such insured, all pertinent information as to such rate.

(2) As to workers' compensation and employer's liability insurances, 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 or her authorized representative, on his or her written request to review the manner in which such rating system has been applied in connection with the insurance afforded him or her. If the rating organization or insurer fails to grant or rejects such request within 30 days after it is made, the applicant may proceed in the same manner as if his or her application had been rejected. Any party affected by the action of such rating organization or insurer on such request may, within 30 days after written notice of such action, appeal to the office, which may affirm or reverse such action.

§ 627.291, Fla. Stat. (2015) (emphasis added).

Fee asserts that as an insured who would be affected by NCCI's proposed rate increase, he was entitled to access all pertinent records relating to NCCI's rate filing. But the plain language of the statute requires rating organizations to turn over “all pertinent information” to an insured who has been “affected” by a rate. Even assuming that Fee had standing as an insured, he could not have been “affected” by a rate that had yet to go into effect and would never go into effect as OIR ultimately rejected NCCI's request for a 19.6% rate increase. The legislature drafted the statute in the past tense, and it is presumed that the legislature understood this language would limit any rating organization's obligation to turn over rate information to rates that were already in effect. See State v. McNeil, 162 So. 3d 274, 279 (Fla. 5th DCA 2015) (holding that the legislature is presumed to understand the rules of grammar when enacting a statute).

Moreover, all portions of a statute must be read together to achieve a consistent whole. Borden v. East-European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006). The language contained in section 627.291(2), also written in the past tense, supports a construction of the statute that would require disclosure of information for only rates that are already in effect. Subsection (2) requires rating organizations to provide reasonable means for any person “aggrieved by the application of its rating system” to review the manner in which “such rating system has been applied” to his or her insurance. § 627.291(2), Fla. Stat. (2015). Further, when both subsections are read together, it is apparent that this statute was designed to allow an insured to obtain information about a rate that is in effect or was in effect and to determine whether he has grounds to challenge the application of the rate to him. Because nothing in section 627.291 makes it applicable to pending or rejected rate filings, NCCI was not required to provide records in response to Fee's requests.

ii. Section 119.07, Florida Statutes

Fee also argues, and the trial court found, that NCCI violated the Public Records Act, which provides that “[i]t is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.” § 119.01, Fla. Stat. (2015). The Act defines an “agency” to include any private business entity “acting on behalf of any public agency.” § 119.011(2), Fla. Stat. (2015). “This broad definition [of agency] serves to ensure that a public agency cannot avoid disclosure under the Act by contractually delegating to a private entity that which otherwise would be an agency responsibility.” News & Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Grp., Inc., 596 So. 2d 1029, 1031 (Fla. 1992). Thus, in order to find that NCCI was subject to section 119.07, the trial court was required to determine whether NCCI acted on behalf of a governmental agency. In making this determination, it was necessary for the court to examine multiple factors, including the nine factors outlined in Schwab. 596 So. 2d at 1031. But, here, the trial court expressly declined to apply the Schwab factors and concluded that NCCI was subject to section 119.07.5 This was error. Economic Dev. Comm'n v. Ellis, 178 So. 3d 118, 121 (Fla. 5th DCA 2015).

IV. Conclusion

The trial court erred in declaring OIR's final order void and in concluding that NCCI and OIR violated the Sunshine Law. The trial court also erred in determining NCCI violated section 627.291, Florida Statutes, and the Florida Public Records Act, by not providing Fee with access to certain records. Accordingly, we REVERSE the trial court's final order, and REMAND for reinstatement of OIR's final order issued on October 5, 2016, approving a 14.5% increase in the workers' compensation insurance rates. (KELSEY and JAY, JJ., CONCUR.)

__________________

1Pursuant to a separate contract with OIR, NCCI also serves as the statistical agent for Florida. In this role, NCCI compiles data regarding the loss, expense, and claims experience of workers' compensation insurance carriers. See § 627.331(3), Fla. Stat. (2015).

2The trial court concluded that NCCI's disbanding of its Classification and Rate Committee in 1991 and its delegation of the responsibility for rate proposals to one person was an attempt to evade the sunshine. But the application of the Sunshine Law does not depend on a party's “intentions, sincerity of purpose or noble motives.” IDS Props., Inc. v. Town of Palm Beach, 279 So. 2d 353, 357 (Fla. 4th DCA 1973). Further, it is unclear on this record how the trial court reached the conclusion that NCCI restructured its rate-proposal process in over forty states to avoid compliance with Florida's Sunshine Law.

3Fee did not allege that the meetings between NCCI and OIR were subject to the sunshine under this provision, and the issue was not listed in the pre-hearing stipulation; thus, the trial court erred by addressing this issue. See LPI/Key W. Assocs., Ltd. v. Beachcomber Jewelers, Inc., 77 So. 3d 852, 854 (Fla. 3d DCA 2012) (“A pretrial stipulation limiting the issues to be tried is ‘binding upon the parties and the trial court, and should be strictly enforced.' ”) (quoting Broche v. Cohn, 987 So. 2d 124, 127 (Fla. 4th DCA 2008))).

4We note that if OIR requests an examination of the underlying statistical data for a certain rate filing, this information would not be subject to public disclosure due to the exemptions described in section 624.319, Florida Statutes (2015).

5In the brief filed with this Court, neither Fee nor Amicus Florida Press Association attempt to defend the trial court's ruling that NCCI was subject to the Public Records Act. However, when asked at oral argument to concede error on this point, Fee's counsel instead attempted to defend the trial court's ruling by arguing that the trial court did not need to rely on the Schwab factors because of the other relevant statutory provisions dealing with an insured's access to records from a workers' compensation insurance company.

* * *