Criterion Ins. Co. v. ST. DEPT. OF INSCriterion Ins. Co. v. ST. DEPT. OF INS
Daniel Y. Sumner and Ruth L. Gokel, Tallahassee, for appellees.
ERVIN, Chief Judge.
Criterion Insurance Company appeals from the trial court‘s final judgment upholding the facial constitutionality of
On October 13, 1982, Criterion submitted to the Department of Insurance (Department), pursuant to
On March 31, 1983, Criterion submitted another rate filing to the Department, advising of another rate increase for coverage for other than personal injury protection and uninsured motorist coverages, including coverages for bodily injury, property damage, medical payments, comprehensive, collision, towing and labor. The Department took the position that this rate filing was within the prohibited time period under
After the department notifies an insurer that a rate may be excessive, inadequate, or unfairly discriminatory, unless the department withdraws the notification, the insurer shall not increase the rate until the earlier of 120 days after the date the notification was provided or 180 days after the date of implementation of the rate. The department may, subject to chapter 120, disapprove without the 60-day notification any rate increase filed by an insurer within the prohibited time period or during the time that the legality of the increased rate is being contested.
A principal issue between the Department and Criterion is whether the statutory prohibition for increasing “the rate” within the time period specified in the statute applies to rate increases for all coverages in situations where the original rate increases purported to be for only certain specified coverages. The Department is of the view that the effect of the statute is to prohibit any such increases, and that this interpretation is the only reasonable and workable one. Criterion, however, disagrees. In any event, the Department, on April 8, 1983, issued an “Immediate Final Order of Disapproval“, finding that the March rate filing constituted an immediate danger to the public health, safety or welfare in that Criterion “is charging and collecting from insurance buying consumers of the State of Florida rates which have been illegally filed, and in utter derogation of the provisions of
(3) If an agency head finds that an immediate danger to the public health, safety, or welfare requires an immediate final order, it shall recite with particularity the facts underlying such finding in the final order, which shall be appealable or enjoinable from the date rendered.
Thereafter, Criterion filed a complaint in the circuit court seeking injunctive and declaratory relief and attacking the facial constitutionality of
Criterion‘s circuit court complaint, as amended, sought declaratory and injunctive relief and alleged nine counts: Count I — the April 8, 1983 order violates Criterion‘s due process and equal protection rights since its rates are not unreasonable, arbitrary or excessive; Count II — the April 8 order unconditionally impairs the obligations of contract between Criterion and its policyholders; Count III — the Department misconstrues and misapplies
Following the hearing, the court granted Criterion‘s motion for leave to file its amended complaint, held that it had “no jurisdiction to consider any issue raised or raisable by the amended complaint other than the facial constitutionality vel non of
This Court determines that facially Section 627.0651(10), Florida Statutes (1982 Supp.), does not appear to be in violation of any constitutional principle.
Thereupon it denied the two motions to stay and dismissed the amended complaint with prejudice.
Criterion first contends that the court prematurely ruled on the facial constitutional claims; that it had no notice that the court would consider the constitutionality of the statute at the hearing on the motion to dismiss the complaint. We disagree. The motion to dismiss the complaint was explicitly based on appellant‘s failure to exhaust its administrative remedies on the ground that it had an adequate administrative remedy under
The case before us is therefore in an altogether different posture from the circumstances presented in those cases relied upon by Criterion, Mills v. Ball, 344 So.2d 635, 638 (Fla. 1st DCA 1977), and Government Employees Insurance Company v. Anta, 379 So.2d 1038 (Fla. 3d DCA 1980), wherein factual issues — rather than issues of law — were required to be resolved following a final hearing on the merits. As this court observed in Mills v. Ball, 344 So.2d at 638: “A ruling on the merits should not be made until after the final hearing where the parties have full opportunity to present evidence in support of their respective positions.” (e.s.) In the case at bar, once the trial court determined the legal issue that the statute under attack was constitutional, it correctly abstained from entertaining any of the nonconstitutional questions by holding such questions were not properly before it.
We disagree also with Criterion‘s argument that
Nothing in this chapter shall be construed to repeal any provision of the Florida Statutes which grants the right to a proceeding in the circuit court in lieu of an administrative hearing or to divest the circuit courts of jurisdiction to render declaratory judgments under the provisions of chapter 86.
Notwithstanding the Act‘s implicit recognition of the circuit courts’ continuing equitable jurisdiction, as well as the constitution‘s explicit provision conferring the power upon circuit courts to issue injunctions, Willis required adherence to the exhaustion doctrine. Later this court was asked whether exhaustion of administrative remedies was required in view of the statute‘s provision authorizing the continuing jurisdiction of the circuit courts to render declaratory judgments under chapter 86, and the court again ordered compliance. School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977).
Additionally, the administrative order entered on April 8, 1983, although immediate, is not final in the sense of concluding all administrative labors. Such an order has finality only from the standpoint that it is immediately reviewable for the purpose of determining whether it recites with particularity “specific findings of fact to support the summary agency action.” Commercial Consultants Corporation v. Department of Business Regulation, 363 So.2d 1162, 1164 (Fla. 1st DCA 1978). See also Saviak v. Gunter, 375 So.2d 1080 (Fla. 1st DCA 1979); Lerro v. Department of Professional Regulation, 388 So.2d 47 (Fla. 2d DCA 1980); Gervais v. Division of Alcoholic Beverages and Tobacco, 438 So.2d 90 (Fla. 2d DCA 1983).
The emergency order is more properly labeled one involving “preliminary, ..., or intermediate agency action or ruling [which] is immediately reviewable [in that] review of the final agency decision would not provide an adequate remedy.”
The Third District Court of Appeal, in a series of decisions, Aurora Enterprises, Inc. v. State, Department of Business Regulation, 395 So.2d 604 (Fla. 3d DCA 1981); Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. N.K., Inc., 399 So.2d 416 (Fla. 3d DCA 1981); Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Provende, Inc., 399 So.2d 1038 (Fla. 3d DCA 1981), and Department of Professional Regulation v. Fernandez-Lopez, M.D., 407 So.2d 286 (Fla. 3d DCA 1981), has approved the right of a regulatory agency to suspend a license without a pre-suspension hearing to the party affected, conditioned, however, upon its providing a prompt, post-suspension hearing. An emergency suspension order, cognizable under both
(1) [T]he complaint must demonstrate some compelling reason why the APA ... does not avail the complainants in their grievance against the agency; or (2) the complaint must allege a lack of general authority in the agency and, if it is shown, that the APA has no remedy for it; or (3) illegal conduct by the agency must be shown and, if that is the case, that the APA cannot remedy that illegality; or (4) agency ignorance of the law, the facts, or public good must be shown and, if any of that is the case, that the Act provides no remedy; or (5) a claim must be made that the agency ignores or refuses to recognize related or substantial interests and refuses to afford a hearing or otherwise refuses to recognize that the complainants’ grievance is cognizable administratively... . Since such avenues of relief were not pursued, we cannot conclude that the
remedies of the administrative process were inadequate.
(e.s.). Criterion has failed to allege in its complaint the specificity required by Communities Financial Corporation regarding the absence of an administrative remedy as a predicate to conferring jurisdiction upon a circuit court.2
We are not unaware that there is language in State of Florida, Department of Banking and Finance v. Standard Federal Savings and Loan Association and K-Mart Corporation, 452 So.2d 105, (Fla. 1st DCA 1984), suggesting that a circuit court has jurisdiction to entertain an application for injunctive relief under the provisions of
The facts in the case at bar dramatically evince the need for scrupulous adherence to available administrative remedies. Criterion, notwithstanding that it was advised by the Department in the emergency order of its right to request a 120.57 hearing,3 filed its suit for injunctive and declaratory relief in circuit court. The only issue cognizable in that court was, as stated, a facial attack on the regulatory statute. Clearly Criterion had an effective, alternative remedy. It had the right of immediate review to an appellate court from the Department‘s order for the purpose of determining whether the order set out with particularity the facts underlying it, as required by
This court‘s order, staying the enforcement of the Department‘s order of April 8, 1983, is vacated.
AFFIRMED.
THOMPSON and NIMMONS, JJ., concur.