Bankers Ins. Co. v. Florida Residential Property & Cas. Joint Underwriting Ass'n
| Decision Date | 25 February 1997 |
| Docket Number | No. 96-1120,96-1120 |
| Citation | 689 So.2d 1127 |
| Parties | 22 Fla. L. Weekly D572 BANKERS INSURANCE COMPANY, Appellant, v. FLORIDA RESIDENTIAL PROPERTY & CASUALTY JOINT UNDERWRITING ASSOCIATION, AIB Insurance Group, Inc., Audubon Insurance Company, and American International Insurance Company, Appellees. |
| Court | Florida District Court of Appeals |
Douglas A. Mang, Wendy Russell Wiener, and Connie Jo Pecori of Mang & Rett, P.A., Tallahassee, for Appellant.
Stuart B. Yanofsky and Michael E. Colodny of Colodny, Fass & Talenfeld, P.A., Fort Lauderdale, and Fred E. Karlinsky, Associate General Counsel, Tallahassee, for Appellee Florida Residential Property & Casualty Joint Underwriting Association.
John Radey of Radey McArthur & Frehn, Tallahassee, and Perry Ian Cone, Vice President, Legal Affairs and Senior Counsel, Miami, for Appellee AIB Insurance Group, Inc. Mitchell B. Haigler of Katz, Kutter, Haigler, Alderman, Marks, Bryant & Yon, P.A., Tallahassee, for Appellee Audubon Insurance Company, Inc.
William B. Willingham of Rutledge, Encenia, Underwood, Purnell & Hoffman, P.A., Tallahassee, for Appellee American International Insurance Company.
William C. Owen and Zollie Maynard of Panza, Maurer, Maynard & Neel, P.A., Tallahassee, for amicus curiae Policy Management Systems Corporation.
Bankers Insurance Company (Bankers) asks this court to reverse an order of the circuit court denying Bankers' request for a temporary injunction. The circuit court denied the request for temporary injunction on grounds that Bankers failed to demonstrate a substantial likelihood of success on the merits, see City of Jacksonville v. Naegele Outdoor Adver., 634 So.2d 750 (Fla. 1st DCA 1994), approved, 659 So.2d 1046 (Fla.1995), and because it had failed to exhaust available administrative remedies. We agree that Bankers failed to exhaust available administrative remedies and affirm on that basis.
Bankers acted as a servicing carrier for the Florida Residential Property and Casualty Joint Underwriting Association (FRPCJUA) until its contract expired on March 31, 1996. Prior to expiration of the contract, FRPCJUA requested competitive proposals from insurers and other potential servicing carriers for the FRPCJUA. On December 14, 1995, the board of governors for the FRPCJUA evaluated the proposals submitted in response to its request for proposals and selected AIB Insurance Group, Inc. (AIB), Audubon Insurance Company, and American International Insurance Company. Bankers was not selected.
The request for proposals provides that the board of governors of the FRPCJUA will make the final selection of the company or companies that will act as servicing carriers. Section 627.351(6)(a), Florida Statutes (1995), provides that the FRPCJUA "shall operate pursuant to a plan of operation approved by order of the department." Section 24 of the FRPCJUA's second amended plan of operation provides a means for resolving disputes with respect to any decision of the board.
Except as to any dispute, cause of action, claim or controversy arising under, or out of, any contract or Agreement pertaining to bonding or borrowing by the Association, any person or entity aggrieved with respect to any action or decision of the Board of the Association, or any Committee thereof, (other than matters regarding Assessments which appeals are governed by Sections 15, 16 and 17 hereof) may make written request of the Board for specific relief. All written requests for relief or redress shall be deemed Appeals and shall be delivered to the Executive Director. The Executive Director shall schedule any Appeal for hearing at the next regularly scheduled Board meeting occurring, not less than ten (10) days nor more than forty (40) days from the Executive Director's receipt of the Appeal. Any person or entity whose Appeal for relief is denied by the Board may appeal to the Insurance Commissioner in the manner provided by § 627.371, Florida Statutes. A transcript of any Appeal items shall be made at the time of hearing.
On February 29, 1996, Bankers filed an appeal of the board's actions pursuant to section 24 of the second amended plan of operation. On April 7, Bankers presented its appeal to the board and after hearing and discussion, the board denied the appeal. On April 24, 1996, Bankers appealed the board's decision to the Department of Insurance.
On March 4, 1996, while pursuing its administrative remedies, Bankers filed a complaint for declaratory and injunctive relief in circuit court arguing, inter alia, that the FRPCJUA violated section 627.351(6)(c)1., Florida Statutes, in its selection of AIB, a non-insurer, as a servicing provider. On March 8, 1996, a hearing was held in circuit court. On March 20, 1996, the circuit court entered the order denying Bankers' motion for injunctive relief, which is the subject of this appeal.
On September 16, 1996, the Department of Insurance entered an order denying Bankers' April 24, 1996, appeal. The order contains a notice of rights form advising Bankers of its right pursuant to section 120.57, Florida Statutes, to contest the Department's decision before the Division of Administrative Hearings. At oral argument, counsel advised that the matter was pending at the Division of Administrative Hearings.
It is settled that "where adequate administrative remedies are available, it is improper to seek relief in the circuit court before those remedies are exhausted." Communities Fin. Corp. v. Florida Dep't of Envtl. Regulation, 416 So.2d 813, 816 (Fla. 1st DCA 1982); Department of Envtl. Protection v. PZ Constr. Co., Inc., 633 So.2d 76, 78 (Fla. 3d DCA 1994); Friends of the Everglades v. State, Dep't of Envtl. Regulation, 387 So.2d 511 (Fla. 1st DCA 1980); School Bd. of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977); School Bd. of Flagler County v. Hauser, 293 So.2d 681 (Fla.1974).
Declaratory and injunctive relief is available as a remedy for adverse administrative action "only in those extraordinary cases where a party has no other adequate administrative remedy to cure...
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