Brisker v. Ohio Dep't of Ins.
| Decision Date | 03 September 2021 |
| Docket Number | No. 20CA3925,20CA3925 |
| Parties | Frederick BRISKER, Plaintiff-Appellant, v. OHIO DEPARTMENT OF INSURANCE, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
John A. Izzo, Graff & McGovern, LPA, Columbus, Ohio, and Michael H. Mearan, Portsmouth, Ohio, for Appellant.
Dave Yost, Ohio Attorney General, Crystal R. Richie, Principal Assistant Attorney General, Health and Human Services Section, for Appellee.
DECISION AND JUDGMENT ENTRY
{¶1} Frederick Brisker appeals the August 4, 2020 judgment entry of the Scioto County Court of Common Pleas which affirmed the Ohio Department of Insurance's order revoking his insurance license. Having reviewed the record, we find Mr. Brisker's assignments of error lack merit and are hereby overruled. Thus, we affirm the judgment of the trial court.
{¶2} Frederick Brisker, "Appellant," an independent insurance broker licensed since 1976, owns Fred Brisker Financial Advisors. He sold stocks, bonds, and annuities through his insurance business in Portsmouth, Ohio. Appellant had business relationships with Midland National Life Insurance Company, "MNLIC," and Parkland Securities, "Parkland."
{¶3} In 2019, Appellant was notified that the Ohio Department of Insurance, the "Department," had conducted an investigation of his activities and had concluded that he was not suitable to be licensed as an insurance agent in the State of Ohio due to two violations of R.C. 3905.14(B). Appellant was alleged to have impersonated an insured in the conduct of his insurance business, a violation of R.C. 3905.14(B)(9). Appellant was also alleged to have submitted a forged document in the conduct of his insurance business, a violation of R.C. 3905.14(B)(26). Appellant was provided notice of opportunity for a hearing on the matter.
{¶4} The Department eventually conducted its administrative hearing regarding the two allegations on August 14, 2019. Carrie Roe, John Murphy, Angel Bowers, Appellant, and several character witnesses on Appellant's behalf testified. At the beginning of the hearing, Appellant stipulated to one of the violations, impersonating one of his clients, Edwin Dyer.
{¶5} Regarding the allegation that Appellant submitted a forged document, Carrie Roe testified she worked for Appellant from 2009 to 2018 as his office manager and assistant. She resigned from Appellant's employment on good terms. Ms. Roe identified State's Exhibit D, an employment verification form submitted in support of Appellant's disability claim.1 The form indicates it is from UNUM.2 The form contains four pages of requested general information as to Appellant's employment, including work hours, travel required, job duties, and various occupational requirements. The answers to the questions on the form are printed in the blanks provided. The first page of the form demonstrates it is addressed to "Jack Murphy" at Appellant's business address. The last page of the form required a signature and phone number. The name "Jack Murphy" is handwritten on the signature line and is printed on the line below.
{¶6} Roe testified that while she was employed by Appellant she received a call from John Murphy requesting a copy of Exhibit D, the employment verification form. John Murphy is a regional sales director employed by MNLIC. Roe found an original on Appellant's desk. Roe also found a fax confirmation form. As Roe reviewed Exhibit D, she testified that the printing appeared to be Appellant's. Ms. Roe also testified that on the day she returned Appellant's office keys, Appellant advised that he had been terminated from Parkland because of "the form that he signed Jack's name to." On cross-examination, Ms. Roe acknowledged that she now works for one of Appellant's competitors.
{¶7} John Murphy testified his nickname is "Jack." Mr. Murphy also identified Exhibit D. Mr. Murphy testified he first learned of Exhibit D when he was contacted by UNUM. UNUM's representative wanted to ask him questions about the form he had submitted in support of Appellant's disability claim. Murphy testified he knew nothing about this form at the time he was contacted by UNUM.
{¶8} Murphy testified that thereafter, he contacted Appellant's office, spoke with Carrie Roe, and requested a copy of the form. When he received Roe's fax, he noticed his name was forged on the document. Murphy denied signing the form, supervising Appellant, or ever using Appellant's address or phone. Earlier, Roe had also testified that Mr. Murphy never worked from Appellant's office. Murphy testified he had known Appellant for 15 years and the printing on the claim form looked like Appellant's printing.3
{¶9} Angel Bowers testified she is employed as an investigator with the Department. She received information that Appellant was terminated from Parkland due to the employment verification form. She also learned about the impersonation from MNLIC. Bowers obtained a recording of the impersonation phone call. Ms. Bowers testified that she interviewed Edwin Dyer. Mr. Dyer told her that he gave Appellant permission to request information but not to impersonate him. She characterized Mr. Dyer as being "concerned" about the impersonation.
{¶10} Ms. Bowers interviewed Appellant in February 2019. Appellant initially denied making the phone call. After the recorded impersonation phone call was played, Appellant apologized and said he did not recall making the call.
{¶11} Appellant testified his clients, Edwin and Susan Dyer, lived a distance of six hours away from his insurance office. They were having difficulty getting information from MNLIC so they authorized him to contact the company on their behalf. Appellant was getting ready to see the Dyers for a yearly review and needed to have full information from MNLIC before traveling six hours to meet them. Although admitting the impersonation, Appellant viewed it as for a laudable purpose—fulfilling his obligation to assist his clients.
{¶12} Appellant also admitted Mr. Murphy never worked for him.4 As to Exhibit D, the claim form, Appellant admitted the hand printing on the form was his, but he denied signing Mr. Murphy's name to the last page. Appellant testified he did not know how the claim form reached UNUM. Appellant did not recall telling Ms. Roe he signed Mr. Murphy's name. UNUM ultimately paid Appellant $60,000 in disability benefits.
{¶13} The following Department's exhibits were admitted into evidence: Exhibit A, the Notice of Opportunity for Hearing; Exhibit B, Appellant's request for a hearing; Exhibit C, Notice and Order to Continue Formal Hearing; and Exhibit D, documents from Parkland which contained the forged disability claim form; Exhibit E, affidavit from Ethan Jones; and Exhibit F, messages on a CD.5 Appellant's exhibits admitted into evidence were: Exhibit 1, affidavit of Edwin Dyer; Exhibit 2, affidavit of Susan Dyer; Exhibit 3, Affidavit of Curt Baggett; and Exhibit 4, summary of cases reviewed by Mr. Baggett. Generally, the Dyers averred that they would continue to use Appellant's services.
{¶14} After hearing the testimony and reviewing the exhibits, the hearing officer found impersonation was proven through the testimony and exhibits, as well as admitted by Appellant. The hearing officer also found forgery was proven through the testimony and exhibits. On December 20, 2019, the Superintendent of the Department adopted the report and recommendation of the administrative hearing officer and issued an order revoking Appellant's insurance license.
{¶15} This administrative appeal was filed on December 27, 2019. On January 28, 2020, the parties through counsel agreed to have a complete record of proceedings filed under seal. The court issued a scheduling order, and the matter was set for oral hearing on April 10, 2020.
{¶16} Appellant filed his brief on February 28, 2020. The Department filed its brief on March 30, 2020. Appellant filed a reply brief on April 6, 2020. On August 4, 2020, the trial court filed its judgment entry affirming the Department's order.6 This timely appeal followed.
{¶17} In this appeal, Appellant argues that the common pleas court abused its discretion in finding that the order was based on reliable, probative, and substantial evidence and in accordance with the law. Appellant requests that his license be reinstated.
{¶18} In a R.C. 119.12 administrative appeal, a common pleas court must affirm the agency's decision if it is supported by "reliable, probative, and substantial evidence and is in accordance with law." See Hinton Adult Care Facility v. Ohio Department of Mental Health and Addiction Services, 4th Dist., Ross No.16CA3566, 2017-Ohio-4113, 2017 WL 2417088, at ¶ 17. See also, Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993) ; In re Williams, 60 Ohio St.3d 85, 86, 573 N.E.2d 638 (1991). " ‘Reliable’ evidence is dependable or trustworthy; ‘probative’ evidence tends to prove the issue in question and is relevant to the issue presented; and ‘substantial’ evidence carries some weight or value." Hinton, supra , quoting Ohio Civ. Rights Comm. v. Case W. Res. Univ., 76 Ohio St.3d 168, 178, 666 N.E.2d 1376 (1996), citing Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571, 589 N.E.2d 1303 (1992). Thus, when a common pleas court reviews the agency's finding, it must "appraise all the evidence * * * ‘and, if from such a consideration it finds that the * * * [agency's] order is not supported by reliable, probative, and substantial evidence and is not in accordance with law, the court is authorized to reverse, vacate, or modify the order * * *.’ " See Hinton, supra, at ¶ 18, quoting Univ. of Cincinnati...
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