Collignon v. Larson, D-195

• Decision Date: 18 September 1962
• Docket Number: No. D-195,D-195
• Parties: Robert E. COLLIGNON, Appellant, v. J. Edwin LARSON, as State Treasurer and Insurance Commissioner of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 246

145 So.2d 246

Robert E. COLLIGNON, Appellant, v. J. Edwin LARSON, as State Treasurer and Insurance Commissioner of the State of Florida, Appellee.

No. D-195.

District Court of Appeal of Florida, First District.

Sept. 18, 1962.

Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for appellant.

Richard W. Ervin, Atty. Gen., Robert J. Kelly, Asst. Atty. Gen., and Peter Guarisco, Asst. Gen. Counsel, for appellee.

Keen, O'Kelley & Spitz, Tallahassee, amicus curiae.

WIGGINTON, Judge.

Appellant, a duly licensed life insurance agent for Northwestern Mutual Life Insurance Company, has appealed an order of appellee Insurance Commissioner which found him guilty of violating certain statutes regulating trade practices in the insurance business, and placed him on probation for a period of one year. It is contended that the evidence fails to support the findings and conclusions upon which the order is predicated.

The undisputed facts established by the record reveal that in July of 1957 one Dr. Weinkle of Miami Beach purchased three ordinary life insurance policies from Fidelity Bankers Life Insurance Corporation through its local agent, one Ira Mogul. During the two year period which followed Dr. Weinkle became apprehensive as to the financial stability of the company whose policies he had purchased. In July 1959 Weinkle decided to purchase another life insurance policy and thereupon contacted appellant. Weinkle expressed dissatisfaction with the three policies which he held with Fidelity, and requested information concerning Northwestern and the type of policy it was prepared to offer. In response to this inquiry appellant produced and exhibited for Weinkle's examination and study the current edition of Best's Life Insurance Reports, which is an authoritative document containing statistical data and other information concerning recognized insurance companies operating in this country. From this source Weinkle ascertained the respective financial condition of Northwestern and Fidelity. He was also furnished other pertinent data concerning Northwestern and examined a specimen form of policy issued by it. Based upon this information and his own independent judgment, Weinkle purchased from appellant a life insurance policy issued by Northwestern. At the same time he decided to replace the three Fidelity policies which he held with Northwestern policies. When all four policies were delivered, he accepted them and paid the annual premium on each, permitting the three policies which he held with Fidelity to lapse.

Upon being notified that the Fidelity policies had lapsed, Mogul contacted Weinkle in an endeavor to persuade him to reinstate them. During this discussion Mogul made certain points concerning the wisdom of Dr. Weinkle's decision which raised questions that appellant was requested to answer. The oral exchange of sales talk between the two insurance agents produced no satisfactory answers and served only to confuse Dr. Weinkle. In order to clarify the situation appellant volunteered to prepare a memorandum in which he would endeavor to set forth a comparative analysis of the life policies issued both by Northwestern and Fidelity, pointing up the advantage and disadvantages to Weinkle of the policies issued by each company. At the time of this offer agent Mogul was invited to furnish Weinkle a similar memorandum. In pursuance of this undertaking Collignon prepared and delivered to Dr. Weinkle a memorandum referred to in this proceeding as a statement, comparative analysis or statistical report containing an evaluation of the relative advantages and disadvantages between the life policies issued by Northwestern and Fidelity. This memorandum was prepared and delivered on October 16, 1959, and a copy was furnished to Mogul for his information and use in preparation of the memorandum to be furnished by him. It is this memorandum which formed the basis of the charges against appellant for which he stands convicted.

In the preparation of the questioned memorandum appellant used only standard reference sources for the facts set forth therein. It covers thirty different items of comparison which appear in one or more of the reference works utilized in its preparation. This is the first memorandum of its kind appellant had ever attempted to formulate in the course of his insurance business. He testified that it was relatively complete, and to the best of his understanding was an honest presentation of the items included therein.

Mogul, for reasons best known to him, declined to prepare or furnish to Weinkle a memorandum of any kind which could have served to resolve the questions he had raised during his conference with Weinkle, or for the purpose of questioning or correcting the accuracy of any facts, comparisons, or statements of opinion contained in appellant's memorandum. Instead, Mogul prepared a letter which he requested Dr. Weinkle to sign. This letter stated that the Fidelity policies had been cancelled not because of any cost comparisons, but because appellant had convinced Weinkle of Fidelity's financial instability. Dr. Weinkle refused to sign this letter because in his opinion it did not state the true facts. He did, however, write a letter to Mogul in which he outlined in detail the factors which influenced his decision in favor of the Northwestern policies, which factors convinced him that it was to his advantage to follow the course he had previously adopted. Weinkle testified that the purpose of writing this letter was to clearly explain his position in the matter, and to furnish Mogul an opportunity to point out any errors or mistakes known to him which may have influenced the decision. Mogul failed to reply to this letter or to furnish any information in writing to Weinkle or to appellant challenging the accuracy of the memorandum in question, or the conclusions stated in Weinkle's communication. Instead, Mogul lodged with respondent commissioner a complaint against appellant charging him with a violation of the statutes of which he was ultimately found guilty.

The complaint filed in this proceeding contains three charges. Since the Commissioner failed to find any evidence to sustain the first charge alleged in the complaint, we will confine our discussion to the remaining charges set forth therein. The second charge alleges that appellant prepared, issued and circulated a statement or report represented to be an evaluation of the relative advantages and disadvantages of replacing life insurance policies issued by Fidelity with policies of Northwestern, in which statement or report appellant misrepresented or made misleading statements as to the terms of the policies issued or to be issued, or the benefits or advantages promised thereby, or made misleading representations or misrepresentations as to the financial condition of Fidelity. The remaining charge alleges that appellant made and issued the mentioned statement or report containing misleading statements, innuendoes or incomplete comparisons maliciously critical of or derogatory to the financial condition of Fidelity.

The testimony in the case was taken before a special examiner who transmitted his report to the commissioner without findings, conclusions or recommendations. The record reveals that Mogul, Fidelity's agent, was present throughout the hearing, but failed to testify in support of the charges against appellant. The record further reveals that Fidelity was also represented at the hearing by...