Florida Com'n on Hurricane Loss Projection Methodology v. State, Dept. of Ins. and Treasurer

• Decision Date: 31 August 1998
• Docket Number: No. 97-3852,97-3852
• Citation: 716 So.2d 345
• Parties: 23 Fla. L. Weekly D2038 FLORIDA COMMISSION ON HURRICANE LOSS PROJECTION METHODOLOGY, Petitioner, v. STATE of Florida, DEPARTMENT OF INSURANCE and TREASURER, Respondent.
• Court: Florida District Court of Appeals

Page 345

716 So.2d 345

23 Fla. L. Weekly D2038

FLORIDA COMMISSION ON HURRICANE LOSS PROJECTION METHODOLOGY, Petitioner, v. STATE of Florida, DEPARTMENT OF INSURANCE and TREASURER, Respondent.

No. 97-3852.

District Court of Appeal of Florida First District.

Aug. 31, 1998.

Anne Longman of Lewis, Longman & Walker, P.A., Tallahassee, for Petitioner.

Steve H. Parton, Division of Legal Services, Department of Insurance, Tallahassee, for Respondent.

BENTON, Judge.

On grounds the court lacks jurisdiction to entertain a petition directed to (or to review on any other basis) a recommended order where the recommendation is fully favorable to the party seeking review, we dismiss the petition for writ of certiorari or in the alternative petition for review of non-final agency action filed by the Florida Commission on Hurricane Loss Projection Methodology.

The Florida Commission on Hurricane Loss Projection Methodology (FCHLPM) is an advisory panel of experts whose duty is to "provide the most actuarially sophisticated guidelines and standards for projection of hurricane losses possible, given the current state of actuarial science." § 627.0628(1)(c), Fla. Stat. (1997). On or about June 4, 1997, in order to challenge FCHLPM's use of a particular mathematical model for projecting losses hurricanes would cause, the Department of Insurance sent FCHLPM a document styled: Bill Nelson, In the Matter of A Decision of the Florida Commission on Hurricane Loss Methodology, and entitled "Petition for Formal Administrative Proceeding."

FCHLPM forwarded the Department's petition to the Division of Administrative Hearings, reserving all defenses and objections, then filed a motion to dismiss the petition on the basis that the Department of Insurance had no standing to institute such a proceeding, and that, in any event, FCHLPM was not an administrative agency subject to the Administrative Procedure Act, chapter 120, Florida Statutes (1997).

The administrative law judge entered a recommended order concluding that the Department did not have standing to initiate the administrative proceeding it sought and recommending that its petition be dismissed. The administrative law judge also expressed the opinion that

any "commission" as generally described in Section 120.52(1)(b), Florida Statutes (Supp.1996), created by the Legislature to exercise independent powers in association with state government is deemed to constitute an "Agency" as defined in Section 120.52(1), Florida Statutes (Supp.1996).

The FCHLPM now complains that "this conclusion, albeit in the nature of dicta, is a departure from the essential requirements of law and impairs the Commission's ability to carry out its responsibilities as required by the Legislature."

But the recommendation itself, which recommends the grant of the motion to dismiss--correctly, according to FCHLPM--was no departure from any legal requirement. See Charlotte County v. General Dev. Utils., 653 So.2d 1081, 1084 (Fla. 1st DCA 1995) ("To obtain certiorari review, a petitioner must demonstrate ... the order to be reviewed departs from the essential requirements of law...."). The administrative law judge examined both grounds FCHLPM urged for dismissal, accepted one, which was dispositive, and rejected the other.

Judicial review of a recommended order entered by an administrative law judge is appropriate in certain circumstances, to be sure. See Florida Dep't of Law Enforcement, Criminal Justice Standards and Training Comm'n v. Dukes, 484 So.2d 645 (Fla. 4th DCA 1986). "A preliminary ... order ... of an administrative law judge ... is immediately reviewable if review of the final agency decision would not provide an adequate remedy." § 120.68(1), Fla. Stat. (1997). See State, Dep't. of Community Affairs v. Division of Admin. Hearings, 588 So.2d 272, 274 (Fla. 1st DCA 1991).

In its petition here, however, FCHLPM expressly "recognizes that the Recommended Order of which it seeks review is favorable to the Commission." But FCHLPM's petition goes on:

Any doubt as to the manner in which the Commission is to move forward creates confusion and potential waste of the time and effort of a substantial number of state employees, and compromises the Commission's effectiveness. The part of the recommended order finding the Commission to be an...