Michael Moline, Author at Florida Politics - Page 7 of 51

Michael Moline

Michael Moline is a former assistant managing editor of The National Law Journal and managing editor of the San Francisco Daily Journal. Previously, he reported on politics and the courts in Tallahassee for United Press International. He is a graduate of Florida State University, where he served as editor of the Florida Flambeau. His family’s roots in Jackson County date back many generations.

PSC examines progress of storm-hardening Florida’s electricity grid

Among the most significant obstacles to strengthening Florida’s electric transmission grid against hurricanes is a lack of access to telephone poles. Utilities rely on thousands of poles statewide that they don’t control.

Other obstacles include trimming trees that might fall onto transmission lines.

Complaints about those problems featured prominently during Florida Public Service Commission hearings on hurricane preparedness and response in Tallahassee Wednesday.

Fully 200,000 of the 1.2 million utility poles Florida Power & Light relies upon are owned by telecommunications companies, Bryan Olnick, vice president for distribution and reliability, told the commission.

“They are very much a weak link in our system,” he said.

Yet they form an essential part of the electric infrastructure. FPL inspects all of its poles on an eight-year cycle. “Telephone utility poles to do not. The suggestion is that, since they are part of our system, they also comply with whatever the electric utility standards are. Because pole inspections make a big difference,” Olnick said.

No one — neither the utilities nor commission members — was certain who precisely regulates these poles, however.

Meanwhile, homeowners and local governments don’t always cooperate with tree-trimming efforts, Olnick and other utility executives said.

Commissioner Gary Clark suggested the state might need to pre-empt local governments on the matter. “You’re dealing with 20 different municipalities that have 20 different sets of rules,” he said. “This is for the benefit of everybody that is on this line — we are going to clear this.”

Public and investor-owned utilities sent executives to address the commission, which has emphasized storm hardening since 2006. The push includes regular inspections; infrastructure hardening, including replacing wooden poles with sturdier models, steel or concrete; closer coordination with local governments; collecting and analyzing data during and after storms; and moving equipment underground.

According to testimony by Olnick and other executives, the effort is paying off. For example, following Matthew, FPL restored 95 percent of its customers within two days; following Irma, it was 50 percent within one day. During Wilma, it took five days to restore 50 percent.

Hardened infrastructure performed significantly better than nonhardened. During Matthew, no hardened power poles failed. During Irma, only 26 failed. For nonhardened, 408 poles failed during Matthew and 2,834 during Irma. Not one hardened transmission structure failed during either hurricane.

Underground infrastructure performed 95 percent better than aboveground during Matthew, and 80 percent better during Irma, he said.

But it is no panacea. FPL saw damage to its underground infrastructure during recent storms because felled tree roots damaged equipment, Olnick said.

Court opines on workers’ comp, actors’ payroll firm

An appellate court has rejected attempts by Florida’s last-chance workers’ compensation insurer to deny coverage to a company that manages payrolls for “talent” in the movie, television, and radio commercial industries.

The Florida Workers’ Compensation Joint Underwriting Association Inc. had twice sought to deny coverage to American Residuals and Talent Inc., or ART, arguing that the company was a mere payroll service.

The 1st District Court of Appeal, in a unanimous three-judge opinion issued Monday by Judge Thomas Winokur, sided with the Florida Division of Business and Professional Regulation, which had decided that the company was entitled to buy coverage.

The panel rejected the insurer’s argument that that outcome would upend the workers’ compensation market.

“DBPR investigated ART twice and found that ART did not operate as an unlicensed employee leasing company,” Winokur wrote.

“Companies that lease their employees to its clients will still be required to obtain licensure pursuant to Florida law,” he wrote. “In addition, this ruling does not exempt ART from any applicable licensure requirements if it changes its operating practices.”

ART, based in New Hampshire, doesn’t interview, hire, or fire the actors and others it connects with production companies, the court said. However, it pays the talent; makes sure clients obey local and federal labor regulations and union rules; and tracks residual payments owed.

In addition, ART’s contracts with clients hold that it is the “employer of record,” the court said.

“(The insurer’s) argument is not that ART is not an employer, but rather based on the distinction between ‘direct’ and ‘indirect’ employers. This distinction, however, is nowhere to be found in Florida law or, for that matter, (the insurer’s) Operations Manual.”

The court swept aside the insurer’s fears that the outcome could require it to sell to companies that merely process other employers’ payrolls.

“ART does more than just the ministerial function of issuing paychecks to its client’s employees. ART operates as the employer of record for the talent,” Winokur wrote.

“ART assumes an employer’s responsibility of paying talent and ensuring that they are provided with the insurance required under the law of the jurisdiction where they are employed, while its clients handle the creative aspect of interviewing and hiring the right talent for its productions.”

The opinion describes the association as “a self-funding, residual-market insurer created by the Legislature in order to provide workers’ compensation insurance to employers who are statutorily required to maintain such insurance, but who are unable to obtain coverage from private insurers in the voluntary market.”

Court rejects Keys residents’ challenge to Citizens rates

An appellate court has rejected a community group’s challenge to premium levels for Citizens Property Insurance Corp. customers in Monroe County.

State law provides no avenue for the formal administrative challenge sought by Fair Insurance Rates in Monroe Inc., a unanimous three-judge panel of the 1st District Court of Appeal in Tallahassee concluded on Monday.

The suit named the Office of Insurance Regulation, and involved rates for Citizens policyholders that regulators OK’d effective on Feb. 1, 2017 — over complaints by Monroe County property owners that they drew upon unreasonably pessimistic calculations of the potential risk there.

“We conclude that (the Insurance Code) does not contemplate administrative review by Citizens’ policyholders of final rate orders,” the court said in an opinion by Chief Judge Bradford Thomas.

The code allows challenges when regulators issue a notice of intention to approve insurance rates, the court said. But the Legislature eliminated that opportunity for Citizens policies in 2007. Indeed, lawmakers eliminated Citizens’ standing to appeal final rate orders.

“We conclude that the plain text of (code) is not clear and unambiguous in regard to whether a Citizens policyholder can seek administrative review of a final order establishing rates,” Thomas wrote.

“However, in light of the statutory framework under which Citizens operates and the fact that a ‘final order’ signifies the conclusion — not the start — of the administrative process, we hold that appellant was precluded from seeking review of the final orders establishing Citizens’ rates.”

In a rate order published on Sept. 16, 2016, the insurance office conceded that loss projection models for the Florida Keys diverged widely, but said the rates should take effect pending a study of the situation.

“OIR is pleased with this ruling and looks forward to continuing to work with FIRM and other stakeholder groups in Monroe County and across the state of Florida to find solutions that lower property insurance rates,” Insurance Commissioner David Altmaier said in a written statement.

Workers’ compensation appeals board parses risk for thousands of companies

Daytona Aircraft Services had a beef with its workers’ compensation carrier — it believed the insurer had misclassified its operations, and that the mistake was costing $18,000 per year in inflated premiums.

The company presented its case Tuesday before the Florida Workers’ Compensation Appeals Board, an independent forum overseen by the state Office of Insurance Regulation. It was one of two appeals the panel took up during a two-hour meeting in a Tallahassee hotel conference room.

Daytona argued its carrier was treating it like an airline — the wrong classification, it contended, for a company that provides highly skilled repair and maintenance services for smaller prop and jet aircraft. The board, comprising representatives of carriers and employers, turned down the appeal on a 4-2 vote.

Owl Inc. fared better in its appeal of its classification for transporting patients to and from medical appointments under a contract with the Veterans Administration in Orange County.

The board agreed, 3-2, that the company was more like a bus, street rail or scheduled limousine service than a taxicab operator. Panel members also suggested Florida might need a new category for paratransit operations like Owl.

The classifications at issue are the work of the National Council on Compensation Insurance, or NCCI, the state’s ratings agency for workers’ comp insurers, and they place thousands of workplaces along a scale of risk. The company is a nonvoting member of the board. Unhappy appellants are free to appeal to the Office of Insurance Regulation — something Daytona Aircraft said it would do.

We talked to Dawn Ingham, state relations representative for NCCI, about those categories, the appeals board, and their place in the workers’ compensation system.

FP: What is this board all about? Where does it fit into the workers’ compensation system? How key is this to making the system work well?

DI: It’s a means for policyholders who are dissatisfied with the application of NCCI manual rules or classifications to their policies, for that dispute with their carrier to be heard by a third party — this appeals board, that’s made up of employers and carrier agent representatives.

FP: Thousand of dollars can ride on the decisions this board makes — isn’t that right?

DI: Yes. Businesses are classified by classification codes, and each code has a rate associated with it per $100 per payroll. If you believe your business should be in a different class code, that code could have a lower rate than what they’re paying now.

FP: And these class codes are meant to assess risk?

DI: I guess you could say that. A roofing company is going to be in a different class code than a hotel, because there’s a different exposure to risk.

FP: What does the board look at when weighing these cases?

DI: First of all, NCCI provides a copy of the rules associated with a dispute that are filed and approved by the Office of Insurance Regulation. They also receive information about the carrier’s position in the dispute, and how they arrived at whatever decision they made. And then the policyholder also provides their position in the dispute, and why they think they’re correct.

FP: NCCI plays a significant role in this. You devise the classifications; you advise the board on interpreting the classifications. But you don’t serve on the board, itself.

DI: We are a nonvoting member of the board. There’s a Florida statute that we comply with that requires us to provide this mechanism for disputes to be heard.

FP: Part of the service as the state’s rating agency.

DI: Exactly.

FP: What else about the process do we need to know?

DI: When you think about how many policies are written in Florida, very few of them get to this level. We just heard two today. Usually, the board meets a few times per year, and usually there are one or two disputes heard.

FP: It strikes me that it is a safety valve.

DI: It provides a great service to the policyholder. The board members ask a lot of really good questions. They want to make sure that they’re getting it right, in accordance with the filed and approved rules.

FP: And they help NCCI identify ambiguities that need to be addressed in terms of the classifications. Maybe we need a new classification — that came up today.

DI: That’s a good point. NCCI identifies changes to our classifications. We will look at decisions made by the board, at the kind of disputes that make it to this level. Obviously, the less ambiguity the better.

FP: Do we need a paratransit classification, for example?

DI: That would be something we’d consider, based on these types of disputes that are presented to the appeals board.

The CRC’s Brecht Heuchan defends ‘grouping’ in proposals sent to voters

Florida’s 39-member Constitution Revision Commission is catching flak for “grouping” items among the eight proposals it has voted to place before the electorate. For example, the first item combines victims’ rights, a judicial rule of statutory interpretation, and the judicial retirement age. Brecht Heuchan, the businessman-lobbyist who chaired the CRC’s Style and Drafting Committee, believes the criticism is unwarranted in light of precedents set by past commissions. Heuchan discussed his takeaways from the revision process in an interview with Florida Politics.

FP: Are you satisified with the overall process? Did it allow everyone’s voice to be heard?

BH: Oh, sure. We had 15 public hearings. We had thousand and thousands of people come out to those hearings. Then we had tons of committee hearings where the public could be heard and commissioners could make their voices heard. We had a lot of floor sessions, as well.

The process of the groupings has been criticized by some in the media and some in the special interest group category. But I don’t think you’ll find a commissioner who’ll say they weren’t heard, or that the process stymied them. Certainly, not everybody got their way, including me. But I felt like my voice was heard, and I’m quite certain others feel the same way.

FP: Let’s talk about the grouping process then. Define if for me, and what do you think about it?

BH: Related items can be grouped together into one amendment that goes on the ballot. This process was done in both of the prior Constitutional Revision Commissions. In 1978, they had eight proposals; they were all grouped — all of them. In 1998, they had nine proposals and eight of them were grouped. without the apparent outrage. We actually did less grouping than the prior two commissions had done — we grouped six proposals and left six of them standing by themselves. It was a balance. We took that process very seriously, and the outcome shows it.

We are operating under the 1968 Constitution — subsequently amended, of course. That constitution was about 23,000 words. It was grouped into three amendments. Three — not eight, not nine, not 12, but three. Amendment No. 1 was about seven or eight of the 12 articles that we currently have, all put into one revision.

FP: This does not implicate the single-subject rule for amending the Constitution, because you’re the CRC?

BH: That’s correct. The single-subject rule applies to citizens’ initiatives, it applies to the Legislature, but it does not apply to the CRC. The drafters envisioned an avenue for more comprehensive change, subject to the will of the voters. They didn’t want the CRC or the people of Florida to be hindered by the single-subject requirement.

Just take what our CRC did — there were 20 amendments that passed individually. Instead of the eight they will be considering, they would be considering 20. The ultimate benefit is to the voter who does not have to wade through an extraordinarily long ballot.

FP: And we don’t get a phone book-sized list of propositions like they do in California?

BH: It’s a trade off. The other thing is that in some areas of our state those ballots have to be translated into multiple languages. One of the things that we heard repeatedly from supervisors of election is to be careful how many you put there. Especially since two citizens’ initiatives were already on the ballot, and three were put there by the Legislature. I thought we did a good job of coming to some balance.

FP: Let’s talk about the Keep Our Constitution Clean group, which has criticized grouping.

BH: They’re not organized as a political committee, so they don’t disclose their donors, how they’re spending their money, who runs the organization. I find it incredibly hypocritical that groups like that are operating and no one’s calling them to task. My suspicion is that is that they don’t like the policies that the CRC has recommended to the voters, so they’re attacking the process. It’s dubious what they’re doing. It sounds good, but no one knows if it is good.

FP: Let’s get back to the CRC process. Was it too hard? Too easy?

BH: Amending the Constitution is supposed to be hard. You saw that in some of the outcomes. We started with a couple of thousand public proposals. Those were whittled down to 103 commissioner proposals. Those were whittled down through the committee process to 24 that were sent to the Style and Drafting Committee. Then they were whittled down to the 20 individual proposals that made it into eight amendments.

But it was remarkable the way the group did work together, and did complete our task — well ahead of schedule, I might add, and frankly with not a lot of dispute. The disputes we had were more than collegial and respectful of one another.

FP: We’re going to be back here 20 years from now. Any advice to those people?

BH: Be open-minded to other people’s views. Do your best to think through the rules you’re operating under. Try to think ahead. Our rules were inclusive, but they also gave a lot of authority to individual members, so I would recommend doing that again.

This may be down in the weeds, but we had two different vote thresholds — a majority vote threshold to send a proposal to Style and Drafting, and an affirmative vote of 22 to send something to the ballot. In retrospect, would have preferred to have the same vote threshold, whatever that is. Whether a majority or 22, it should just be the same.

One other piece of advice is to be aware of how much work it is — how much of your time is going to be required. It’s designed for citizens, people who have regular lives, and no one gets paid to do this. You’re going to give up other parts of your life to fully commit to this, whether your personal time or your work time or other things you like to do. It takes a lot of time, care, and attention — all of which it deserves.

Court OKs open records exemption for insurance claim disputes

An appellate court on Thursday unanimously upheld a public records exemption covering the names and addresses of consumers who challenge the disposition of claims against homeowner or sinkhole insurance claims.

Two law firms — Danahy & Murray, of Tampa, and Bennett Dennison, of Bradenton — had persuaded Leon County Circuit Judge Charles Dodson to strike down the exemption.

But a three-judge panel of the 1st District Court of Appeal, in an opinion by Judge Clay Roberts, said Dodson went too far. He ruled that the exemption both fulfills a public interest and was not overly broad.

“While the trial court may have disagreed that prohibiting disclosure of name and address information furthered the public necessity of fraud and identity theft prevention, that inquiry was not in its purview,” Roberts wrote.

“In order to be constitutional … , the Legislature had to articulate a specific purpose justifying the exemption. The Legislature did just that; therefore, (the exemption) satisfies the first prong for constitutionality.”

As for the exemption’s breadth, the Legislature had specified that it covered “personal financial and health information” including the “existence, identification, nature, or value of a consumer’s interest in any insurance policy, annuity contract, or trust,” the court said.

“(T)he scope of the exemption here is limited as to content, with the relevant terms and circumstances being defined,” Roberts wrote.

The exemption covers consumers participating in a mediation program for holders of residential property insurance policies, and the “neutral evaluations” system for sinkhole damage insurance. The consolidated legal challenges named the Department of Financial Services and CFO Jimmy Patronis as defendants.

The case arose from a policy shift one year ago. Previously, the department released spreadsheets including the names of policyholders, their addresses, phone numbers, email addresses, type of insurance, reasons for contacting the department, and insurance company information.

But officials decided they’d been misinterpreting the exemption. They began to limit access to the information — initially, regardless of whether an insured or insurer had initiated the mediation or evaluation; and ultimately, only when the consumer did so.

“We decline the plaintiffs’ invitation to speculate as to the reason for the disparate treatment of information when a consumer requests to participate in the programs as opposed to when the request comes from an insurer. If anything, this supports the argument that the Legislature intentionally drafted the exemption no broader than necessary,” the court said.

“It is logical that disclosure of personal identifying information could be used for fraud or identity theft, especially when disclosed in this context where the entity requesting the information also knows that a consumer has an insurance policy and has been involved in a dispute with an insurance company,” the opinion added.

1st DCA asks Supreme Court to reconsider personal injury claims involving pollution

The 1st District Court of Appeal asked the Florida Supreme Court on Wednesday to clarify whether the high court meant to rule eight years ago that state environmental law doesn’t allow parties to recover personal injury damages arising from toxic spills.

Judge James Wolf, writing for a unanimous three-judge panel, took the high court at its word and denied a damages claim by a tow-truck driver who said he suffered acid burns while responding to a big-rig that spilled a load of batteries across a roadway.

“(H)owever, we certify a question of great public importance asking the court to clarify the matter,” Wolf wrote.

The case involved the Pollutant Discharge and Control Act, a 1970 law allowing “any person” to sue over “the … loss of any real or personal property, or … destruction of the environment and natural resources, including all living things except human beings;” and the 1983 Water Quality Assurance Act, which allows “any person to bring a cause of action … for all damages resulting from … pollution.”

In Curd v. Mosaic Fertilizer, decided in 2010, the high court said the 1970 law’s ban on personal injury damages also applied to the 1983 law.

The parties in Wednesday’s opinion, Simon’s Trucking Inc. v. Lieupo, differed on whether that portion of the Supreme Court ruling amounted to “dicta” — judicial asides that don’t speak to the dispositive issue in a case, and that don’t carry precedential value, but that might influence the outcome of a case in the future.

Personal injury wasn’t at issue in Curd, which involved fishermen suing over pollution in the waters they worked.

The high court took an expansive view of the 1983 law, ruling that it allowed “any person” to bring a cause of action for “all damages.” But applying that “except human beings” language from the 1970 law meant that Lieupo lacked ground to sue.

Lieupo’s attorneys argued that the high court couldn’t have meant it — that the holding would contradict the statute’s plain language. Indeed, Justice Ricky Polston had disagreed with his colleagues on the point.”

“We cannot, however, overlook the fact that the Curd court specifically found the 1970 definition of damages was applicable to the fishermen’s cause of action brought under the 1983 act,” Wolf wrote — especially given that the court was well aware of Polston’s objection.

“As such, we are required to apply the 1970 act’s definition of damages here, which precludes appellee’s cause of action for personal injuries,” he continued.

“However, because it is difficult to discern whether the Curd court actually intended for this definition of damages from the 1970 act to be applied to all causes of action brought under the 1983 act, we certify the following question as one of great public importance: Does the private cause of action contained in Section 376.313(3), Florida Statutes, permit recovery for personal injury?”

Appeal court: Evidence didn’t prove worker was drunk when hit by a truck on U.S. 1

On Wednesday, a state appellate court overruled a workers’ compensation judge who denied death and funeral benefits for an employee’s widow on the ground that he was intoxicated when he stepped into the path of a truck on U.S. 1.

State law allows denial of benefits when a workplace death or injury is attributable to intoxication, the 1st District Court of Appeal said.

“Nevertheless, we reverse the denial of benefits because competent, substantial evidence … does not support the (judge’s) ultimate conclusion that the employee’s death was primarily occasioned by his intoxication,” Judge Bradford Thomas wrote for a unanimous three-judge panel.

The court cited failure by the employer and its insurer — Convergence Employee Leasing III Inc. and AmTrust North America of Florida — to comply with “the collection and chain of custody procedures set forth in the administrative rules.”

Specifically, the blood-alcohol testing process didn’t meet the correct legal standard, the court said, and additional evidence cited in the lower court was not conclusive.

According to the opinion, Matthew Inmon, a construction helper assigned to an out-of-town job, was walking to his employer-paid hotel after a visiting a bar a few miles away. Surveillance video showed him “weaving in and out of” the roadway. His wife testified that she’d been speaking to him via cellphone at the time, and that he’d dropped his device several times and appeared “intoxicated, but functional.”

But the cameras didn’t catch the collision itself, and testimony from a police investigator who wasn’t trained to evaluate accidents amounted to hearsay, the court said. A private investigator for the company and carrier produced no eyewitnesses to the actual accident, including the truck driver.

The evidence, therefore, was insufficient to establish that Inmon had been hit while in the road, rather than that the truck had veered off it, the panel concluded.

“In short, the (judge’s) deduction that the employee was in the road at the time of the collision is based on inferences with no direct evidence,” the court said. “Stacked upon this inference is the inference that the employee could only have been in the road because he was intoxicated. This is an impermissible stacking of inferences to establish an essential finding of fact.”

Florida’s Three Member Panel has three members at last

A key state workers’ compensation oversight board operated at full strength for the first time since 2014 on Tuesday, as its new employee representative took his seat.

Jason Robbins, a workers’ comp attorney from Melbourne, won the appointment from Gov. Rick Scott in June, but hearings in Tallahassee on reimbursement rates for medical providers under the system gave him his first opportunity to participate publicly.

“It was great,” Robbins said of his first meeting. “Very informative. I think the Division (of Workers’ Compensation) does a great job.”

The panel oversees medical reimbursements under the workers’ compensation system. Any increases of more than $1 million must be ratified by the Legislature. The panel OK’d reimbursement increases worth $144 million during the meeting.

As an attorney, Robbins represents workers under the worker’ comp system. He said he replied to an ad seeking candidates for the position, which Scott had left vacant until the Legislature began applying pressure. The approval process required interviews with the governor and his aides, and ratification by the Legislature.

The panel also includes a representative of business interests, plus Insurance Commissioner David Altmaier.

The commissioner chaired the meeting and welcomed Robbins to the panel.

“With workers’ compensation, there are two very key parties — you have the employers and you have the employees,” Altmaier said. “I think it’s important generally, for decision-making, to have as many perspectives as you can have.”

Stakeholders in the system have expressed the employee perspective, “so I don’t necessarily think we’ve lost anything by not having the employee representative on the panel,” Altmaier said. “But certainly having that position filled is going to be of benefit to us going forward.”

Did Robbins think the lack of someone to speak for workers harmed their interests?

“That might be a strong word,” Robbins said.

“I think it’s important that someone represents their voice. There’s a whole side of the law for the foot soldier that wasn’t discussed in this room. This is about money and efficiency,” he said. “The quicker they get their medical treatment, the quicker they get better, the quicker they get back to work.”

Robbins engaged actively in the hearing, asking a number of questions of division staff and industry representatives who addressed the panel. “As active as he’s been, I feel really good about having that spot filled,” Altmaier said.

Report dives into the weeds on workers’ compensation medical cost containment

Want to find out how Florida’s workers’ compensation system regulates pharmacy fees, as compared to other states? Provides treatment for PTSD? Manages the cost of hospital inpatient and outpatient fees?

The annual report from the Workers Compensation Research Institute, released this week, spells out all of that and more.

It’s intended as a one-stop resource for regulators, journalists, and other parties grappling with the messy details of workers’ comp policy.

The document comprises a series of tables containing state-by-state comparisons of the cost-containment policies, including medical fee schedules, choice of provider, treatment guidelines, and medical dispute regulations. Medical benefits represent the largest slice of workers’ comp costs.

It includes data from all 50 states, the District of Columbia, and federal compensation programs for longshoremen and federal employees.

“This study provides a basic understanding of the cost containment initiatives adopted nationally, and provides additional references for those who want more detail,” said Ramona Tanabe, the institute’s executive vice president and counsel.

“We don’t make any recommendations,” spokesman Andrew Kenneally said. “Our role is to provide information to help policymakers make decisions.”

The proprietary report is available here. The institute’s members include insurers, labor organizations, state regulators, business groups, and ratings organizations.

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