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Florida's 1st District Court of Appeal

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Insurance office, NCCI refute Sunshine Law claims in workers’ comp appeal

The Office of Insurance Regulation and an organization that proposes workers’ compensation premium rates have filed legal briefs refuting arguments that they calculated Florida’s recent 14.5 percent rate hike in violation of the Sunshine Law.

James Fee, a Miami workers’ compensation attorney fighting the increase, and a group of press and press-freedom organizations, had argued in their own briefs that the National Council on Compensation Insurance, or NCCI, was obliged to open its internal deliberations to public scrutiny, but failed to do so.

In reply briefs filed late last week with the 1st District Court of Appeal in Tallahassee, the insurance office and NCCI argued that the opposing parties misread the law.

“If the Legislature intended to make any discussion of rates subject to the Sunshine Law, it could easily have drafted a statute providing that a rating organization may only take actions pertaining to workers compensation or employer’s liability insurance rates in Florida at open meetings held in the state,” the insurance office wrote in a brief filed Thursday.

“That is not what Section 627.091(6) (of the Insurance Code) provides, and any attempt to rewrite the statute to greatly expand the breadth of its applicability, and read the important limitations actually included by the Legislature out of the statute, is improper.”

That section refers to “the committee of a recognized rating organization,” and says its deliberations fall under the Sunshine Law.

NCCI disbanded its internal committee in 1991. Senior actuary Jay Rosen crunched the numbers for the council, albeit in consultation with other NCCI employees.

NCCI proposes premium levels on behalf of most of the workers’ compensation insurers in Florida, subject to approval by the insurance office. It proposed a 19.6 percent hike but the office approved the smaller boost in August.

Attorneys for Fee — and, in a friend-of-the-court brief, for the Associated Press, the Florida Press Association, and the First Amendment Foundation — argued the arrangement amounted to an evasion of the Sunshine Law.

In its own brief, NCCI argued it was not obliged to do the work through a committee.

“Just because an entity can create a collegial body that would be subject to the Sunshine Law, does not mean an entity is required to create a collegial body that is subject to the Sunshine Law,” the council’s attorneys, led by Thomas Maida of Foley & Lardner, wrote.

“Applying the reasoning advanced by appellee and amicus, any governmental entity which has the power to appoint a collegial body to make decisions instead of utilizing a single decision-maker would be ‘evading’ the Sunshine Law if they chose not to create a collegial body,” the brief continues.

“The Sunshine Law does not, however, silently mandate the creation of collegial bodies to exercise decision-making authority whenever it would be possible to do so. It provides instead that, if such a collegial body with decision-making authority exists, meetings at which official acts are to be taken must be open to the public.”

A Leon County judge in December sided with Fee and issued a ruling blocking the rate increase. However, the 1st DCA allowed the increase to begin taking effect pending the appeal.

The insurance office and NCCI asked the court to consolidate oral arguments in the case.

Written By

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.

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