Summary
explaining that there is no right to pursue a separate challenge to an alleged nonrule policy where an adequate remedy existed through a section 120.57 proceeding
Summary of this case from Fla. Bd. of Prof'l Eng'rs v. RickettOpinion
Case No. 1D01-4798.
Opinion filed November 1, 2002. Rehearing Denied December 2, 2002.
An appeal from an order of the Division of Administrative Hearings.
John Radey, Elizabeth McArthur, and Donna E. Blanton, of Katz, Kutter, Alderman, Bryant Yon, P.A., Tallahassee, for Appellant.
Michael H. Davidson, of the Department of Insurance, Tallahassee, for Appellee.
This administrative case involves a collateral challenge by appellant United Wisconsin Life Insurance Company (United Wisconsin) to certain allegations in a section 120.57, Florida Statutes, administrative proceeding brought by the Department of Insurance against United Wisconsin. United Wisconsin contended unsuccessfully before an administrative law judge that specified allegations in the administrative complaint were in fact unpromulgated rules prohibited by section 120.54, Florida Statutes. We affirm for two reasons.
First, United Wisconsin made no showing of any statement of general applicability so as to require rulemaking by the Department. See § 120.52(15), Fla. Stat. (2000). The issues raised by the Department's complaint arose for the first, and so far, only, time as a result of certain of United Wisconsin's underwriting practices. The Department's administrative complaint alleged that these practices are facial violations of certain regulatory statutes.
Also, we agree with the administrative law judge that, on the present facts, United Wisconsin has no right to pursue a separate, collateral challenge to an alleged nonrule policy where an adequate remedy exists through a section 120.57 proceeding. United Wisconsin does not dispute the assertion that it was free to make, and in fact did make, the same arguments raised in this case in the then-pending section 120.57 proceeding. United Wisconsin has an adequate forum in the section 120.57, Florida Statutes, proceeding, and the now-pending appeal of the Department's final order in that case. We, of course, make no intimation as to the merits of that case.
AFFIRMED.
MINER, KAHN, and WEBSTER, JJ. CONCUR.