DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MILTON N. WHYNES,
Appellant,
v.
AMERICAN SECURITY INSURANCE COMPANY and WELLS FARGO
BANK, N.A.,
Appellees.
Nos. 4D16-2862 and 4D16-3668
[March 21, 2018]
Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Richard L. Oftedal, Judge; L.T. Case No. 50-
2015-CA-013127-XXXX-MB.
Jeffrey Golant of The Law Offices of Jeffrey N. Golant, P.A., Coral
Springs, for appellant.
Farrokh Jhabvala, Frank Burt and Peter D. Webster of Carlton Fields
Jorden Burt, P.A., Miami, for appellee, American Security Insurance
Company.
Sara F. Holladay-Tobias and Emily Y. Rottmann of McGuireWoods LLP,
Jacksonville, for appellee, Wells Fargo Bank, N.A.
CIKLIN, J.
Milton N. Whynes (“Whynes”) appeals the dismissal of his complaint
against American Security Insurance Company (“ASIC”) and Wells Fargo
Bank, N.A. (“Wells Fargo”). The complaint alleged a violation of a
consumer protection statute, section 626.9551(1)(d), Florida Statutes
(2015), and sought a declaratory judgment. Because the trial judge
correctly determined that the statute is inapplicable to any of the
allegations contained in the complaint, we affirm.
Whynes, a borrower, challenges the exchange of information between
his mortgagee bank, Wells Fargo, and the servicer that monitors required
levels of insurance on its mortgaged properties, ASIC, pursuant to section
626.9551(1)(d). Whynes alleges that, in exchange for this mortgage
monitoring service, ASIC has the exclusive right to impose “force-placed
insurance” 1 on the Wells Fargo properties if the properties become
uninsured through lapses or otherwise under-insured.
Underlying this action is section 626.9551(1)(d)’s provision that no
person may use or provide to others insurance information required to be
disclosed by a borrower to a lending institution in connection with a loan
“for the purpose of soliciting the sale of insurance” without the borrower’s
consent. (Emphasis added). Whynes alleged that, despite his
maintenance of insurance, ASIC force-placed insurance on Whynes’ home.
Further, he essentially alleged a specific violation of section 626.9551(1)(d)
in that ASIC used Whynes’ information to solicit the sale of a force-placed
insurance policy to Wells Fargo. Whynes sought a declaratory judgment
stating that ASIC may not retain his insurance information and that Wells
Fargo may not provide any more protected information to ASIC.
ASIC and Wells Fargo separately moved to dismiss, alleging, among
other things, that Whynes failed to state a cause of action: He did not
allege a “solicitation” within the meaning of section 626.9551(1)(d) since
his insurance was force-placed and Whynes, the borrower, was not directly
solicited. The trial court agreed and dismissed the complaint.
Accordingly, the issue before this court is whether section
626.9551(1)(d) requires the prohibited solicitation to be directed to a
borrower. We agree with the trial court that it does and, because there is
no binding authority interpreting section 626.9551(1)(d), we offer our
interpretation.
It is a fundamental principle of statutory interpretation that
legislative intent is the “polestar” that guides this Court’s
interpretation. We endeavor to construe statutes to effectuate
the intent of the Legislature. To discern legislative intent, we
look “primarily” to the actual language used in the statute.
Further, “[w]hen the statute is clear and unambiguous, courts
will not look behind the statute’s plain language for legislative
intent or resort to rules of statutory construction to ascertain
intent.”
1 “Force-placed insurance” refers to insurance coverage obtained by a mortgage
servicer where a borrower has failed to maintain or renew insurance coverage on
the subject property as required under the terms of the mortgage. See
12 U.S.C.
§ 2605(k)(2).
2
Borden v. East–European Ins. Co.,
921 So. 2d 587, 595 (Fla. 2006)
(alteration in original) (citations omitted). “In determining legislative
intent, we must give due weight and effect to the title . . . which was placed
at the beginning of the section by the legislature itself” and which “is a
direct statement by the legislature of its intent.” State v. Webb,
398 So.
2d 820, 824-25 (Fla. 1981). Further, “[a] phrase must be viewed in the
context of the entire statutory section.” WFTV, Inc. v. Wilken,
675 So. 2d
674, 678 (Fla. 4th DCA 1996).
Turning to the subject statute, section 626.9551 is part of Florida’s
Unfair Insurance Trade Practices Act, see section 626.951(2), Florida
Statutes (2015), and is entitled “Favored agent or insurer; coercion of
debtors.” The statute provides in relevant part:
(1) No person may:
....
(d) Use or provide to others insurance information required to
be disclosed by a customer to a financial institution, or a
subsidiary or affiliate thereof, in connection with the
extension of credit for the purpose of soliciting the sale of
insurance, unless the customer has given express written
consent or has been given the opportunity to object to such
use of the information. Insurance information means
information concerning premiums, terms, and conditions of
insurance coverage, insurance claims, and insurance history
provided by the customer. The opportunity to object to the
use of insurance information must be in writing and must be
clearly and conspicuously made.
§ 626.9551, Fla. Stat. (emphasis added).
The trial court did not err because the plain language of section
626.9551 indicates its prohibition of solicitations made directly to
borrowers. Although the language of subsection (1)(d) does not contain
such an express limitation, the portion of the section’s title, “coercion of
debtors,” contemplates a situation in which an insurer is dealing directly
with an unsophisticated party such as an individual borrower, not a
situation in which two sophisticated financial entities are dealing with one
another, such as when a bank purchases a force-placed insurance policy
from an insurer. The other subsections within section 626.9551 also
support this conclusion, as they largely contemplate direct dealings with
borrowers and/or customers. See, e.g., § 626.9551(1)(a)-(b) (prohibiting a
3
lender from conditioning a loan on a borrower obtaining an insurance
policy through a particular insurer and prohibiting the rejection of a
requisite insurance policy because it was underwritten by a person not
associated with a lender).
Whynes urges this court to defer to Florida Administrative Code Rule
69O-124.015, which he contends supports his interpretation of the
statute. Because the language of the statute is clear, there is no reason to
and therefore we will not defer to administrative construction. See Felder
v. King Motor Co. of S. Fla.,
110 So. 3d 105, 107 (Fla. 4th DCA 2013)
(“[A]dministrative construction of a statute . . . and other extraneous
matters are properly considered only in the construction of a statute of
doubtful meaning.” (emphasis in original) (citation omitted)).
Affirmed.
LEVINE and KLINGENSMITH, JJ., concur.
LEVINE, J., concurs specially with opinion, in which KLINGENSMITH, J.,
concurs.
LEVINE, J., concurring specially.
I concur with the majority opinion that the trial court correctly found
that the text of section 626.9551(1)(d), Florida Statutes, was inapplicable
to the facts of this case. However, I write to address two issues.
First, I write to note that in interpreting a statute, one should first
consider the text of the statute. The legislature’s intent is then considered
only if a statute is not clear and unambiguous. The majority opinion
contains the oft-quoted maxim that “[i]t is a fundamental principle of
statutory interpretation that legislative intent is the ‘polestar’ that guides
this Court’s interpretation.” As Justice Lawson recently opined:
Florida’s appellate courts have for decades routinely framed
the statutory construction task in general (for all cases) as
starting with the “legislative intent as polestar” maxim. We
next explain that “legislative intent” is discerned “primarily
from the text of the statute.” This construct improperly and
confusingly elevates a secondary rule of construction to a
primary position, but is harmless in most cases because we
regularly explain that intent is determined primarily from the
text of the statute—and that the inquiry should end with the
text when it is clear and unambiguous. However, there is a
potential harm.
4
Schoeff v. R.J. Reynolds Tobacco Co.,
232 So. 3d 294, 313-14 (Fla. 2017)
(Lawson, J., concurring) (citations omitted). Our consideration of a statute
should always start—and if possible, end—with the text. Only after
reviewing the text should we look, if needed, to “legislative intent.”
Second, I write to join those judges who have questioned the idea that
courts should automatically defer to an agency’s interpretation of a statute
even where there is no technical expertise involved in its interpretation. In
this case, appellant in his brief complained that “the circuit court failed to
accord appropriate deference to the Florida Department of Financial
Services’ authoritative interpretation” of the statute in question. Appellant
fails to explain why an agency can read or interpret a statute like the one
dispositive to the resolution of this case with more clarity or accuracy than
the members of the judiciary. See Housing Opportunities Project v. SPV
Realty, LC,
212 So. 3d 419, 425 n.9 (Fla. 3d DCA 2016) (“There is no
reason for the rule [of deference] when we are as capable of reading the
statute or rule as the agency, which may well have its own [] agenda.”).
The judiciary has long grappled with this issue. Justice Scalia analyzed
the problem of federal administrative deference, or “Chevron deference,” by
noting that it could lead to the “abdication of judicial responsibility.”
Antonin Scalia, Judicial Deference to Administrative Interpretations of Law,
1989 Duke L.J. 511, 514 (1989). A half century earlier, Justice Sutherland
warned that the “appropriation of unauthorized power by lesser agencies”
threatens constitutional guarantees. See Jones v. Sec. & Exch. Comm’n,
298 U.S. 1, 24 (1936).
I agree with Judge Frank Shepherd, who opined in a concurrence that
“this court should seriously consider the constitutional implications of
blindly adhering to the mantra so regularly incanted by the Court to
support, uphold, or approve agency decision-making that ‘an agency’s
interpretation of a statute, with which it is entitled with administering
shall be accorded great weight . . . .’” Pedraza v. Reemployment Assistance
Appeals,
208 So. 3d 1253, 1256 (Fla. 3d DCA 2017) (citation omitted). He
rightly pointed to the “due process problem of automatically taking the
side of one of the parties in the case.”
Id. at 1257. He further noted that
“deference to an agency’s construction or application of a statute
implicates . . . separation of powers questions deserving of serious
contemplation by future members of this and other courts around the
state.”
Id.
Because of due process and separation of powers concerns, I agree that
we should give serious thought to the implications of automatic deference.
5
That sort of deference to agencies is often removed from any showing of
agency expertise justifying such deference.
Thus, although there are times that there could be a demonstrable need
for deference to agency interpretation, that deference ought to be coupled
to a showing of exacting technical expertise. See, e.g., Island Harbor Beach
Club, Ltd. v. Dep’t of Nat. Res.,
495 So. 2d 209 (Fla. 1st DCA 1986)
(deferring to Department of Natural Resources’ interpretation of “beach-
dune system” because it required agency expertise).
In other circumstances, such deference is unwarranted. See Donato v.
American Tel. & Tel. Co.,
767 So. 2d 1146, 1153 (Fla. 2000) (rejecting
Florida Commission on Human Relations’ interpretation of “marital
status,” an unambiguous phrase); Muratti-Stuart v. Dep’t of Bus. & Prof’l
Regulation,
174 So. 3d 538, 540 (Fla. 4th DCA 2015) (observing that a
court need not defer to an agency interpretation when that interpretation
did not require the use of agency’s special expertise); Doyle v. Dep’t of Bus.
Regulation,
794 So. 2d 686, 690-91 (Fla. 1st DCA 2001) (declining to defer
to labor regulation agency’s interpretation of an attorney fee statute).
Deference should be rare and infrequent and observed only when it is
warranted by significant, specialized technical knowledge. Thus, as a
result of legitimate concerns of due process and separation of powers, we
ought to think long and hard before we automatically defer to agencies
and, by deferring, diminish the court’s own ability to read, analyze, and
interpret the statute or regulation at issue. Justice Gorsuch got it right
when writing about federal administrative deference while on the Tenth
Circuit:
There’s an elephant in the room with us today. We have
studiously attempted to work our way around it and even left
it unremarked. But the fact is Chevron and Brand X permit
executive bureaucracies to swallow huge amounts of core
judicial and legislative power and concentrate federal power
in a way that seems more than a little difficult to square with
the Constitution of the framers’ design. Maybe the time has
come to face the behemoth.
Gutierrez-Brizuela v. Lynch,
834 F.3d 1142, 1149 (10th Cir. 2016)
(Gorsuch, J., concurring).
Maybe the time has come to face unwarranted deference to
administrative agencies here in Florida as well.
6
* * *
Not final until disposition of timely filed motion for rehearing.
7
