DocketNumber: No. 85507.
Citation Numbers: 833 N.E.2d 798, 162 Ohio App. 3d 407, 2005 Ohio 4002
Judges: Sweeney, Calabrese, Corrigan
Filed Date: 8/4/2005
Status: Precedential
Modified Date: 10/19/2024
{¶ 1} Gary Peterson appeals from the decision of the common pleas court affirming the decision of the Ohio Department of Insurance. Peterson argues that the common pleas court's decision was not supported by a preponderance of reliable, probative, and substantial evidence, and that the court erred as a matter of law when it affirmed the department's order imposing two penalties for a single violation of R.C. 3945.14(B).1 For the following reasons, we affirm.
{¶ 2} In the early 1990s, Peterson met Florence Cherrison when she became a client of the bank where Peterson worked. Peterson helped Cherrison transfer her bank accounts from her previous bank in Florida. Shortly thereafter, Peterson began providing Cherrison with investment advice and even sold her a Ford Life Annuity. Later in 1999, Peterson persuaded Cherrison to exchange her original annuity for a Jackson Life annuity. The life annuity designated Cherrison's stepdaughter, Regina Lastoria, as the beneficiary. Peterson received a commission for both annuity sales.
{¶ 3} From 1992 until Cherrison's death at age 90, she and Peterson developed a close friendship. Peterson stated that he ran errands and paid and organized bills for Cherrison. Peterson described his relationship to Cherrison as friend, confidante, and trusted advisor and admitted that he was well aware of her financial condition.
{¶ 4} Once Cherrison and Peterson established a friendship, Peterson claimed that Cherrison wanted to change the beneficiary designation on her Jackson Life annuity from her stepdaughter to Peterson. In response, Peterson called the legal department of Jackson National Life Insurance in Michigan to determine whether he could be appointed the beneficiary, since he had sold the annuity to Cherrison. After speaking with the legal department, Peterson believed that he could be named the beneficiary of the annuity. He then submitted a change-of-beneficiary form designating himself as the beneficiary and also had Cherrison execute a producer-trustee or beneficiary-indemnification form, acknowledging that she had designated Peterson as her beneficiary on an annuity that she purchased from him. Peterson admitted that he did not review Ohio licensure law prior to submitting the change-of-beneficiary form, nor did he consult with an attorney licensed in Ohio. *Page 410
{¶ 5} Shortly thereafter, Peterson recommended an estate planner to draft Cherrison's will. During the drafting process, Cherrison informed the estate planner that she wanted Peterson to be the executor of her will and then designated Peterson as the principal beneficiary of her estate. Cherrison also granted durable power of attorney to Peterson.
{¶ 6} At the time of her death, Peterson held almost complete control over the financial affairs and assets of Cherrison. Cherrison named him as the beneficiary of her annuity, named him the executor and principal beneficiary of her estate, and granted him a durable power of attorney giving Peterson control of all major decisions in her life. Upon her death, Cherrison's total estate was worth $779,836, of which Peterson received approximately $450,000. Three hundred and fifty thousand dollars of that amount came from the Jackson Life annuity that Peterson had sold to Cherrison.
{¶ 7} Following Cherrison's death, Cherrison's stepdaughter sued Peterson, among others, in common pleas court. In response to that litigation, the Ohio Department of Insurance served Peterson with a notice of opportunity for hearing. The notice informed Peterson that the department proposed to take disciplinary action against his license based upon a violation of R.C.
{¶ 8} In his first assignment of error, Peterson argues that the common pleas court's order was not supported by reliable, probative, and substantial evidence, because the Ohio Department of Insurance failed to apply the mitigating factors of R.C.
{¶ 9} When reviewing an order entered by an administrative agency, the court of common pleas applies the limited standard of review set forth in R.C.
{¶ 10} R.C.
"The superintendent may suspend, revoke, or refuse to issue or renew any license as an agent, * * * surplus line broker, or limited insurance representative, or impose any other sanction authorized under this chapter, for * * * (14) Causing or permitting a policyholder or applicant for insurance to designate the person or the person's spouse, parent, child, or sibling as the beneficiary of a policy or annuity sold by the person, unless the person or a relative of the person is the insured or applicant."
{¶ 11} Neither party disputes that Peterson violated R.C.
{¶ 12} If a violation of R.C.
{¶ 13} Accordingly, we cannot say that the trial court abused its discretion in finding that the department's decision was supported by reliable, probative, and substantial evidence. Peterson's first assignment of error is overruled.
{¶ 14} In his second assignment of error, Peterson argues that the trial court erred as a matter of law by affirming the department's order imposing two penalties for a single violation of R.C.
{¶ 15} Peterson's argument is that the General Assembly's use of the word "or" in R.C.
{¶ 16} Peterson's focus on the language of R.C.
{¶ 17} Therefore, we find that the trial court did not abuse its discretion in affirming the department's punishment order. Peterson's second assignment of error is overruled.
Judgment affirmed.
CALABRESE and CORRIGAN, JJ., concur.
"I. The trial court erred as a matter of law by affirming the Ohio Department of Insurance order revoking the insurance license of appellant which order was not supported by reliable, probative, and substantial evidence by its failure to apply the factors of mitigation as set forth in Ohio Revised Code
"II. The trial court erred as a matter of law by affirming the department of insurance order imposing two penalties for a single violation of former Ohio Revised Code 3905.14(B)."