This article is the last in a series. It picks up from where the last article in the series left off, in a special post for the Holidays on Insurance Claims and Issues Blog on Friday, December 9, 2016, and accessible here: http://insuranceclaimsissues.typepad.com/insurance_claims_and_issu/2016/12/a-special-friday-post-florida-rejects-kickbacks-in-insurance-rates.html, last accessed on Sunday, December 11, 2016.
The Florida Office of Insurance Regulation (the Florida Insurance Commissioner) expressly requires an insurance company offering force-placed insurance policies in Florida to agree to exclude unauthorized commissions and other charges from the carrier's premiums before the OIR will approve a carrier's force-placed insurance rate. Three examples of the Florida OIR's Consent Orders have previously been discussed.
Where as in Florida the reasonableness of alleged kickbacks charged to a borrower by a mortgage lender was not approved by the State Insurance Commissioner as a part of an authorized force-placed insurance premium rate, the filed rate doctrine is simply not a part of the LFPI or lender force-placed insurance case.
To put it another way more specific to Florida, because the approved rates of any carrier never include the kickbacks and commissions that the carriers provide to the banks in exchange for the banks purchasing lender force-placed insurance policies, the rates of insurance companies providing the LFPI policies will not require adjustment by a court in an LFPI case.
Foreign law made in cases decided outside of Florida have no place here. For example, several lower federal courts in Florida have followed Second Circuit doctrine in the case of Rothstein v. Balboa Ins. Co., 794 F.3d 256 (2d Cir. 2015) (reversing District Court's examination of filed ratemaking in the States involved in that alleged class action --Texas, New Hampshire, and New York -- by imposing Second Circuit federal law without examining the laws of all of the States involved). See Dennis J. Wall, Case Summary, Rothstein v. Balboa Insurance Co. (2d Cir.), Filed Rate Doctrine Imported from Utilities Regulation to Insurance Law, 37 Ins. Litig. Rep. 435 (2015), available online at www.lenderforceplacedinsurance.com (last accessed on Sunday, December 11, 2016).
Two of the lower federal court decisions in Florida which followed the Second Circuit doctrine rather than Florida law in these cases, are currently on appeal to the governing federal appellate court, the Eleventh Circuit Court of Appeals, and there is a pending motion to consolidate them which is based on both decisions following the Second Circuit in essence: Patel v. Specialized Loan Servicing, LLC, ___ F. Supp. 3d ___, No. 15-62600, 2016 WL 1663827 (S.D. Fla. April 25, 2016), appeal docketed, No. 16-12100 (11th Cir. May 2, 2016), and Fowler v. Caliber Home Loans, Inc., NO. 15-24542-CIV-GOODMAN, 2016 WL 4761838 (S.D. Fla. September 13, 2016) (Goodman, USMJ), appeal docketed, No. 16-16585 (11th Cir. October 14, 2016).
I had hoped to provide readers with a hyperlink to the Eleventh Circuit Court of Appeals online dockets for these cases, but from what I could find on the court's website, the Eleventh Circuit basically makes only their opinions accessible to public view. Access to the Eleventh Circuit Court of Appeals' dockets apparently requires a subscription account with PACER (Public Access to [Federal] Court Electronic Records). A newsletter-type notice of new filings in the dockets of standout cases is offered by the Eleventh Circuit, link here: http://www.ca11.uscourts.gov/e-filing/notices-cases-interest, last accessed on Sunday, December 11, 2016. Unfortunately for the public, access again requires a subscription account with PACER. Nonetheless, for anyone with a subscription account on PACER, this may be a useful service and so I am providing a hyperlink to the Eleventh Circuit's website here.
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