IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT STATE OF FLORIDA
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1 IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT STATE OF FLORIDA OFFICE OF INSURANCE, REGULATION Appellant, RECEIVED, 9/15/2016 5:27 PM, Jon S. Wheeler, First District Court of Appeal vs. STATE FARM FLORIDA INSURNACE COMPANY, Appellee. / Case No.:1D LT Case No.: 2014-CA-1267 RESPONSE TO OBJECTION TO APPEARANCE OF OFFICE OF THE INSURANCE CONSUMER ADVOCATE AS AMICUS CURIAE In accordance with this Court s September 12, 2016 Order, the undersigned hereby responds to the objection of Appellee, State Farm Florida Insurance Company ( State Farm ), and states as follows: 1. On September 6, 2016, State Farm filed an Objection to Appearance of Office of Insurance Consumer Advocate ( ICA ) as Amicus Curiae. 2. In said objection, State Farm contended that the ICA lacks the authority to appear in this Court under section , Florida Statutes. The prescribed rule for entry by a party as amicus curiae in an appellate proceeding in Florida is governed by Fla. R. App. P Amicus curiae is granted only by leave of court, with the movant stating the interest, the particular issue to be addressed, how the movant can assist the court in the disposition of the case, and 1
2 whether all parties consent to the filing of the brief. Fla. R. App. P (a). The rule does not require the movant to provide further basis or additional declaration of authority to enter an appellate matter. 3. The ICA met the requirements of Fla. R. App. P (a) in its filed Motion for Leave to File Amicus Curiae Brief in Support of Appellant, Office of Insurance Regulation ( Motion ). In introducing its interest in the instant proceeding, the ICA described itself as a government-created entity established by and deriving authority from section , Florida Statues. Motion at 2. The ICA stated its interest as an advocate tasked with examining insurance issues in the best interest of the Florida consumer. Motion at 2. The ICA also stated its intent to address the issue at bar by discussing the negative impact to Florida consumers and confidence in the property and casualty insurance market as a result of State Farm s position that the information required by (10), Florida Statutes, is trade secret and not available for public inspection. Motion at 4. As perhaps the most important requirement, the Motion addressed how the ICA can assist the court in the disposition of this proceeding by providing perspective and background for this Court s consideration in weighing the parties legal arguments. Motion at 4-5. Finally, the ICA fulfilled the last requirement of Fla. R. App. P (a) in its Motion by advising this Court of State Farm s objection to the ICA s entry as amicus. Motion at 5. The ICA therefore relies upon its filed Motion 2
3 as the foundation for its request to appear as amicus curiae pursuant to Fla. R. App. P (a). 4. State Farm also objects to the filing of the ICA s amicus brief because it contains no considerations germane to this appeal different than those in OIR s initial brief. 1 Amicus curiae briefs are generally admitted for the purpose of assisting the court in cases that are of general public interest of aiding in the presentation of difficult issues and within the discretion of the court to allow. Fla. R. App. P ; also noted in Liberty Counsel v. Florida Bar Bd. Of Governors, 12 So. 3d 183, 185 (Fla. 2009); Alexander v. Hall, 64 F.R.D. 152 (D.S.C.1974). In Ryan v. Commodity Futures Trading Comm n, 125 F. 3d 1062 (7 th Cir. 1997)(adopted by the 3 rd DCA in Rathkamp v. Dep t of Cmty. Affairs, 730 So. 2d 866, (Fla. 3d DCA 1999)), the court stated that an amicus brief should be allowed when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Ryan at Amicus briefs are by the nature of things not normally impartial. Strasser v. Doorley, 432 F.2d 567 (1 st Cir. 1970). While the ICA has expressly stated its support of OIR s position in this matter, the ICA s filed brief inures to the benefit 1 State Farm makes this contention by citing the decision of Rathkamp v. Dep t of Cmty. Affairs, 730 So. 2d 866 (Fla. 3d DCA 1999). However, State Farm fails to identify the basis upon which it contends that the Rathkamp decision is akin to the situation at bar. The Rathkamp opinion consists of exactly one sentence with no presentation as to the facts considered by the 3 rd DCA in its decision - and as such, the ICA cannot respond in this regard. 3
4 of Florida consumers by broadening this Court s understanding of the issues at hand from an administrative, historic and public policy perspective. Just because the ICA supports the OIR in its legal argument does not in and of itself bar an amicus filing, nor does the filed brief rise to the level of State Farm s claim that the arguments made mirror that of OIR. In Ciba-Giegy Ltd. BASF A.G. v. Fish Peddler, Inc., 683 So. 2d 522, 532, the 4 th District Court rejected an amicus brief that mirrored fact-specific argument of a filed fifty (50) page brief. The ICA has made no such filing; instead, the ICA focused on the unique consumer implications of allowing QUASR data to be considered trade secret and advising this Court on the broader implications that this decision will make on the state government s authority to regulate the business of insurance in the best interest of the consumers. The ICA addresses the negative impact to Florida consumers face as a result of State Farm s position that the information required by (10), Florida Statutes, is trade secret and not available for public inspection. Brief at 8-9. The ICA advises that QUASR data is used by the insurance buying public to make sound insurance purchases. Brief at 8. The ICA additionally addresses the anticipated rise in insurance rates that will result if this Court upholds the trial court s order. Brief at 15. The ICA advises this Court on the negative consequences to legislative bodies abilities to balance the marketplace and other organizations efforts to study and develop catastrophe risk. Brief at The ICA also provides historic background on the ebb and flow of State Farm in the 4
5 Florida marketplace and how its recent re-entry will impact the ability for regulators and the public to effectively understand marketplace rates and trends. Brief at 15. None of these consumer-focused perspectives are addressed by OIR in its Initial Brief. The ICA would assert that these issues are crucial to bring to this Court s attention when overlaying the parties legal argument at issue in the case and solely within this Court s discretion to consider. 5. The ICA informs and provides perspective on insurance related matters to the members of the Florida Cabinet, members of the Florida Legislature and Florida courts. The ICA was previously admitted as amicus curiae in a similar matter before this Court to advise on policy considerations of an insurance issue that impacted Florida consumers. See Thrivent Financial for Lutherans v. Department of Financial Services, 145 So. 3d 178 (Fla. 1 st DCA 2014). In Thrivent, the ICA was permitted as amicus curiae over objection in order to weigh in on an insurance issue on behalf of the insurance buying public. Similarly, the ICA addressed this Court in support of the Department of Financial Services in litigation with an insurance company who sought to challenge unclaimed property laws and retain unclaimed death benefits from life insurance policies. Similarly, the ICA represented the interest of consumers in advising this Court of the broader public policy implications of the trial court s decision. As is the case here, the ICA represents the interest of the insurance buying public and is uniquely positioned to speak to the consumer harm that will result from upholding the trial court s 5
6 decision. The ICA hopes that this perspective, which is not summarily addressed in the Appellant s Initial Brief, can aid the Court in considering the legal arguments at issue. 6. For all the foregoing reasons, the Office of the Florida Insurance Consumer Advocate respectfully requests that this Court grant the ICA s Motion and permit its filing of the amicus curiae brief on the merits in support of Appellant in this matter. Respectfully submitted, /s/ C. SHA RON JAMES Insurance Consumer Advocate Office of the Insurance Consumer Advocate Florida Department of Financial Services Claude Denson Pepper Bldg, Ste East Gaines Street Tallahassee FL FL Bar # Phone: Sha Ron.James@myfloridacfo.com /s/ JENNIFER M. FERRIS Chief Counsel Office of the Insurance Consumer Advocate Florida Department of Financial Services Claude Denson Pepper Bldg, Ste East Gaines Street Tallahassee FL FL Bar # Phone: Jennifer.Ferris@myfloridacfo.com 6
7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served electronically on September 15, 2016, to: Elenita Gomez, Esq. Elenita.Gomez@floir.com Shaw P. Stiller, Esq. Shaw.Stiller@floir.com 612 Larson Building Tallahassee, Florida ATTORNEYS FOR APPELLANT Karen D. Walker, Esq. Karen.walker@hklaw.com Tiffany A. Roddenberry, Esq. Tiffany.roddenberry@hklaw.com Holland and Knight 315 South Calhoun Street, Suite 600 Tallahassee, Florida ATTORNEYS FOR APPELLEE Andrea Flynn Morgenson, Esq. amogensen@sunshinelitigation.com 200 South Washington Blvd., Suite 7 Sarasota, Florida _/s/ JENNIFER M. FERRIS Florida Bar No
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