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Sunshine Law invoked in arguments over workers’ comp rate increase

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The public will suffer irreparable harm unless a state appeal court stays Florida’s 14.5 percent increase in workers’ compensation insurance premiums, attorneys challenging the increase said in court papers this week.

The National Council on Compensation Insurance, or NCCI, “cannot possibly demonstrate a likelihood of prevailing on appeal with respect to the trial court’s detailed, well-reasoned 73-page final judgment, which is founded upon fundamental open-government principles of Florida law,” plaintiffs attorney John Shubin argued.

Furthermore, NCCI, which proposes workers’ compensation insurance rates for the Florida Office of Insurance Regulation, “cannot possibly show that any irreparable harm would occur if the stay were not granted,” he continued.

“To the contrary, where (as here) open government violations have been established, the public — whose interest is furthered through the final judgment — is presumed to have suffered irreparable harm and the requested stay would permit such harm to continue,” Shubin wrote.

“The requested stay is entirely at odds with the public interest,” he added.

The attorney filed the pleading Thursday evening with the 1st District Court of Appeal. That court has already granted a stay of Leon County Circuit Judge Karen Geivers’ ruling on Nov. 23 that NCCI and the insurance office had violated Florida’s Sunshine Law in calculating the premium increase.

The question now is whether to lift or extend that stay.

The insurance office approved the rate hike effective on Dec. 1. Businesses would realize the increase as they buy new or renewed policies over the next 12 months.

NCCI and Insurance Commissioner David Altmaier both are defendants in the underlying lawsuit filed by Miami workers’ compensation attorney James Fee.

The arguments turned on a Rules of Appellate Procedure provision allowing automatic stays of any court order overturning an action taken by a public officer acting in his or her official capacity.

The rule allows stays of only 48 hours in public-records or open-meetings cases. Gievers concluded that, as a state-authorized rate-making organization, NCCI should have opened its internal deliberations and documents to the public.

Altmaier, in his own pleading Thursday, cited a presumption “that planning-level decisions are made in the public interest and should be accorded a commensurate degree of deference, and that any adverse consequences realized from proceeding under an erroneous (court) judgment harm the public generally.”

Altmaier’s brief, signed by assistant general counsel Shaw Stiller, argues that the case is not really about the Sunshine Law, but rather about the commissioner’s responsibilities under the Insurance Code.

Gievers overreached in concluding otherwise, it says.

In any event, the 48-hour limit is intended only to produce the quick production of official documents, or to compel public officials to meet in the open, Stiller wrote.

“There are no future meetings subject to court direction to be conducted in the sunshine. The 48-hour limitation should not be stretched to apply in these circumstances” he argued.

“NCCI estimates the impact of the order if not stayed to be a $7 million weekly increase of an existing unfunded liability of $1 billion, all flowing from the recent court actions which gave rise to the rate filing,” Stiller wrote.

He added: “NCCI correctly represents in its emergency motion that these funds cannot be recouped in the future with retroactive premiums and that, if collected now and ruled unlawful in the future, current premiums could be refunded.”

Michael Moline is a former assistant managing editor of The National Law Journal and managing editor of the San Francisco Daily Journal. Previously, he reported on politics and the courts in Tallahassee for United Press International. He is a graduate of Florida State University, where he served as editor of the Florida Flambeau. His family’s roots in Jackson County date back many generations.

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