final until disposition of timely filed motion for rehearing.
Petition for writ of certiorari to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Michael A.
Robinson, Judge; L.T. Case No. CACE14-016648(13).
Stephen W. Bazinsky and Catherine Galvis of Bazinsky, Korman
& Baker, P.A., Plantation, for petitioner.
H. Zebersky of Zebersky & Payne, LLP, Fort Lauderdale,
Candise L. Shanbron of Cernitz & Shanbron, P.A., Coral
Gables, Bard D. Rockenbach and Jeffrey V. Mansell of
Burlington & Rockenbach, P.A., West Palm Beach, for
Trust MGA, LLC (PTMGA) seeks certiorari review of an order
compelling discovery. In its petition PTMGA argues that the
circuit court lacks jurisdiction over the underlying case
because plaintiff failed to exhaust administrative remedies.
We agree and grant the petition.
Josef Pesta filed a class action suit against his insurer,
and its managing general agent, PTMGA, alleging that his
premium improperly included a twenty-five dollar per policy
fee for PTMGA. He contended that fee should not have been
included because PTMGA did not place the policy with the
insurer and was not acting as a legitimate managing general
agent. The insurer moved to dismiss the complaint for failing
to exhaust an available administrative remedy with the
Florida Office of Insurance Regulation (OIR). The trial court
denied the motion. The insurer petitioned for certiorari
review, and this court granted the petition. People's
Trust Ins. Co. v. Pesta, 199 So.3d 970 (Fla. 4th DCA
2016) (Pesta I). We explained that section 627.371,
Florida Statutes (2011), provides an administrative remedy
for any person aggrieved by a rate charged or a rating plan,
and the MGA fee is part of the insurer's "rate
filing" that must be approved by OIR. 199 So.3d at 971.
We concluded: "Whether an MGA fee can be charged for
each policy, regardless of whether the insurer's MGA
actually placed the policy with the insurer, is a regulatory
issue that the agency should resolve." Id.
Pesta filed a second amended complaint against PTMGA (the
insurer's agent) requesting relief in the form of a class
action against only PTMGA. However, the claims were
essentially the same as against the insurer in that it sought
a declaratory judgment and damages, contending that the
inclusion of the MGA fee on each policy violated the law. It
alleged that PTMGA is not a managing general agent for
purposes of the insurance policy, and the insurance company
or MGA is not entitled to charge or collect for the fees.
filed a petition for certiorari as to the second amended
complaint, alleging that our prior opinion controlled. We
denied certiorari relief, but our denial was not a
determination on the merits and therefore did not prevent the
issue from being raised in further proceedings. See Topps
v. State, 865 So.2d 1253 (Fla. 2004).
our denial, discovery ensued. It shows that the issues which
Pesta is attempting to litigate are within the purview of the
OIR and its rate approval. PTMGA then filed this certiorari
petition contending both that the court lacked jurisdiction,
because of the failure to exhaust administrative remedies,
and that the discovery was improper.
was not clear when the second amended complaint was filed, it
is clear now that Pesta is simply seeking to do an
"end-run" around our prior opinion which held that
the MGA fee on the policy must first be presented to the OIR,
which the legislature has charged with responsibility to
supervise insurance rate-setting. See § 20.121,
Fla. Stat. (2014). The courts must not usurp the
administrative responsibilities of that entity. See Fla.
Dep't of Ins. & Treasurer v. Bankers Ins. Co.,
694 So.2d 70, 71 (Fla. 1st DCA 1997).
stated that failure to exhaust administrative remedies goes
to the trial court's subject matter jurisdiction to hear
a matter. See Dist. Bd. of Trustees of Broward Cmty.
Coll. v. Caldwell, 959 So.2d 767, 771 (Fla. 4th DCA
2007). Other courts have agreed. See BJ's Wholesale
Club, Inc. v. Bugliaro, 273 So.3d 1119 (Fla. 3d DCA
2019); Artz ex rel. Artz v. City of Tampa, 102 So.3d
747, 749 (Fla. 2d DCA 2012) (treating exhaustion of
administrative remedies as a question of subject matter
jurisdiction). Still other courts consider it a
"court-created prudential doctrine," not one of
jurisdiction. See State Dep't. of Envtl. Prot. v. PZ
Constr. Co., Inc., 633 So.2d 76, 78 (Fla. 3d DCA 1994).
If it is subject matter jurisdiction, then the trial court is
without power to proceed. If it is a prudential doctrine,
then the trial court departs from the essential requirements
of law in proceeding with the determination of issues that
the legislature expressly authorized the administrative
agency to decide. See e.g. Pesta I.
case involves the propriety of what is included in the
insurance company's rate charges, it is for the OIR to
determine in the first instance, as we expressly stated in
Pesta I. We therefore grant the petition and direct