Lawyer: Florida missing out on millions by ignoring bail bond law
03/14/2013 6:16 PM
03/14/2013 6:17 PM
Could Florida be missing out on millions of dollars in revenue?
Pensacola trial lawyer Robert Kerrigan says state and local officials have long ignored a law that requires bond agents and surety companies to lose their licenses when they fail to pay up after defendants skip town.
As a result, the state’s court system has failed to collect judgments totaling millions of dollars, Kerrigan contends. He represents a Pensacola bondsman who claims the failure of clerks and courts to uphold the law damages competitors who comply with it.
After three years of discussion and sometimes heated exchanges between state officials and Kerrigan, Chief Financial Officer Jeff Atwater has ordered an audit to determine whether circuit clerks are correctly handling bond forfeitures. Atwater’s staff has audited one county, Leon, and plans to conduct similar audits in six others.
The dispute has lasted more than three years, beginning when Alex Sink was the state’s chief financial officer. Kerrigan says both officials failed to comply with state law and have allowed bail bond insurance companies to skate.
“Virtually all the statutory and regulatory control over this industry does not exist in Florida,’’ Kerrigan said recently. “The few honest bondsmen and the few responsible insurance companies that adhere to the law are the exception, not the rule.’’
Kerrigan said the system surrounding bail bonds is “dysfunctional by design.’’
When defendants don’t show up, there is no consequence to the bail bondsman or his insurance company. They have no incentive to try and find the defendant, Kerrigan said.
During the three years Kerrigan has been fighting on behalf of a whistleblower client, the state agency that supervises bonds destroyed more than 150 boxes of judgments, leaving the state without any ability to determine how much money was not collected.
In 2009, Kerrigan filed a lawsuit in Escambia County on behalf of two bail bondsmen, alleging that five insurance companies were not paying bail bond judgments.
State law requires clerks to send copies of unpaid judgments to the state Office of Insurance Regulation if the judgment is not paid within 60 days. The state is supposed to compel payment or suspend the license of the insurance company that underwrites bonds.
In January 2010, Kerrigan sought copies of judgments on file with insurance regulators.
At first officials advised him that there were more than 8,500 documents filling several drawers. Then officials said there were about 3,500 documents.
By April that year, officials at the state agency said they no longer had the documents because they had been erroneously shredded.
Kerrigan reported the destruction of the public records to Ben Diamond, a lawyer who was general counsel for then-CFO Alex Sink. Diamond asked the agency’s Inspector General to investigate. In the end the shredding was blamed on Terry Jennings, a clerk assigned to move boxes of records to storage.
Ray Wenger, longtime head of the division that handles bail bonds, told investigators that Jennings mishandled boxes of documents that should have been stored.
An Inspector General’s investigation found Wenger was negligent when he failed to exercise due care and diligence in performance of his duties. He was suspended for one day.
In the midst of Kerrigan’s battle to get the records, Sink sent a letter to the state’s 67 Circuit Clerks suggesting she needed help from the clerks to be sure Florida was collecting unpaid judgments from bondsmen.
“Working together we can ensure that all unpaid forfeitures are satisfied for the benefit of all Floridians,’’ Sink wrote.
Still, the problem continued, Kerrigan says. The insurance companies that failed to pay judgments were allowed to continue writing bonds.
Kerrigan has been on a crusade attempting to find someone who will crack down on the bondsmen who don’t pay judgments. In the past year he’s met with representatives of Gov. Rick Scott, Sink, Atwater, the Florida Senate and others in an attempt to get someone interested in the problem.
After Atwater ordered some audits, Leon County Circuit Clerk Bob Inzer volunteered his operation for review. A preliminary audit released to the Tampa Bay Times found no loss of state revenue but did identify a number of instances where the clerk failed to immediately take action against the bonding company.
Inzer said court rules provide an additional five days to act and some delays are encountered because of staff shortages and other budget constraints. Statewide budget cuts of as much as 25 percent have forced clerks to give priority to criminal cases.
Alexis Lambert, spokeswoman for Atwater, said the agency has created a process for tracking bail bond judgments received from court clerks and will seek proof of payment from surety companies in cases where they have been unable to determine whether a judgment was paid.
Since installing the rules the state has formally disciplined two of 11 agents who failed to satisfy judgments on time, Lambert said. The agents have been ordered to pay $25,794 in restitution and fines totaling $4,500. She noted that the agency only has jurisdiction over the agents, not the insurance companies.
Tampa Bay Times researcher Caryn Baird contributed to this report.
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