Specially concurring.
I concur in the result in this case because I believe it is compelled by the supreme court’s decision in Florida Welding & Erection Service, Inc. v. American Mutual Insurance Co. of Boston, 285 So.2d 386 (Fla.1973). In Florida Welding, the supreme court noted that “[t]he matter of the actual application of this ... Tate data’ to arrive at the premium charged! ] appears to have an adequate basis for administrative review under ... s. 627.371.... ” Id. at 389. Here, NCM is challenging FCCI’s application of the “rate data” to arrive at the premium charged. Pursuant to Florida. Welding, this challenge should have first been raised administratively under section 627.371.
While it is true that section 627.371(1) provides that a party aggrieved by the rates charged “may file a written complaint” with the administrative agency, the supreme court has held that “[w]here an administrative remedy is provided by statute, relief must be sought by exhausting this remedy before the courts will act.” Id. at 390 (emphasis added); see also Odham v. Foremost Dairies, Inc., 128 So.2d 586, 593 (Fla.1961); Hennessy v. City of Fort Lauderdale, 101 So.2d 176, 178 (Fla. 2d DCA 1958). Thus, because this administrative remedy existed, NCM was required to exhaust that remedy before raising its claims in a judicial forum, which it did not do. Accordingly, under the binding authority of Florida Welding, the trial court departed from the essential requirements of the law by permitting the claims raised in NCM’s affirmative defenses to go forward.
But for Florida Welding, however, I would not be inclined to find that the trial court departed from the essential requirements of the law by failing to follow Píti-mas. Planeas is a federal district court case in which the affirmative defenses raised by the insured were factually and legally distinguishable from those raised by NCM in this case. Further, while Florida Welding was binding on the trial court, Planeas is not. Therefore, while I concur in the result, I find the majority’s reliance on Pítimas to find a departure from the essential requirements of the law inexpedient.