Whether an Insurance Broker Was the Insurer’s Agent Was an Issue of Fact

Frank Gay Plumbing, Inc. v. Ass’n Cas. Ins. Co., et al. (Fla. 5th DCA 2012)

An individual (“Gay”) operating a vehicle owned by his company was in an automobile accident with an at-fault underinsured motorist. After the accident, the tortfeasor’s carrier, GEICO, provided Gay with a settlement check and a release of all claims. Before cashing the check or signing the release, Gay contacted his insurance broker who advised Gay that he could cash the check but should not sign the release. For whatever reason, Gay ignored the advice and cashed the check and signed the release.

Gay then made an underinsured motorist claim to his company’s insurer, who denied coverage on the bases that Gay had violated the policy conditions by settling and failing to give timely notice of the claim. Gay instigated a declaratory action and the parties filed cross-motions for summary judgment.

The trial court ruled in the insurer’s favor, finding that Gay failed to comply with the express terms of the policy since notice to the insurance broker was not notice to the insurer. Because Florida law holds that notice to one’s agent is notice to the principal, the focus of the appeal was whether the broker was simply an insurance broker or was instead an agent or apparent agent for the insurer.

The fifth district explained that the evidence was conflicting on the issue since, on the one hand, there was evidence that the broker was not permitted to use the insurer’s name or logo in advertising, but, on the other hand, was permitted to collect premiums and receive, accept, and bind parties to certain proposals for contracts of insurance with the insurer. In addition to the agency issue, there was also a material issue of fact as to whether or not the insurer was in some way prejudiced by the settlement with GEICO. For these reasons, the court reversed and remanded.

Bill Frisbie, Yankee Trailer Court, LLC v. Carolina Cas. Ins. Co. (Fla. 5th DCA 2012)

A client who sued his law firm for malpractice and then intervened in a declaratory judgment action between the firm and its insurer appeals from a final judgment allowing the insurer to rescind the insurance policy for material misrepresentations on the policy renewal application.

In a very short opinion, the fifth district reversed and remanded for further proceedings, explaining “genuine issues of fact existed as to whether waiver or estoppel barred rescission [since] record evidence exists from which a jury could conclude that shortly after the client sued the firm in February, 2006, the insurer was made aware of the facts it now claims justify rescission, but it did not assert rescission until November 2007.”