10 Fla. L. Weekly Supp. 819a
Insurance — Marine — Declaratory judgment action asking court to rule that policy of marine insurance covered sinking of commercial fishing vessel — Motion for partial summary judgment claiming that two marine insurance brokers named along with insurance underwriters as defendants acted as agents for insured is denied where, although as general principle insurance broker is agent of insured, in this case it is unsettled and indistinct that wholesale broker acted as an insurance broker, and there appears to be complex relationship between brokers and insurance underwriter
HOWARD LURIE, Plaintiff, v. CERTAIN UNDERWRITERS AT LLOYDS, SYNDICATE NO: 1236, Subscribing to POLICY NUMBER: 98/08035 J.B. WILLIAMS & COMPANY INSURANCE UNDERWRITERS, INC., and CANOVA MARINE INSURANCE, INC., Defendants. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 99-01087 (9). July 24, 2003. Robert Lance Andrews, Judge.
[Prior order at 10 Fla. L. Weekly Supp. 178b.]
ORDER
THIS CAUSE comes before the Court on Defendants’ Motion for Partial Summary Judgment. The Court having heard arguments of counsel, and otherwise being duly advised in the premises, finds and decides as follows:
In August of 1998, Plaintiff, Howard Lurie, was a real estate salesman who decided to go into the commercial fishing business. Lurie did not have previous experience in this type of business, but was acquainted with a commercial fishing boat captain named Kenneth Cartwright with whom Lurie decided to start this business. Lurie then traveled to Texas with Cartwright where Lurie bought the vessel contingent on his being able to obtain marine insurance coverage. To obtain insurance coverage, Lurie called Berg-Williams, Inc. Lurie’s yacht was insured through Berg-Williams. The president of Berg-Williams was Joel Berg, who was also the president of another company named J.B. Williams (JBW) located in the same office. When Lurie called Berg-Williams, he spoke to Donna Smith about getting insurance for his new vessel. Berg-Williams only insures pleasure vessels, so Lurie was referred to Berg at JBW. JBW is a wholesale broker. JBW primarily assists other insurance brokers and agents in obtaining coverage for their clients. JBW was able to seek marine insurance for both pleasure vessels as well as commercial vessels.
Berg informed Mr. Lurie that he was a wholesale broker and did not act as a retail agent when it came to commercial marine insurance but since Lurie was in a hurry to close the deal, Berg agreed to obtain a quote for coverage. At this point, Berg asked Lurie some questions to fill out an application that Berg had obtained from the Defendants. Defendants, Lloyd’s London (Lloyd’s), were the underwriters and bound by marine insurance policies issued through authority granted to North American Shipowners Insurance Services (USA), Inc. (NASIS). NASIS offered Hull & Machinery Protection and Indemnity insurance on commercial fishing vessels. NASIS’s business relies on marine insurance brokers. These brokers submit client application forms for coverage on their vessels. JBW was one such broker.
Berg filled out this application with information Lurie furnished by telephone, and faxed it to NASIS on August 12, 1998. Based on the information contained in JBW’s fax, NASIS responded the same day with a fax with a quote as well as pointing out that there may be a problem with underinsuring the vessel. Upon receiving this quote, Berg explained to Lurie that JBW was only a wholesaler and could not sell him the insurance. Hence, Berg referred Lurie to Jane Steen of Canova Marine Insurance (Canova), a retail broker with whom JBW had done business previously. Lurie then contacted Steen. Berg then faxed Steen the information he previously obtained from Lurie to pass the matter on to Steen. Berg also faxed to NASIS one page he received from Steen asking for a revision in the NASIS quote because of the under-insurance problem.
On August 13, 1998, NASIS responded with another quote to which JBW responded asking that coverage be bound according to their quote from that day. NASIS then faxed its binder indicating confirmation of marine insurance. Ms. Steen completed another set of applications with the information she obtained from JBW and sent the applications to Mr. Lurie, which listed Mr. Lurie as the skipper. Mr. Lurie signed the applications and returned them to Canova. Ms. Steen also filled out the application for Hull & Machinery coverage as well as Protection & Indemnity coverage, both of which were signed by Mr. Lurie. The policy itself was mailed subsequently to JBW by NASIS, and receipt was acknowledged in a fax on August 21, 1998, which also requested an extension of navigational limits. The vessel sank en route to Florida from Texas on September 7, 1998.
Plaintiff commenced a declaratory judgment action asking this court to rule Defendant’s policy of marine insurance covered the sinking of his commercial fishing vessel. Defendants moved for summary judgment. The moving Defendants, Lloyd’s Underwriters, asked this court to rule, as a matter of law, that their policy of marine insurance is void, and, accordingly, offers no coverage for the sunken vessel. This initial motion for summary judgment was denied; this Court denied Defendants’ subsequent motion for a rehearing. Now, Defendants seek partial summary judgment claiming the two marine insurance brokers (Mr. Berg of JBW and Ms. Steen of Canova) acted as agents for the Plaintiff.
Defendants’ motion for summary judgment is denied. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. Pro. 1.510(c). The party moving for summary judgment has the burden of showing absence of a genuine issue of material fact, and the burden is not shifted to the non-moving party until the moving party has successfully met this burden. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). All inferences must be drawn from the proof in favor of the non-moving party. Liberty Mutual Insurance Co. v. Stuckey, 220 So. 2d 421 (Fla. 4th DCA 1969). Unless the material facts are crystallized so that nothing remains except questions of law, summary judgment should not be granted. Moore v. Morris, 475 So. 2d 666 (Fla. 1985). If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it. Id.
In the instant case, Defendants fail to show the absence of genuine issue of material fact respecting allegations that Berg of JBW and Steen of Canova acted as agents of Plaintiff, Lurie. In essence, Defendants claim summary judgment is appropriate, here, because there are no material facts at issue and since there are no material facts at issue, summary judgment should be granted. This is circular reasoning, and unavailing. While it is true as a general principle that an insurance broker is an agent of the insured, Almerico v. RLI Insurance Company, 716 So. 2d 774 (Fla. 1998), in the case at bar it is unsettled and indistinct that Berg, who is a wholesale broker, acted as an insurance broker. Almerico, 716 So. 2d at 776.
First, Berg alleges he does not solicit business from the general public. He sought to obtain a quote for Lurie as an exception. Berg also alleges he informed Lurie of his position as a wholesale broker, not a retail agent, and he will not be able to sell him insurance. Once he obtained a quote Berg referred Lurie to Steen, who would be able to sell him insurance. Second, Berg was given special application forms by NASIS and was expected to produce a certain amount of business to retain special access to the NASIS programs. Under these circumstances, as in Almerico supra, there appears to be complex relationships between JBW, Canova and NASIS. Indeed, these material disputes militate against finding the necessary crystallization of facts on the issue of agency.
Accordingly, it is
ORDERED and ADJUDGED Defendants’ CERTAIN UNDERWRITERS AT LLOYDS Motion for Partial Summary Judgment hereby is DENIED.
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