11 Fla. L. Weekly Supp. 397b
Insurance — Automobile — Coverage — Cancellation — Appeal from declaratory final judgment in favor of plaintiff on claim that insurer was estopped from denying coverage due to plaintiff’s nonpayment of balance of policy down payment for accident that occurred during period in which insurer’s agent had extended time for payment of balance — Cross-appeal of trial court’s denial of plaintiff’s motion for directed verdict on her breach of contract claim — Promissory estoppel — No error in denial of insurer’s motion for directed verdict on estoppel claim where due to agent’s assurances to plaintiff that she was insured, it would be injustice to allow insurer to deny that plaintiff was covered, and therefore, there was at least reasonable evidence for jury to apply promissory estoppel in plaintiff’s favor — Jury instructions — No error in denial of instruction stating that a party’s wrongful act cannot ordinarily serve as basis for estoppel claim against another where testimony and evidence do not justify requested instruction because plaintiff’s alleged wrongful act of failing to read receipt that indicated additional down payment was due was not intentional wrong — Even if failure to read receipt was wrongful act, agent’s subsequent written assurances to plaintiff that she was covered and would have additional time to pay balance seems to negate plaintiff’s wrongdoing — Attorney’s fees — No error in awarding attorney’s fees to plaintiff based on success on estoppel claim, despite rejection of plaintiff’s breach of contract claim, where statute does not require that prevailing insured have written contract with insurer to recover fees — Further, award of fees serves statutory purpose to make whole plaintiff who jury has determined never should have been forced to litigation — Breach of contract — Plaintiff was not entitled to directed verdict on breach of contract claim because it is illegal for insurer to issue coverage without having collected from insured amount equal to two months’ premium, and it is undisputed that insurer was not paid requisite amount
OCEAN HARBOUR CASUALTY INSURANCE COMPANY, Appellant, vs. PATRICIA GELTCH, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-479AP. L.C. Case No. 2001000491CC05. March 16, 2004. An appeal from the County Court for Miami-Dade County, Shelley J. Kravitz, Judge. Counsel: Hilda Klein, Conroy, Simberg, Ganon, Krevans & Abel, P.A., for Appellant. Bambi Blum, P.A., Stabinski & Funt, P.A., for Appellee.
(Before THOMAS M. CARNEY, STANFORD BLAKE and MANUEL A. CRESPO, JJ.)
(BLAKE, J.) The appellee, Patricia Geltch, sought auto insurance coverage from A-Able Agency, a company that offered low-cost auto insurance for as low as $59.00 down. On March 14, 2000, Geltch met with an A-Able representative who completed an application for auto insurance with the appellant, Ocean Harbour Casualty Insurance Company. A-Able was an authorized agent allowed to bind insurance for Ocean Harbour. Geltch’s application designated Ocean Harbour as the insurer, contained a binder number and had an effective date of March 14, 2002. Geltch paid $59.00 as a down payment and was given a receipt, that she admittedly did not read, indicating that she still owed a balance of $88.00 on the insurance down payment. Geltch left A-Able with an Ocean Harbour insurance card having an effective date of March 14, 2000. A-Able, however, never sent the completed application or any portion of the down payment to Ocean Harbour.
A few weeks later, A-Able sent Geltch a letter dated April 1, 2000 stating that Geltch’s insurance would be canceled unless A-Able received the balance of $88.00 due on Geltch’s down payment. Upon receipt of the letter, Geltch called A-Able and obtained an extension of time, up to April 20, 2000, to pay the $88.00 balance. Accordingly, on April 7, 2000, A-Able sent Geltch a letter confirming the April 20th payment deadline.
On April 8, 2000, Geltch was involved in an auto accident. When she contacted A-Able to report the crash, she was told she had no insurance. Three days later, on April 11, 2000, A-Able sent Geltch an insurance cancellation notice notwithstanding that the company had provided Geltch with an extension of time to pay the balance on her down payment.
Ocean Harbour, the company with whom Geltch thought she had secured insurance, refused to cover Geltch and her driver’s license was suspended. Geltch filed suit against Ocean Harbour for breach of contract and for declaratory relief that coverage existed; i.e., estoppel.
The jury found for Geltch on the estoppel claim. That is, it found that Ocean Harbour, through its agent, A-Able, represented to Geltch that insurance coverage was in force on April 8, 2000, and that Geltch relied on this representation to her detriment. The jury found for Ocean Harbour, however, on Geltch’s breach of contract claim. The trial court denied both parties’ motions for judgments notwithstanding the verdict, as well as Ocean Harbour’s motion for a new trial. The trial court also entered a declaratory final judgment finding that coverage existed and that a defense was owed to Geltch by Ocean Harbour. Lastly, the trial court awarded Geltch attorney’s fees pursuant to section 627.428, Florida Statutes.
Ocean Harbour now appeals the declaratory final judgment and attorney’s fee award. Additionally, Ocean Harbour appeals the trial court’s ruling denying its jury instruction regarding wrongful acts on Geltch’s behalf. Geltch cross-appeals the trial court’s ruling denying her motion for judgment as a matter of law on the breach of contract claim. For the reasons discussed in more depth later on in this opinion, there was no error in the lower court’s rulings or the jury’s verdicts and we affirm all of the decisions below.
I. Promissory Estoppel and Directed Verdict
The standard of review from an order denying a motion for directed verdict is the same test used by the trial court in initially ruling on the motion. Cecile Resort, Ltd. v. Hokanson, 729 So. 2d 446 (Fla. 5th DCA 1999). That is, “a motion for directed verdict should be granted where there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party.” Wright v. Ring Power Corp., 834 So. 2d 329, 330 (Fla. 5th DCA 2003).
Ocean Harbour’s primary argument as to why the court should have directed a verdict in its favor is that the estoppel doctrine may only be used in insurance coverage disputes to broaden the extent of insurance coverage, not create coverage where none previously existed. But this is not necessarily true. In Crown Life Ins. v. McBride, 517 So. 2d 660, 661-62 (Fla. 1987), the Florida Supreme Court stated that promissory estoppel can be used to create insurance under certain circumstances. Specifically, the McBride court held that the doctrine of promissory estoppel “applies where to refuse to enforce a promise, even though not supported by consideration, ‘would be virtually to sanction the perpetration of fraud or would result in other injustice.’ ” Id. at 662, citing Southeastern Sales and Serv. Co. v. T.T. Watson, Inc., 172 So. 2d 239, 241 (Fla. 2d DCA 1965).
Given the assurances by A-Able, Ocean Harbour’s agent, that Geltch was insured, it would seem an “injustice” to allow Ocean Harbour to deny that Geltch was covered. Accordingly, there was at least reasonable evidence for the jury to apply promissory estoppel in Geltch’s favor. Thus, Ocean Harbour is not entitled to a directed verdict on the estoppel claim since it has not met its burden of demonstrating that there existed no reasonable evidence upon which the jury could have legally returned a verdict for Geltch.
II Jury Instruction
The standard of review from order denying a party’s request for a jury instruction is an abuse of discretion standard. Barbour v. Brinker Fla., Inc., 801 So. 2d 953 (Fla. 5th DCA 2001). A party claiming that the failure to give a particular instruction was reversible error must demonstrate that: 1) the instruction accurately states the law; 2) the evidence and testimony in the case justify the instruction; and 3) the instruction was necessary to permit the jury to properly resolve all of the issues of the case. Hart v. Stern, 824 So. 2d 927 (Fla. 5th DCA 2002).
Ocean Harbour requested a jury instruction stating that “a party’s wrongful act cannot ordinarily serve as a basis of a claim for estoppel against another.” Ocean Harbour derives this instruction from a case entitled Opler v. Wynn, 402 So. 2d 1309 (Fla. 3d DCA 1981). In Opler, the parties entered into a contract for the sale of land in which the seller warranted that there was sufficient ingress and egress to the property. The wrongful act complained of in Opler was that the seller knew that the subject property was landlocked prior to conveying the property but did not inform the buyer.
Here, the purported wrongful act is that Geltch failed to read the receipt given to her by A-Able that indicated that she owed an additional $88.00 on her down payment. But this “wrongful act” is not analogous to the one complained of by the buyer in Opler. Unlike the Opler defendant, Geltch did nothing intentionally wrongful. As such, Ocean Harbour does not meet the second prong of the three part test described above which requires that the testimony and evidence in the instant case justify the requested jury instruction.
Even if Geltch’s failure to read the receipt could be categorized as a “wrongful act,” A-Able’s subsequent written assurances to Geltch that she was covered and that she could have additional time to pay the $88.00 balance seems to negate Geltch’s initial wrongdoing in not reading the down payment receipt. Thus, the trial court was correct in denying Ocean Harbour’s jury instruction and that portion of the lower court’s ruling is affirmed.
III Attorney’s Fees
The standard of review of an order determining an party’s entitlement to attorney’s fees is whether the trial court abused its discretion. Musselwhite v. Charboaneau, 840 So. 2d 1158 (Fla. 5th DCA 2003).
Florida Statute section 627.428 permits “any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer” to recover attorney’s fees when that insured prevails in litigation against an insurer. FLA. STAT. ANN. § 627.428 (2003). The jury in the instant case rejected Geltch’s breach of contract claim. As such, Ocean Harbour argues, Geltch is not the type of insured entitled to an attorney’s fee award under §627.428.
But the trial court was correct in awarding Geltch attorney’s fees under the statute. This is because the jury found in favor of Geltch on her promissory estoppel/oral contract theory. The fact that the breach of contract claim was resolved in Ocean Harbour’s favor is irrelevant since § 627.428 does not require that the prevailing insured have a written contract with the insurer in order to recover attorney’s fees.
Further, the purpose of the statute is to make the insured whole; i.e., to put the insured in the same position she would have been in if Ocean Harbour had paid her claim without litigation. Aksomitas v. Maharaj, 771 So. 2d 541 (Fla. 4th DCA 2000). It would be unjust to leave Geltch, an insured who a jury determined was entitled to a defense from Ocean Harbour, to pay her own legal fees when she never should have been forced to resort to litigation. Moreover, A-Able’s failure to properly complete Geltch’s insurance paperwork and collect the requisite down payment from Geltch should not insulate Ocean Harbour from its statutory duty to pay Geltch’s attorney’s fees. Because Geltch is the type of insured contemplated by the statute, she is entitled to the attorney’s fee award granted to her by the lower court.
IV Breach of Contract
As stated earlier in this opinion, “a motion for directed verdict should be granted where there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party.” Wright, 834 So. 2d at 330. Here, Geltch is not entitled to a directed verdict on her breach of contract claim.
It is undisputed that Ocean Harbour never received Geltch’s insurance payment. Thus, there is no way that Ocean Harbour could legally have had a written contract with Geltch because it is illegal for an insurance company to issue coverage without having collected from the insured an amount equal to two months’ premium. FLA. STAT. ANN. § 627.7295(7) (2003). Because it is undisputed that Ocean Harbour was not paid the requisite premium amount, there existed reasonable evidence upon which the jury relied when deciding in Ocean Harbour’s favor. As such, Geltch is not entitled to a directed verdict on her breach of contract claim, and the jury verdict in favor of Ocean Harbour was proper.
Neither the jury nor the trial court committed error in this case. Accordingly, we AFFIRM the verdicts and rulings below in their entirety. (CARNEY and CRESPO, JJ., concur.)
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