13 Fla. L. Weekly Supp. 880a
Insurance — Automobile — Application — Misrepresentations — Where person who processed high risk automobile insurance application on which insured made material misrepresentation that she was gainfully employed and bound policy was an independent broker acting on behalf of insured, not insurance agent acting on behalf of insurer, insurer is entitled to final summary judgment
ANGELINA JOHNS, Plaintiff, v. MERCURY INSURANCE GROUP OF FLORIDA, Defendant. Circuit Court, 13th Judicial Circuit in and for Hillsborough County, Civil Action. Case No. 04-01003, Division C. June 12, 2006. John M. Gilbert, Senior Judge. Counsel: Angelina Johns, Pro se. Paul A. Bernardini, Jr.
ORDER GRANTING FINAL SUMMARY JUDGMENT
THIS MATTER coming before the Court on 6th day of June 2006, on Defendants’ Motion for Final Summary Judgment, and the Court having heard argument of counsel, being otherwise fully advised in the premises, the court makes the following findings of fact and conclusions of law:
This case involves a petition for declaratory relief against Mercury Insurance, the plaintiff’s automobile insurance carrier. Plaintiff had driven her BMW automobile into a saltwater ditch and the car was declared a total loss. Defendant had insured the BMW but denied coverage on the grounds that the plaintiff had misrepresented her status as being gainfully employed at the time of the policy application. This particular high-risk line of insurance required that applicants be employed.
Previously, this Court had granted Partial Summary Judgment in favor of the defendant, finding that a material misrepresentation was made and same was material to the risk as defined in F.S. 627.409. The court, however, found that further discovery needed to be developed in order to determine if the person who solicited the application and bound the policy was an independent broker acting on behalf of the plaintiff or an insurance agent acting on behalf of defendant. If the latter were the case, the defendant would not be entitled to summary judgment if the agent knew of the material misrepresentation and wrongfully processed same. Under the doctrine of apparent agency, such knowledge on the part of the broker could be imputed to the Defendant if three elements are established. See generally, Almerico v. RLI, 716 So.2d 774 (Fla. 1998).
An insurance broker is one who acts as middleman between the insured and the insurer, and who solicits insurance from the public under no employment from any special company, and who, upon securing an order, places it with a company selected by the insured, or, in the absence of such a selection, with a company selected by himself; whereas an “insurance agent” is one who represents an insurer under employment by it. Whether a person acts asbroker or agent is not determined by what he is called but is to be determined from what he does. In other words, his acts determine whether he is an agent or a broker. 3 Couch on Insurance 3d, section 45:1 (1960); see, RLI Ins. Co. v. Collado, 678 So.2d 1313, (2 DCA 1996).
The record evidence has proven that the person who processed the insurance application and bound the policy was an independent broker, acting on the capacity of the plaintiff. She had authority to bind different insurance carriers. The plaintiff, in essence, chose the defendant insurance company through her responses. Had the plaintiff been truthful about her unemployment status, the broker would have written a policy with another insurance company.
Because the plaintiff had committed a misrepresentation under F.S. 627.409 to an independent broker, the defendant is entitled to Final Summary Judgment as a matter of law.
ORDERED AND ADJUDGED that the defendant’s Motion for Final Summary Judgment is GRANTED.
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