14 Fla. L. Weekly Supp. 1142a

Insurance — Personal injury protection — Coverage — Insured who submitted affidavits and exhibits that demonstrated she was entitled to coverage as matter of law for an accident that occurred after binder had been issued by broker for her new vehicle, which was added to existing policy, is entitled to summary judgment — Affidavit submitted by insurer’s underwriter indicating that insured did not have coverage at time of accident because insurer did not issue policy on vehicle until after accident did not create genuine issue of fact, because it did not address temporary binding effected by insurer — Insurer bound insured’s policy in compliance with governing statute, record supports contention that broker was actual agent of insurer, and even if record did not establish actual agency, apparent agency was established

CECILIA SANCHEZ, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 07-8838 SP 05 (06). September 11, 2007. Bronwyn C. Miller, Judge. Counsel: Michael Feldman. John Gioannetti.

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT REGARDING COVERAGE

THIS CAUSE, having come before the Court on September 5, 2007, September 7, 2007, and September 11, 2007 upon Plaintiff’s Motion for Summary Judgment Regarding Coverage and the Court having heard argument of counsel, reviewed the procedural history and relevant legal authority, and having otherwise been fully advised in the premises the Court hereby GRANTS Plaintiff’s Motion for Summary Judgment Regarding Coverage on the following grounds:

Relevant Facts:

Plaintiff, Cecilia Sanchez (hereinafter “Plaintiff”), and her spouse, Genaro Rodriguez Hernandez, purchased an automobile insurance policy from Defendant, UNITED AUTOMOBILE INSURANCE COMPANY (hereinafter “UNITED”) in through TAMMY INSURANCE II, located at 1931 West 68 Street, Hialeah, Florida. In April, 2006, they made changes to the policy at TAMMY INSURANCE II. At all times, TAMMY INSURANCE II was reflected on Plaintiff’s policy applications as “agent.” See Affidavit of Genaro Hernandez and accompanying exhibits.

On January 5, 2007, Hernandez traveled to TAMMY INSURANCE II and requested the addition of a 1995 Lincoln Town Car to the policy of insurance. Id. TAMMY INSURANCE II provided Hernandez with an application for insurance and issued a binder number for the insurance, with an effective date of January 5, 2007. Id. and Insurance Application. The binder number provided was 7722588 and the application for insurance set forth the following: “This application is in compliance with Section 626.752, F.S. A copy has been furnished to the applicant or insured and coverage is bound.” The application form required the agent to affirmatively check “bound,” as “not bound” was another option. It further indicated: “bound effective: date: 01/05/2007, time: 12:01 a.m.” Finally, it set forth: “This binder is issued for less than 60 days pursuant to Section 627.420 F.S. and is subject to a 5-day period of cancellation.”

Elsewhere, the application reads: “The brokering agent has no authority to Bind the Company without first obtaining confirmation from the Company through a TELEPHONE, FAX OR INTERNET BINDER and receiving a corresponding BINDER NUMBER.”

Finally, the Endorsement Request Form indicates: “Bound (date) 1/5/07.” After the temporary binder was issued at TAMMY INSURANCE II, UNITED generated its own policy number with an effective date of January 10, 2007. The identical binder number appears at the bottom of the final page of UNITED’s policy and the agent is identified as “TAMMY INSURANCE II.”

Plaintiff and her spouse were involved in an automobile accident on January 6, 2007. Plaintiff sought reimbursement from UNITED for medical services rendered. UNITED failed to pay Plaintiff and Plaintiff filed suit.

Plaintiff has moved for summary judgment on UNITED’s affirmative defense of coverage.

Summary Judgment Standard:

Summary judgment may only be granted 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. P. 1.510(c); Moore v. Moore, 475 So. 2d 666 (Fla. 1984). In Romero v. All Claims Ins. Repairs, 698 So. 2d 605, 606 (Fla. 3d DCA 1997), four principles were laid out for consideration when conducting a summary judgment analysis:

First, summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Second, the burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.

Third, the trial court must draw every possible inference in favor of the party against whom summary judgment is sought.

Fourth, if the evidence raises any issues of material fact, or if it is conflicting, or if it will permit different reasonable inferences, or if it tends to prove the issues, summary judgment can not be granted.

A summary judgment should not be granted unless the facts are “so crystallized that nothing remains but questions of law.” Moore, 475 So. 2d at 668.

Plaintiff has submitted affidavits and exhibits which demonstrate she is entitled to coverage as a matter of law. UNITED has submitted an affidavit from its underwriter, JORGE DE LA O. MR. DE LA O indicates that Plaintiff did not have coverage at the time of the accident, as UNITED did not issue a policy number until January 10, 2007. MR. DE LA O’s affidavit does not create a genuine issue of material fact, as he fails to address the temporary binding effected by UNITED.¹

Contract Construction and Exclusion:

The general rule of contract construction is that if the language is plain and ambiguous, there is no reason to construe the contract. Rigel v. National Casualty Company, 76 So. 2d 285 (Fla. 1954). If the Court must construe an insurance contract, the Court should construe the insurance contract to give effect to the intent of the parties. Id. The contract in the case sub judice is clear and unambiguous. UNITED bound the policy through TAMMY INSURANCE II on January 5, 2007.

Temporary Binding Pursuant to Florida Law:

Section 627.72951 Florida Statutes, effective October 1, 1997, governs the practice of temporary binding. It provides: “Temporary binding permitted. — Notwithstanding any other provision of law, an insurer may temporarily bind coverage on a vehicle for a period not to exceed three business days without first collecting a premium, if the policyholder has coverage on another vehicle with the same insurer or insurer group.”

In the case sub judice, Plaintiff sought to add her 1995 Lincoln Town Car to her existing policy of insurance on January 5, 2007. Wednesday, January 10, 2007, the effective date of the new policy of insurance issued by UNITED, was exactly three business days after Friday, January 5, 2007. Plaintiff’s premium financing agreement did not require payment until January 10, 2007. Thus, UNITED bound Plaintiff’s insurance in compliance with Section 627.72951 Florida Statutes. The date UNITED issued its policy number does not undermine the legality of temporary binding in accord with Florida law.

Actual Agency:

UNITED contends that a genuine issue of material fact exists as to whether or not TAMMY INSURANCE II acted as an agent of UNITED or a broker of the insured. Plaintiff has established TAMMY INSURANCE II acted as an agent of the insurer. UNITED has submitted nothing in opposition. Furthermore, the Court notes, as a preliminary matter, there is nothing in the record to contradict the assertion that UNITED directly bound the insured, utilizing TAMMY INSURANCE II merely for the purpose of drafting the relevant forms. Thus, the record supports the contention that TAMMY INSURANCE II was an “actual agent” of UNITED.

However, even assuming there was record evidence supporting UNITED’s contention, “. . . it is equally well settled that the insurance broker may act in the dual capacity of broker for the insured and agent.” Almerico v. RLI Ins. Co., 716 So. 2d 774 (Fla. 1998); see also, Auto-Owners Ins. Co. v. Yates, 368 So. 2d 634 (Fla. 2d DCA 1979). Further, the courts have held that an independent insurance broker is an agent of the insurer when the broker has the authority to bind coverage for the insurer. Gonzalez v. Great Oaks Casualty Ins. Co., 574 So. 2d 1182 (Fla. 3d DCA 1991). Finally, the law recognizes “apparent” agency. Apparent agency is established by: “first, whether there was a representation by the principal; second, whether a third party relied on that representation; and, finally, whether the third party changed position in reliance upon the representation and suffered detriment.” Almerico v. RLI, 716 So. 2d at 777.

In the case at bar, Plaintiff has established that her policy of insurance reflected TAMMY INSURANCE II as UNITED’s “agent,” TAMMY INSURANCE II assured her that the 1995 Lincoln Town Car had been added to the policy of insurance. Plaintiff attempted to drive the Town Car on a family trip, as a result, she was subsequently injured in an accident, and UNITED refused to reimburse her for medical treatment. Thus, Plaintiff has established apparent agency, in addition to actual agency.

Finally, it should be noted that the Personal Injury Protection section of the policy issued to the insured long before this automobile accident extends coverage to the insured while occupying an “insured motor vehicle.” Policy at 13. It defines an “insured motor vehicle” as follows: “[it] means a ‘motor vehicle’: (a) of which the named insured is the owner; and (b) with respect to which security is required to be maintained under Florida Motor Vehicle No-Fault Law; and (c) for which a premium is charged . . .” Policy at 1. It exempts “the named insured . . . while occupying a motor vehicle of which the named insured is the owner and which is not an insured motor vehicle under this insurance.” Policy at 13. Clearly, the 1995 Lincoln Town Car qualifies as an “insured motor vehicle,” as Plaintiff’s spouse completed all financing documents at the time the motor vehicle was added.

Conclusion:

WHEREFORE, Plaintiff’s Motion for Final Summary Judgment Regarding Coverage is hereby GRANTED.

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¹Plaintiff contends the affidavit was not timely served upon her. However, the affidavit fails to address the temporary binding issue, thus, it is does not impact the outcome of the summary judgment motion.