27 Fla. L. Weekly Supp. 383b
Online Reference: FLWSUPP 2704SMITInsurance — Personal injury protection — Application — Misrepresentations — Agency relationship between producer and insurer — Clear agency relationship between producer and insurer was established where PIP insurer provided blank applications, a manual, and underwriting guidelines to producer in order for him to sell insurance to insured; insurer accepted business from producer once producer and insured signed application for its insurance; producer was assigned producer code that appeared on insured’s application; and no limitations as to producer’s authority were announced to insured
CHARLIE MAE SMITH, Plaintiff, v. PEACHTREE CASUALTY INSURANCE COMPANY, Defendant. County Court (Small Claims), 4th Judicial Circuit in and for Duval County. Case Nos. 16-2016-SC-001225, 16-2016-SC-001226, & 16-2016-SC-001227, Division CC-G. June 14, 2019. Scott F. Mitchell, Judge. Ashley-Britt Hansen, for Plaintiff. Nikki Hawkins, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIALFINAL SUMMARY JUDGMENT REGARDING AGENCYDENYING DEFENDANT’S MOTION FORRECONSIDERATION/CLARIFICATION OF THE ORDERDATED JANUARY 25, 2018, AND DENYINGDEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came to be heard upon Plaintiff’s Motion for Partial Final Summary Judgment Regarding Agency, Defendant’s Motion for Reconsideration/Clarification of the Order Dated January 25, 2018, and Defendant’s Motion for Summary Judgment on May 7, 2019. The Court, having heard argument of the Parties,
ORDERED and ADJUDGED that:
1. This is a consolidated action for breach of contract for Defendant’s denial of No-Fault Benefits coverage to Plaintiffs Charlie Mae Smith, Stanley Jones and James Williams for the July 2015 motor vehicle accident in which Ms. Smith was driving and Mr. Jones and Mr. Williams were passengers in Ms. Smith’s insured vehicle. Defendant has declined No-Fault Benefits coverage for the consolidated Plaintiffs due to an alleged Material Misrepresentation as defined by F.S. §627.409 committed by Plaintiff Charlie Mae Smith, in her March 2013 application for insurance.
2. On March 8, 2013, Plaintiff appeared at Eastside Insurance Center in order to secure insurance on her 1999 Lincoln Continental. Plaintiff spoke with Defendant’s Agent William C. Brown (“Brown”) directly when applying for insurance. Brown entered information into Defendant’s portal in order to secure the insurance coverage.
3. Brown completed the application on Defendant’s online Producer Portal (“Portal”) in order to complete the data fields necessary for the application of insurance, prior to printing and obtaining a handwritten signature. Once the application was completed, Brown printed the application for Plaintiff’s signature.
4. Plaintiff provided her signature in each location the printed application required her signature. The paper application Plaintiff signed contained “Peachtree Casualty Insurance Company” on the top of the application, and at the bottom of each subsequent page. Brown also signed the application under the title “Producer’s Statement”. The Producer Statement does not indicate any limitations on the authority of Brown by Defendant.
5. At that time, Plaintiff also provided her bank information to Brown in order to have the monthly premiums withdrawn from her account. At the conclusion of the meeting, Defendant accepted the application and resulting business from Brown, and Brown received compensation pursuant to his Producer Agreement (“Agreement”) with Defendant.
6. Sometime after July 16, 2015, when Plaintiff was involved in the subject motor vehicle accident, she became aware that the monthly insurance payments were no longer being deducted from her bank account. Plaintiff, under the true belief that Brown was her agent for the purposes of her insurance policy with Defendant, contacted Brown (and not Defendant directly) to understand what she believed to be an error in withdrawals. For the first time, Brown notified Plaintiff that Defendant was no longer providing her insurance coverage.
7. Brown was provided access to Defendant’s online Portal in April 2012 when Brown began selling insurance for Defendant. The purpose of the Portal is to allow producers the ability to submit applications of insurance electronically to Defendant. Answers are provided to the questions generated on the Portal in order to complete the application for insurance that is then printed for the applicant to sign. The applications for insurance that are printed appear in the exact same way as the application appears on the Portal.
8. Defendant provided Brown with a manual that included the Underwriting Guidelines. Defendant also provided Brown with the Agreement, outlining the relationship between Brown/Defendant, and the parameters of the Agreement. Defendant also assigned to Brown its Producer Code 09000514. These items enable Defendant to accept money from Brown for its potential insureds once Brown submits an application.
9. The Agreement indicates that Brown is a “Producer” and that Brown shall not bind or otherwise submit applications to Defendant for quoting or binding if such business was produced by “independent producers”. Brown is not an Independent Producer/Agent because Brown is submitting the applications and not an independent producer.
10. The Agreement also indicates that Defendant has agreed to indemnify Brown against all claims arising from any dispute on the part of Defendant and its affiliates arising under the Agreement. Since the date of the inception of the Agreement in April 2012, Brown has submitted 956 applications for insurance for Defendant.
11. When Brown entered into the Agreement with Defendant, he was also provided contact information for Policy Services. Policy Services is a resource provided by Defendant for Brown. If the Portal is down or if Brown has any questions relating to any potential applicant then he is instructed to utilize this service. If a situation occurs in which the Defendant’s website is down and Policy Services cannot remedy the issue timely, Brown is unable to submit applications for potential customers of Defendant.
12. Brown began his longstanding and continuous relationship with Defendant more than seven (7) years ago, was provided applications and a manual in order to sell Defendant’s insurance, and Defendant accepted business from Brown. Brown is protected by Defendant per the Agreement and Brown is deterred from using independent producers/agents, verifying that he cannot be an independent producer/agent himself.
13. In Almerico v. RLI Ins. Co., the Florida Supreme Court looked at two (2) ways to analyze whether or not an agency relationship exists: 1) “evidence of indicia of agency may be demonstrated if the insurer furnishes an insurance agent or agency with any ‘blank forms, applications, stationery, or other supplies to be used in soliciting, negotiating, or effecting contracts of insurance”; and 2) the determination of the existence of apparent agency by a three-prong test, “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”. 716 So. 2d 774, 777 [(Fla. 1998), 23 Fla. L. Weekly S431a].
14. The Fifth District Court of Appeals encountered the same issue as Almerico and ruled that an agency relationship existed simply because the insurer provided a manual and blank applications to the agent, and “then accepted the business generated therefrom”. Straw v. Assoc. Doctors Health and Life, 728 So. 2d 354, 357 (Fla. 5th DCA 1999) [24 Fla. L. Weekly D744b].
15. In Almerico, the agent, Pliego, was provided applications for insurance to process on behalf of the insurer RLI, 716 So. 2d 774, 775. The Supreme Court also found it noteworthy to explain that Pliego was provided an agent number. That agent number appeared on the application next to RLI’s name and Pliego signed the application next to the words “Producer Signature” (evidence there is no difference between a “Producer Number” and an “Agent Number”). Id.
16. The Court even recognized there are unaffiliated agents who utilize materials from insurers such as applications and brochures, but the crux of the agency relationship lands at when the insurer accepts business from the agent. Id. at 782. The Court ruled that Pliego was “acting in the capacity of an agent for RLI” based off of these facts, but the case was remanded to uncover what knowledge Pliego actually had concerning the insureds. Id. at 783.
17. In this case, Defendant provided blank applications to Brown in order for him to sell insurance for Defendant. Once Plaintiff and Brown signed the application for Defendant’s insurance, Defendant accepted the business from Brown. Brown was provided a Producer Code that appears on the application and “Peachtree Casualty Insurance Company” appears on each page of the application. Brown was also provided a manual and Underwriting Guidelines in order to appropriately sell Defendant’s insurance. All of these facts fit squarely within Almerico and Straw. Furthermore, no limitations were announced to Plaintiff as to Brown’s authority.
18. When analyzed in their entirety, the documents provided, the actions of both Brown and the parties, the continuity of the relationship between Brown and Defendant, and all other factors discussed in this Order, establish a clear agency relationship under Almerico, whether actual or apparent.
19. Plaintiff’s Motion for Partial Final Summary Judgment Regarding Agency is GRANTED.
20. Defendant’s Motion for Reconsideration/Clarification of the Order Dated January 25, 2018, Granting in Part Defendant’s Motion for Summary Judgment and Denying Plaintiff’s Motion for Summary Judgment is DENIED.
21. Defendant’s Motion for Summary Judgment, filed April 26, 2019 is DENIED.
