6 Fla. L. Weekly Supp. 160a
Insurance — Personal injury protection — Declaratory judgment action in which insured sought determination whether her recovery of PIP benefits was subject to $2000 deductible that had been elected by her husband — Error to grant summary judgment in favor of insurer where there existed factual issue as to whether agency relationship existed between wife and husband — Spouses are not necessarily agents for one another for purposes of procuring insurance
ADELA LOPEZ, Appellant/Plaintiff, vs. DAIRYLAND INSURANCE COMPANY, Appellee/Defendant. 12th Judicial Circuit in and for Sarasota County. Case No. 97-4799-CA. Opinion issued November 6, 1998. Appeal from the County Court for Sarasota County; Emanuel LoGalbo, Jr., Presiding Judge. Counsel: Perry Tanksley, Sarasota, for Appellant. Andrew F. Russo, Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellee.
This matter is before the Court on Appellant/Plaintiff’s appeal from an order rendered in the County Court granting Appellee/Defendant’s motion for summary judgment [4 Fla. L. Weekly Supp. 227a]. The Court has considered all pleadings submitted by the parties, reviewed the appellate record, and is otherwise duly advised in the premises.
Appellant filed an action for declaratory relief in the County Court to determine whether her recovery of personal injury protection (“PIP”) benefits was subject to a $2000 deductible that had been elected by her husband as part of his insurance policy with appellee. The parties filed cross motions for summary judgment. After hearing, the lower court issued an order granting appellee’s motion.
In his order granting summary final judgment for the insurer, the trial judge stated the legal issue as follows: “since it is necessary to postulate that plaintiff’s husband had the apparent authority to obtain the instant insurance coverage inuring to the benefit of plaintiff, may it nonetheless be said that he had no apparent authority to reject the applicability of the deductible?” Seizing on the judge’s use of the term “postulate,” appellant argues that the order demonstrates the existence of genuine issues of material fact, which should have precluded entry of summary judgment.
Upon careful consideration, the Court finds merit in appellant’s contention that the trial court erred in granting summary judgment in this case. It is improper in summary judgment proceedings for a court to “postulate” or speculate with respect to any material, fact-based determination. As a general rule, the existence of an agency relationship is a question of fact to be determined by the trier of fact. Moore v. River Ranch, Inc., 642 So. 2d 642 (Fla. 2d DCA 1994); Underwriters of Lloyd’s of London v. CZX Productions, Inc., 686 So. 2d 706 (Fla. 2d DCA 1996). Issues of agency may be resolved by summary judgment only when the relevant, undisputed facts are capable of just one interpretation. Moore, 642 So. 2d at 643; Underwriters of Lloyd’s of London, 686 So. 2d at 708.
The plain language of the lower court’s order granting summary judgment for the insurer leaves the issue of agency between appellant and her husband unresolved. In addition, the appellate briefs submitted by the parties dispute the relevant facts and how they bear on the issue of agency. Therefore, this case was not susceptible to a summary determination.
In its brief, the insurer argues that the courts of this state “have consistently ruled that one spouse is vested with the apparent authority to obtain insurance and to select or reject a particular type of coverage.” The Court has found no authority, nor does the insurer cite any authority, which states as a general proposition of law, that spouses are necessarily agents for one another for purposes of procuring insurance. As with any other agency relationship, the existence of an agency relationship between a husband and wife must be determined on a case-by-case basis by evaluating the relevant facts and circumstances. See e.g. Acquesta v. Industrial Fire & Casualty Co., 467 So. 2d 284 (Fla. 1985) (record established that wife was vested by husband with apparent authority to obtain insurance on his vehicle and reject uninsured motorist coverage).
Accordingly, the Court orders that the summary final judgment entered for appellee be reversed and the case be remanded to the County Court for further proceedings.
REVERSED AND REMANDED.
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