7 Fla. L. Weekly Supp. 11a

Insurance — Automobile — Cancellation of policy — Agency — Apparent authority — Where agent, in compliance with insurer’s application process, completed an inspection report and took photographs of vehicle, coverage was bound by insurer, but policy was subsequently canceled because photographs of vehicle that were submitted with application were not clear; and insured, upon receipt of cancellation notice, took vehicle to agency where a second set of photographs were taken and where agent allegedly told insured to ignore the cancellation notice and that coverage would remain in effect, whether agent’s conduct imposed liability for subsequent accident upon insurer depends upon whether insurance agency was an agent of insurer and whether employees of the agency acted with apparent authority to bind insurer — Genuine issues of material fact remain where agent testified that the agency which employed her had authority to bind insurer once an application was completed, but insurer’s corporate officer stated that agency was required to obtain authorization either by fax or telephone before insurer could be bound, broker agreement stated that broker must obtain written authorization from underwriter in order to accept or bind coverage for insurer, and application contained provision in bold print directly above insured’s signature stating that agent had no authority to bind company without first obtaining confirmation

VIOLET FRANCOIS, Plaintiff/Appellant, v. THE ARIES INSURANCE COMPANY, Defendant/Appellee. 9th Judicial Circuit in and for Orange County. Case No. CVA198-92. Lower Ct. Case No. CO97-11171. October 1, 1999. Appeal from the County Court for Orange County, Carolyn B. Freeman, Judge. Counsel: Randy E. Schimmelpfennig, Billings, Cunningham, Morgan & Boatwright, P.A. for Appellant. Benjamin W. Newman, Grower, Ketcham, Moré, Rutherford, Noecker, Bronson, Siboni & Eide, P.A. for Appellee.

(BEFORE EVANS, KIRKWOOD, and MIHOK, JJ.)

FINAL ORDER AND OPINION

(PER CURIAM.) Appellant, Violet Francois (“Francois”), appeals from an Order Granting Motion for Summary Judgment, rendered on October 21, 1998, in favor of Appellee, Aries Insurance Company (“Aries”).¹ This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1).

On January 16, 1997, Francois purchased an automobile insurance policy from Aries through the McClain Agency. Onyx, the underwriting division of Aries, has a broker agreement with the McClain Agency which allows the McClain Agency to receive proposals for automobile insurance coverage on behalf of Aries.

Prior to obtaining coverage from Aries, Francois was required to complete an Aries insurance application. Lori Call, an employee of the McClain Agency, assisted Francois in completing the application and obtaining coverage. As part of the application process, Aries required the McClain Agency to complete an inspection report and take photographs of the vehicle that was to be insured. Thus, in compliance with Aries’ application procedure, Lori Call took two photographs of Francois’ automobile and completed an inspection report. Ms. Call submitted the photographs and report with Francois’ application. Coverage for Francois was bound by Aries on January 16, 1997.

On February 6, 1997, an Aries underwriter canceled Francois’ insurance policy because the photographs of Francois’ car that were submitted with her application were not clear. On February 11, 1997, Aries mailed a notice of cancellation to the McClain Agency. Thereafter, the McClain Agency advised Francois of the cancellation by letter. The effective date of the cancellation was April 12, 1997.

According to Francois, upon receipt of the cancellation notice from the McClain Agency, she took her automobile to the McClain Agency where a second set of photographs of her automobile were taken. Francois asserts that, at the time the second photographs were taken, someone at the McClain Agency told her that “she could ignore the cancellation notice and that her coverage would remain in effect.” Francois continued to pay her premiums.

On July 11, 1997, Francois was involved in an automobile accident which resulted in damage to her automobile. Francois submitted a claim to Aries which was denied due to the prior cancellation of her policy.

Francois argues that McClain was an agent of Aries, or that there is a disputed issue of fact as to whether the McClain Agency was an agent of Aries. Generally, an independent insurance broker is the agent of the insured rather than the insurer. See Steele v. Jackson Nat’l Life Ins. Co., 691 So. 2d 525, 527 (Fla. 5th DCA 1997). However, case law recognizes that an independent broker may serve as the agent of the insured for one purpose and then serve as the agent for the insurer for another purpose. See id.; see also Auto-Owners Ins. Co. v. Yates, 368 So. 2d 634 (Fla. 2nd DCA 1979) (holding that an independent insurance broker who solicited automobile insurance coverage from the public was the agent of the insured for the purpose of obtaining coverage); Gonzalez v. Great Oaks Casualty Ins. Co., 574 So. 2d 1182 (Fla. 3rd DCA 1991) (holding that an independent insurance broker was the agent of the insurer because the broker had the authority to bind coverage for the insurer).

In a recent Florida Supreme Court case, the court held that “under section 626.342(2), Florida Statutes (1989), civil liability for an agent’s conduct may be imposed upon insurers who cloak insurance agents with sufficient indicia of agency to establish an agency relationship.” Almerico v. RLI Insurance Company, 716 So. 2d 774 (Fla. 1998). The court discussed apparent agency and found that:

Florida case law provides that an insurer may be held accountable for the actions of those whom it cloaks with “apparent agency.” Further, a review of the case law on agency indicates that evidence of indicia of agency may be demonstrated if the insurer furnishes an insurance agent or agency with “any blank forms, applications, stationary, or other supplies to be used in soliciting, negotiating, or effecting contracts of insurance.”

Id. at 777, quoting §626.342(1), Fla. Stat.

In her deposition, Lori Call testified that the McClain Agency had the authority to bind Aries once an insurance application was completed by an insured. Additionally, Call indicated that if an insured came in after receiving a notice of cancellation for lack of pictures, and she took new pictures for them, she would send the pictures on to the insurance company and advise the insured that everything would be taken care of as far as the cancellation. However, Donald Lord, a vice-president of Aries, stated that the McClain Agency was required to obtain authorization from Aries either by fax or telephone before Aries could be bound. The broker agreement between the McClain Agency and Onyx stated that the broker must obtain written authorization from the underwriter in order to accept or bind coverage for Aries. The Aries insurance application contained a provision, in bold print at the bottom of the second page, which stated “[t]he Agent has no authority to Bind the COMPANY without first obtaining confirmation from the COMPANY through a TELEPHONIC BINDER and receiving a corresponding BINDER NUMBER. The Agent has no right to MAKE, ALTER, MODIFY, OR DISCHARGE any CONTRACT or POLICY issued on the basis of this application.” Francois’ signature appears directly underneath this provision.

Upon review of this matter, the Court finds that there is a genuine issue of material fact as to whether the McClain Agency was an agent of Aries and whether employees of the McClain Agency acted with apparent authority to bind Aries.

Accordingly, it is hereby

ORDERED AND ADJUDGED that the trial court’s Order Granting Motion for Summary Judgment is REVERSED.

The Clerk of Court shall immediately deliver a certified copy of this Order to the Clerk of the lower tribunal.

FURTHER ORDERED that this matter is remanded to the trial court for proceedings consistent with this opinion.

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¹A Final Judgment was rendered on November 24, 1998.

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