2003

28 Fla. L. Weekly D1363a

Torts — Insurance agents — Negligent failure to procure requested coverage — Where plaintiff procured defendant agent to provide liability policy for his business for protection against damage from fire and flood, but defendant procured general liability policy that excluded coverage for property damage, trial court properly entered judgment in favor of plaintiff in action alleging negligent procurement of insurance policy after fire occurred at business causing destruction of inventory, stock, and business records — Measure of damages in a negligent procurement of insurance case is what would have been covered had the insurance been properly obtained — Plaintiff proved the measure of damages by submitting copy of certificate of insurance indicating that fire damage incurred was included in general liability policy and by introducing an inventory list that he prepared after the fire which reflected the loss of fixtures, as well as merchandise — Defendant cannot rely on defenses available to co-defendant at trial to defend his own interests because he failed to appear at trial and present merits of his own defense

28 Fla. L. Weekly D1531a

Torts — Insurance agents — Failure to procure or renew automobile policy — Law of the case — Issue adjudicated in prior declaratory judgment action and resolved in appeal was legal relationship between agent and insurer, not relationship between agent and tortfeasor or injured party — Injured party’s negligent procurement action claimed that agent should have timely renewed insurance policy, whereas declaratory judgment action merely determined that tortfeasor’s delivery of payment and application to agent did not trigger any obligation by insurer based upon legal relationship between them — Trial court properly entered summary judgment in favor of injured party where there were no genuine issues of material fact as to agent’s failure to procure insurance for tortfeasor — Attorney’s fees — Injured party not entitled to recover attorney’s fees from insurance agent under section 627.428(1) — Florida Supreme Court has held that only persons named in statute are entitled to recover attorney’s fees — Although an exception exists where fees are an element of damages in tort action, and insured’s damages in a negligent procurement action may include a claim for attorney’s fees against insured’s agent, injured party’s attorney’s fees are not a component of her damages because she was not forced to incur those fees as a result of her agent’s failure to procure insurance coverage

28 Fla. L. Weekly D2340a

Insurance — Automobile — Cancellation of policy — Insurance agency was broker for insurer and did not act as statutory, actual or apparent agent for insurer when it collected premium payments from insured after insurer had cancelled policy — Circumstances indicating that agency was acting as broker included facts that agency solicited insurance business from general public and had relationships with numerous insurance companies with which it placed applications for insurance on behalf of its customers; insurer’s relationship with agency was made clear in written agreement which provided that agency had authority to solicit, receive, and transmit applications for insurance contract for commission; application executed by insured for coverage with insurer clearly informed insured that agency did not have authority to bind insurer to coverage without first obtaining telephonic binder from insurer with a corresponding binder number; and application also provided that agency had no right to make, alter, modify, or discharge any contract or policy issued on basis of insured’s application — Broker did not become statutory agent for insurer under section 626.342(2) where application for insurance executed by insured specifically informed insured of limitations placed by insurer on broker’s authority — Pursuant to agreement between insurer and agency, agency had no actual authority to collect premium payments for premium financing company on behalf of insurer — Nothing in record indicated that insurer made representation to insured that agency had the authority on behalf of insurer to accept premium payments for premium financing company and, accordingly, agency was acting on behalf of premium financing company, not insurer, when it accepted these payments — Even if agency had actual or apparent authority to act on behalf of insurer, agency would have been acting outside the scope of that authority when it accepted premium payments from insured after having received notice of cancellation of policy — Accordingly, acceptance of premium payments by agency on behalf of premium financing company after policy was cancelled did not estop insurer from asserting cancellation as a defense — Because policy was effectively cancelled prior to accident, insurer provided no coverage for accident — Remand for entry of summary judgment in favor of insurer