Opinion
Case No. 5D10-1906
09-21-2012
FRANK GAY AND FRANK GAY PLUMBING, INC., Appellant, v. ASSOCIATION CASUALTY INSURANCE COMPANY, ET AL., Appellee.
Michael M. Kest of Kest Law, LLC, Winter Park, and W. Riley Allen, of Allen & Murphy, P.A., Orlando, for Appellant. Nicholas A. Shannin, of Page, Eichenblatt, Bernbaum & Bennet, P.A., Orlando, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Orange County, Julie H. O'Kane, Judge. Michael M. Kest of Kest Law, LLC, Winter Park, and W. Riley Allen, of Allen & Murphy, P.A., Orlando, for Appellant. Nicholas A. Shannin, of Page, Eichenblatt, Bernbaum & Bennet, P.A., Orlando, for Appellee. JACOBUS, J.
Frank Gay and Frank Gay Plumbing, Inc., timely appeal an order entering final summary judgment against them in favor of Association Casualty Insurance Co. ("the Association"), which found there was no uninsured motorist coverage available to Mr. Gay under the terms and conditions of the policy he had with the Association. We find that a material issue of fact remains and reverse and remand the case for further consideration.
In August 2005, Mr. Gay was involved in an automobile accident with an underinsured motorist. At the time of the accident, Mr. Gay was driving a vehicle owned by his company, Frank Gay Plumbing, Inc. The company maintained an insurance policy with the Association, which provided uninsured motorist coverage. Mr. Gay purchased this coverage through Burkey Risk Services, Inc. ("Burkey Risk").
Mr. Gay was contacted by the tortfeasor's carrier, GEICO Indemnity Insurance Company ("GEICO"), regarding the accident. GEICO provided Mr. Gay with a settlement check for $10,000 and a settlement release of all claims. In May 2006, before cashing the check or signing the release, Mr. Gay contacted a representative of Burkey Risk and asked whether it was appropriate to cash the $10,000 check from GEICO. He was advised by an employee of Burkey Risk that it was okay to cash the check, but he should not sign the release because it might affect his ability to pursue additional claims for underinsured motorist benefits from his own insurance company. In June 2006, Mr. Gay cashed the $10,000 check. He did not initially sign the release. At some later date he did sign the release, but the release was never delivered to GEICO. At the time he cashed the check, Mr. Gay sent a letter to Burkey Risk asking whether or not to sign the release. Mr. Gay also asked Burkey Risk to report the underinsured motorist claim to the Association.
The tortfeasor had a policy limit of $10,000. It is undisputed that Mr. Gay's injuries resulted in damages exceeding $10,000.
The Association denied Mr. Gay coverage on the basis that: (1) he had settled his claim with the underlying tortfeaser contrary to the insurance policy language, and (2) he had failed to give written notice to the insurance company of the uninsured motorist claim. Mr. Gay subsequently filed suit for declaratory relief. The parties filed cross-motions for summary judgment, contending there were no material issues of fact.
After a hearing on the motions for summary judgments, the trial court entered final summary judgment in favor of the Association and against Mr. Gay. The court found that Burkey Risk acted as the agent of both Mr. Gay and the Association. The court further found that notice to Burkey Risk was not notice to the Association and that Mr. Gay had failed to comply with the expressed terms of the policy, which required written notice to the carrier regarding an uninsured motorist claim.
The undisputed facts support the trial court's finding that Burkey Risk was both an agent of the insured, Mr. Gay, and the Association. See Essex Ins. Co. v. Zota, 985 So. 2d 1036, 1046 (Fla. 2008) (explaining difference between insurance agent and insurance broker). However, we conclude that the trial court erred in finding notice to Burkey Risk was not notice to the Association.
Florida Law is quite clear that notice to one agent is notice to the principal. That is true in the context of insurance. See Johnson v. Life Ins. Co. of Ga., 52 So. 2d 813, 815 (Fla. 1951). Here, Mr. Gay contends that he discussed the matter with an employee of Burkey Risk and there is correspondence between Mr. Gay and Burkey Risk that supports his contention. If Mr. Gay advised Burkey Risk of his potential settlement and Burkey Risk told him to cash the check, the Association is estopped to deny coverage under the policy because notice to their agent, Burkey Risk, was notice to the Association. The court found that Mr. Gay is not entitled to benefits because there was no written notice as required by the uninsured motorist policy. However, one can waive the written notice requirement when the carrier had actual notice of the claim. See Moskowitz v. State Farm Mut. Auto Ins. Co., 646 So. 2d 262 (Fla. 2d DCA 1994). It is unclear in this case whether Burkey Risk's employee told Mr. Gay to cash the check, but not to sign the release. Mr. Gay contends this occurred, but the employee denies that he gave Mr. Gay this advice. Thus, there is a material issue of fact regarding notice and summary judgment was not appropriate on this issue.
If Mr. Gay was not advised by Burkey Risk to cash the settlement check, another issue remains. Specifically, the question becomes whether the settlement with GEICO prejudiced the Association. It does not appear that this was considered in the motion for summary judgment. Mr. Gay, the insured, has the burden of showing that there was no prejudice to the Association by virtue of his settlement with GEICO and he should have the opportunity to present that proof. See Gen. Accident Ins. Co. of Am. v. Taplis, 493 So. 2d 32 (Fla. 5th DCA 1986).
It is undisputed that Burkey Risk was an agent of both Mr. Gay and the Association. However, a material issue of fact exists regarding whether Burkey Risk's employee told Mr. Gay to cash the check but not to sign the release. Therefore, this matter must be reversed and remanded for a trial on that issue.
REVERSED and REMANDED. COHEN, J., concurs.
EVANDER, J., concurs in result only, with opinion.
EVANDER, J., concurring in result only.
I agree with the Association that the undisputed material facts reflect that Burkey Risk did not have the actual authority to accept a notice of claim on behalf of the Association. However, because there is an unresolved factual issue as to whether Burkey Risk had the apparent authority to accept Mr. Gay's notice of claim on behalf of the Association, I concur in the result. See Essex Ins. Co. v. Zota, 985 So. 2d 1036, 1046 (Fla. 2008) ("[A]n insurance broker acts as an agent of the insured, not the insurer, where the broker is employed by the insured to procure insurance. The presumption can be overcome by the existence of special circumstances [i.e., indicia of agency] indicating that the broker's arrangement with the insurer was not a standard relationship.").