Every insurance policy issued in Florida contains the requirement, in some form or another, that the insurance company be put on notice of the claim and certain other claim events. Failure to provide notice in accordance with the policy’s terms may allow the insurance carrier to deny the claim.
Florida law is quite clear that notice to one’s agent or apparent agent is notice to the principal. That is true in the context of insurance. See Johnson v. Life Insurance Company of Ga., 52 So.2d 813, 815 (Fla. 1951). Insurance brokers, on the other hand, are not agents. Therefore, notice to brokers is typically not imputed to the principal.
In Gay v. Association Cas. Ins. Co., So.3d , 38 FLWD74 (Fla. 5th DCA 12-28-2012) (on rehearing) the insured maintained an insurance policy with Association Casualty Insurance Company for uninsured and inderinsured motorist coverage which was purchased through Burkey Risk Services, Inc. The insurance policy contained notice instructions. Following a serious motor vehicle accident, Gay informed Burkey of the accident and claims to have received permission from Burkey to cash a check issued by GEICO, the tortfeasor’s carrier, in partial payment of his damages. When Gay sought underinsured coverage through his policy, Association denied the claim, citing a breach of the policy’s notice provisions.
The trial court granted summary judgment in favor of Associated, concluding that Burkey Risk Services, Inc. was merely a broker, instead of being Associated’s agent or apparent agent. The 5th DCA reversed the summary judgment and remanded to the trial court for further consideration of the relationship between Associated and Burkey. In the DCA’s view, there remained genuine issues of material fact regarding the status of the relationship.
Listed below is the conflicting evidence cited by the DCA as to why the trial court should be reversed and reconsider the evidence:
FACTS SUGGESTING THAT BURKEY WAS AN AGENT OR APPARENT AGENT:
- The agreement between Burkey Risk and the Association states that Burkey Risk can collect premiums on insurance and can receive, accept, and bind parties to certain proposals for contracts of insurance with the Association
- There was also evidence that Burkey Risk was the registered agent for the Association in Florida
- The evidence further showed that, on occasion, the Association provided materials, including brochures and fliers, to Burkey Risk when new products were on the market
FACTS SUGGESTING THAT BURKEY ACTED AS A BROKER:
- Burkey Risk represents more than seventy insurance companies. See Amstar Ins. Co. v. Cadet, 862 So. 2d 736 (Fla. 5th DCA 2003) (finding agency was insurance broker where it solicited insurance business from general public and had relationships with numerous insurance companies).
- Association did not provide stationary, binder forms, or applications to Burkey Risk
- According to the agreement between the Association and Burkey Risk, Burkey Risk is not permitted to use the Association’s name or logo(s) in advertising or promotional material without the Association’s permission
- The agreement further states that Burkey Risk is not the Association’s employee
Finally, at the end of the Gay opinion, the court made this important statement:
Even if the finder of fact determines that Burkey Risk was not the Association’s agent or apparent agent or that 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. The court, in its order on the summary judgment, indicated it could not reach a factual conclusion on that issue. On remand, Mr. Gay, the insured, should have an opportunity to show that there was no prejudice to the Association by virtue of the settlement with GEICO. See Gen. Accident Ins. Co. of Am. v. Taplis, 493 So. 2d 32 (Fla. 5th DCA 1986).
(For a further discussion of the prejudice issue, see our blog, Late Notice of Insurance Claim Not Always Fatal Under Florida Law.
Contact us toll free at 866-785-GALE or by email (firstname.lastname@example.org) for a free, confidential consultation to learn your legal rights.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.