Amstar Ins. Co. v. Cadet

862 So. 2d 736, 2003 Fla. App. LEXIS 15221, 2003 WL 22316695
CourtDistrict Court of Appeal of Florida
DecidedOctober 10, 2003
Docket5D02-2673
StatusPublished
Cited by13 cases

This text of 862 So. 2d 736 (Amstar Ins. Co. v. Cadet) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amstar Ins. Co. v. Cadet, 862 So. 2d 736, 2003 Fla. App. LEXIS 15221, 2003 WL 22316695 (Fla. Ct. App. 2003).

Opinion

862 So.2d 736 (2003)

AMSTAR INSURANCE COMPANY, Appellant,
v.
Marie CADET, Appellee.

No. 5D02-2673.

District Court of Appeal of Florida, Fifth District.

October 10, 2003.
Rehearing Denied January 14, 2004.

*738 Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Appellant.

Charles R. Steinberg of Amari & Theriac, P.A., Cocoa, for Appellee.

SAWAYA, C.J.

Amstar Insurance Company appeals a final summary judgment entered in favor of Marie Cadet, Amstar's purported insured, in Cadet's underlying suit for declaratory relief and breach of contract. Amstar contends that the trial court should have granted its motion for summary judgment and denied Cadet's. We agree and, therefore, reverse the summary judgment entered in favor of Cadet and remand to the trial court for entry of a summary judgment in favor of Amstar.

The issue we must resolve is whether the trial court erred in ruling that Amstar was estopped from asserting cancellation as a coverage defense based on Cadet's contention that the insurance agency from which she purchased the policy, the McClain Agency, acted as agent for Amstar in accepting premium payments from her after the cancellation date.[1] In order to resolve this issue we will determine in the following order whether the McClain Agency was a broker or an insurance agent for Amstar and, if the McClain Agency was a broker, whether it acted as a statutory, actual, or apparent agent of Amstar for purposes of collecting the insurance premium from Cadet. But first, we will discuss the factual and procedural background of the instant case.

Factual And Procedural Background

Cadet purchased the insurance policy from the McClain Agency,[2] which represented at least thirty different insurance companies, including Amstar. Cadet financed the policy premium with Gold Coast Finance, Inc. When the premium was financed, the McClain Agency paid Amstar in full with the financed draft and assumed the responsibility of accepting monthly premium payments from the insured and forwarding those payments to Gold Coast.

Amstar subsequently determined that Cadet's driving record did not meet its underwriting guidelines and, within thirty days of issuance of the policy, it sent both Cadet and the McClain Agency a notice of cancellation, effective January 27, 1997. Amstar then returned Cadet's unearned premium by issuing a refund to Gold Coast.[3]

*739 Cadet failed to obtain insurance through another company and made her premium payments directly to the McClain Agency by checks that referenced her premium finance number. The receipts the McClain Agency issued for each payment noted the fact that the policy premium had been financed with Gold Coast. No reference was made to Amstar. The McClain Agency deposited the payments into its account and issued payment to Gold Coast. Significantly, after Amstar issued its cancellation notice, Amstar never received any premium payments from Cadet, Gold Coast or the McClain Agency. Moreover, Amstar never gave Gold Coast or the McClain Agency any authority to accept any premium payments on its behalf after it cancelled the policy.

Unfortunately for Cadet, on June 16, 1997, she was involved in an automobile accident and subsequently made a claim with Amstar for personal injury protection and collision benefits. Cadet's claim was denied by Amstar, which asserted that the policy had been canceled. Cadet then sued Amstar for declaratory relief and breach of the insurance contract. After the trial court denied Amstar's motion for summary judgment, Cadet filed her motion for summary judgment, which the trial court granted. Hence this appeal.

If the McClain Agency was an insurance agent for Amstar, as Cadet claims, then the McClain Agency's acceptance of the premium payments from Cadet after the policy was cancelled can be attributed to Amstar and may estop Amstar from asserting cancellation as a defense. But if, as Amstar argues, the McClain Agency was a broker, which generally acts as an agent for the insured, the McClain Agency's continued acceptance of the premium payments would not be attributable to Amstar unless it acted in the dual role as a statutory, actual or apparent agent for Amstar for purposes of accepting the premium payments. See Almerico v. RLI Ins. Co., 716 So.2d 774, 776-77 (Fla.1998) (holding that a broker may be a statutory agent for an insurance company pursuant to section 626.342, Florida Statutes (1989), or be clothed with actual or apparent authority so that the broker's acts may be binding on the insurance company) (citations omitted); see also Guarente-Desantolo v. John Alden Life Ins. Co., 744 So.2d 1123, 1125 (Fla. 4th DCA 1999). We must, therefore, first determine whether the McClain Agency was a broker or an insurance agent for Amstar.

Broker Or Insurance Agent

An "insurance broker" is one who solicits insurance orders from the general public and is not bound by contract to work for or solicit insurance for any particular insurance company. Almerico; Boulton Agency, Inc. v. Phoenix Worldwide Indus., Inc., 698 So.2d 1248 (Fla. 3d DCA 1997); Auto-Owners Ins. Co. v. Yates, 368 So.2d 634 (Fla. 2d DCA), cert. denied, 378 So.2d 351 (Fla.1979). Upon receipt of an order, a broker may place it with an insurance company chosen by the insured or one chosen from many companies by the broker. See Boulton; Yates. A broker, therefore, is free to generally act as a conduit or middleman between the insured and one of many insurers chosen by the broker or the insured to issue the policy. Almerico; Boulton. Some courts, including this one, refer to a broker as an "independent insurance agent." Steele v. Jackson Nat. Life Ins. Co., 691 So.2d 525, 527 (Fla. 5th DCA 1997); T & R Store Fixtures, Inc. v. Travelers Ins. Co., 621 So.2d 1388 (Fla. 3d DCA 1993); see also Straw v. Associated Doctors Health & Life, 728 So.2d 354, 357 n. 4 (Fla. 5th DCA 1999). *740 As a general rule, an insurance broker acts as the agent of the insured. See Almerico; Boulton; Great Oaks Cas. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 530 So.2d 1053 (Fla. 4th DCA 1988); AMI Ins. Agency v. Elie, 394 So.2d 1061 (Fla. 3d DCA 1981).[4]

An "insurance agent" is generally one who is contractually obligated to work for and solicit insurance on behalf of a specific insurance company. Elie. Hence, the nature of the relationship between agent and insurer is generally ongoing and continuous, whereas a broker is usually employed by the insured for the specific purpose of procuring, with some insurance company, a policy of insurance. Insurance agents are sometimes referred to by the courts as a "captive agents." Steele, 691 So.2d at 527. Because of the agency relationship, the acts of an insurance agent are generally attributable to and binding upon the insurance company. Hardy v. American S. Life Ins. Co., 211 So.2d 559 (Fla.1968); Johnson v. Life Ins. Co. of Ga., 52 So.2d 813 (Fla.1951); Steele; Essex Ins. Co., Inc. v. Universal Entm't & Skating Ctr., Inc., 665 So.2d 360, 362 (Fla. 5th DCA 1995) ("Knowledge of an insurance agent binds its principal, even if not transmitted to the principal.") (citations omitted); Great Oaks; Gaskins v. General Ins. Co. of Fla., 397 So.2d 729 (Fla. 1st DCA 1981).

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Bluebook (online)
862 So. 2d 736, 2003 Fla. App. LEXIS 15221, 2003 WL 22316695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amstar-ins-co-v-cadet-fladistctapp-2003.