CALVIN DEMARLOR, D/B/A THE UPPERDECK RESTAURANT, APPELLANT,
v.
FOLEY CARTER INSURANCE COMPANY, A FLORIDA CORPORATION, J. H. GARDNER GOULD, AND EMPLOYERS REINSURANCE CORPORATION, APPELLEES
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A directed verdict is improper if there is evidence that, when viewed favorably to the non-moving party, could support a verdict for that party.
[1] In ruling on a motion for a directed verdict, a court must consider only the evidence and inferences favorable to the nonmoving party.
[2] An insurance agent or broker who agrees to procure specific insurance coverage owes a duty to their principal to do so within a reasonable time and may be liable for resu…
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Join FLexlaw to unlock all legal intelligenceAppellant sued his insurance agents for breach of contract and fiduciary duty after his restaurant burned down, alleging they failed to procure adequa…
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OTT, Judge.
Appellant filed this action for damages allegedly sustained when appellees (1) breached their contractual duty to procure adequate insurance on his restaurant, and (2) breached their fiduciary duty to him by conspiring with others to deprive him of such insurance proceeds as did become available when the restaurant was destroyed by fire. The case came on for trial by jury, but after appellant presented his evidence the court directed a verdict for appellees on both causes of action. We reverse.
The dispositive rule governing this case is that in ruling on a motion for directed verdict the court must consider only the evidence and inferences favorable to the nonmoving party, and ignore evidence favorable to the movant. Carson v. Gulf Oil Corp., 123 So. 2d 35 (Fla. 2d DCA 1960). A motion can be granted only if, viewed in that light, there is no evidence which would support a verdict for the opposing party. Ahearn v. Florida Power and Light Co., 129 So. 2d 457 (Fla. 2d DCA 1961).
The instant record contains evidence which, if believed, could lead reasonable men to conclude that appellant took a copy of his restaurant lease to appellees, discussed his insurance needs and his obligation to insure the premises in which his restaurant was located, and instructed appellees to procure all of the coverage required by the lease; that appellees promised to do so but failed to obtain fire insurance on the structure, although the lease expressly and clearly required appellant to procure such coverage. To compound that nonfeasance, there is evidence from which the jury might conclude that appellees were obligated to advise appellant that such coverage hád not been obtained, but that appellant was not made aware of the omission until after the fire.
We believe the evidence could support a verdict for appellant on his first cause of action. An insurance agent or broker who agrees or undertakes to procure certain insurance coverage owes his principal a duty to do so within a reasonable time. If, through his own fault or neglect, he fails to do so, he may become liable for any resultant damages. Even when he is not to blame for the failure to obtain coverage the agent may nevertheless become liable for damages if he fails to inform his principal that the requested insurance has not been procured. Cat ’n Fiddle, Inc. v. Century Insurance Co., 200 So. 2d 208 (Fla. 3d DCA 1967).1 As for the second cause of action, the record contains evidence indicating, if believed, that when appellees received the proceeds from -the insurance written on appellant’s restaurant business, their officers connived with another client (the owner of the restaurant building, who had originally recommended appellees to appellant) to hold up distribution of the money on the pretext it had not arrived, until a suit could be filed by the owner to tie up the funds and recover damages for appellant’s failure to procure the insurance on the restaurant structure that the lease required. The law requires the appellees to deal with appellant in good faith and not to take advantage of him by serving a second master. Van Woy v. Willis, 153 Fla. 189, 14 So. 2d 185 (1943). A deliberate violation, in bad faith, could justify an award of punitive damages. Campbell v. Government Employees Insurance Co., 306 So. 2d 525 (Fla.1974); Richards Company v. Harrison, 262 So. 2d 258 (Fla. 1st DCA 1972).
We reject, as unsupportable in the law, appellees’ theory that appellant’s affirmative defenses to the action by his landlord are binding upon him insofar as they are inconsistent with his position in the present proceeding. He did not prevail on those defenses (actually, the case never got to trial), therefore, the doctrine of equitable estoppel could not arise. Grauer v. Occidental Life Ins. Co. of Cal., 363 So. 2d 583 (Fla. 1st DCA 1978); Bryant v. Stevens, 313 So. 2d 124 (Fla. 2d DCA 1975).
We also reject appellees’ contention that the directed verdicts were proper because appellant sustained no monetary damage from the negligence and/or treachery of his brokers. His losses in the first cause of action are easily calculated by simply comparing what he would have recovered had the premises been fully insured, with his actual net recovery. As to the second cause of action, appellant testified that he was forced by economic necessity to settle his landlord’s lawsuit because all the insurance money was tied up. Had appellees not helped tighten those pragmatic screws, which not only benefited their other client but also kept their own skirts clean of involvement in a cross-complaint, appellant would not have sustained that loss.
We believe that the evidence on both causes of action entitled appellant to take his case to the jury, and that as a consequence the court erred in directing a verdict in favor of appellees. The judgment is reversed and the case is remanded for a full trial.
SCHEB, Acting C. J., and RYDER, J., concur. . The cited opinion affirmed a directed verdict in favor of the insurance company and reversed a directed verdict in favor of the agent broker. The Florida Supreme Court later granted certiorari and ruled that the directed verdict in favor of the insurance company also should have been reversed. 213 So. 2d 701 (Fla.1968). That portion of the DCA opinion cited here was not vacated or affected.
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Glades OIL Co., Inc. v. R.A.I. Mgmt., Inc., 510 So. 2d 1193 (Fla. 4th DCA 1987)…Berk, 400 So. 2d 484 (Fla. 3d DCA 1981), the court held that an agent may be liable for “damages.” In Klonis v. Armstrong, 436 So. 2d 213 (Fla. 1st DCA 1983), rev. denied, 449 So. 2d 264 (Fla.1984), and deMarlor v. Foley Carter Construction Company, 386 So. 2d 22 (Fla. 2d DCA 1980), it was held that a negligent insurance agent’s liability extends to “resulting damages.” In Cat’n Fiddle, Inc. v. Century Insurance Company, 200 So. 2d 208 (Fla. 3d DCA 1967), vacated in part on other grounds, 213 So. 2d 701 (Fla…
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Nicholis v. Klonis and Mary E. Klonis, 436 So. 2d 213 (Fla. 1st DCA 1983)…o. 2d 476 (Fla. 2d DCA 1962); Cat ’n Fiddle v. Century Ins. Co., 200 So. 2d 208 (Fla. 3d DCA 1967), vacated in part on other grounds, 213 So. 2d 701 (Fla.1968); Caplan v. LaChance, 219 So. 2d 89 (Fla. 3d DCA 1969); deMarlor v. Foley Carter Ins. Co., 386 So. 2d 22 (Fla. 2d DCA 1980); Duncanson v. Service First, Inc., 157 So. 2d 696 (Fla. 3d DCA 1963); Sheridan v. Greenberg, 391 So. 2d 234 (Fla. 3d DCA 1981). The damages recoverable from the agent or broker would ordinarily be reduced to the extent that the la…1 / 2
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Sheridan v. Greenberg, 391 So. 2d 234 (Fla. 3d DCA 1980)…“consideration” instead of the words “compensation or other benefit,” and had the court defined consideration to include mutual promises, we might agree with Kaiser that no error was committed. . Neither deMarior v. Foley Carter Insurance Company, 386 So. 2d 22 (Fla. 2d DCA 1980), nor Cat’n Fiddle, Inc. v. Century Insurance Co., 200 So. 2d 208 (Fla. 3d DCA 1967), upon which the parties variously rely, involve gratuitous undertakings. . Kaiser argues that the instruction, if error, is harmless in light of…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Campbell v. Gov't Emps. Ins. Co., 306 So. 2d 525 (Fla. 1974)
- CAT 'N Fiddle, Inc. v. The Century Ins. Co., 213 So. 2d 701 (Fla. 1968)
- Ahearn v. Fla. Power & Light Co., 129 So. 2d 457 (Fla. 2d DCA 1961)
- The Richards Co., Inc. v. Harrison, 262 So. 2d 258 (Fla. 1st DCA 1972)
- CAT 'N Fiddle, Inc. v. The Century Ins. Co., 200 So. 2d 208 (Fla. 3d DCA 1967)
- Maud van Woy v. Willis, 153 Fla. 189 (Fla. 1943)
- Grauer v. Occidental Life Ins. Co. of Cal., 363 So. 2d 583 (Fla. 1st DCA 1978)
- Bryant v. Stevens, 313 So. 2d 124 (Fla. 2d DCA 1975)
- Carson v. Gulf OIL Corp., 123 So. 2d 35 (Fla. 2d DCA 1960)