JEAN L. RIHON, APPELLANT,
v.
HERBERT J. T. WILSON, D/B/A WILSON INSURANCE AGENCY, APPELLEE
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An exchange student injured by an uninsured motorist sued an insurance agent for negligently procuring a policy with inadequate uninsured motorist coverage limits. The court held that to sue an insurance agent for negligent procurement, a third-party plaintiff must allege he is a beneficiary of the contract to procure insurance, not merely of the insurance policy itself.
An injured third party cannot maintain a direct action against an insurance agent for negligent procurement unless the third party alleges he is a beneficiary of both the insurance policy and the written or implied contract to procure the insurance between the agent and the named insured. A third party who alleges only that he is a beneficiary of the insurance policy, without alleging beneficiary status under the procurement contract, cannot state a cause of action.
[1] An injured third party cannot bring a direct action against an insurance agent for negligence in procuring a policy unless the third party alleges status as a legally rec…
[2] A complaint alleging status as a third-party beneficiary of an insurance policy alone is insufficient to establish standing to sue an insurance agent for negligence in pr…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In order to bring a direct cause of action against an agent for his negligence in procuring a policy, one must allege status as a legally recognized beneficiary of the written or implied contract to procure insurance between the agent and the named insured.”
Establishes the core legal requirement that distinguishes successful third-party claims against insurance agents from unsuccessful ones.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJean Rihon, an exchange student from Belgium, was seriously injured in an automobile accident caused by an uninsured motorist while driving a car owne…
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BERANEK, Judge.
This is an appeal from the final dismissal of a complaint. Appellant, an exchange student from Belgium, residing in the home of Lucille D. Rybovich, was seriously injured in an automobile accident caused by an uninsured motorist. Mrs. Rybovich, the owner of the car appellant was driving, had an automobile liability insurance policy issued by Ohio Casualty Insurance Company. Appellee, an insurance agent, had procured this policy for Mrs. Rybovich. After the accident, it was discovered that the policy provided limits of $100,000/300,000 for bodily injury protection coverage but only $10,-000/20,000 for uninsured motorist coverage. The UM coverage was inadequate to cover the injuries sustained by appellant.
Appellant brought an action against appellee alleging that appellee was negligent in failing to disclose and explain the UM coverage provisions and options available to Mrs. Rybovich and in improperly and inadequately advising her as to the same. There is no allegation that Rybovich would have purchased higher UM limits had she been more fully advised. Further, there is no allegation of any deficiency concerning the written rejection of UM coverage. Appel-lee moved to dismiss the complaint on the grounds that appellant had no standing to sue him for an alleged error committed by him in an agency relationship with Mrs. Rybovich. Further, the complaint did not allege that appellee owed any duty to appellant in his dealings with Mrs. Rybovich. The trial court dismissed the complaint with leave to amend. Appellant filed an amended complaint adding the insurance company as a party defendant. Appellee again moved to dismiss on the same grounds cited in his previous motion. The trial court granted the motion with prejudice after appellant refused to amend further. This appeal follows.
Appellant contends that the trial court erred in refusing to allow him to bring a direct action against the insurance agent for that agent’s alleged negligence in providing a policy of insurance to the named insured. Citing our recent decision in Hamer v. Kahn, 404 So. 2d 847 (Fla. 4th DCA 1981), he asserts that an injured person who is an additional insured or third party beneficiary to an automobile liability insurance policy has a cause of action against an insurance agent who negligently procures the policy involved. While appellant is correct in his reading of our holding in Hamer, a case that also came to us after a motion to dismiss, he fails to discern the crucial difference between his complaint and the complaint filed in Hamer. Hamer alleged in her complaint that she was a third party beneficiary of both the insurance policy and the written contract to procure the insurance. In order to bring a direct cause of action against an agent for his negligence in procuring a policy, one must allege status as a legally recognized beneficiary of the written or implied contract to procure insurance between the agent and the named insured. After a careful review of the complaint in this case, we find that appellant only alleges that he is a third party beneficiary of the insurance policy. Nowhere does he allege that he is a beneficiary of whatever contract existed between the insurance agent and Mrs. Rybo-vich to procure the policy. The omission of this allegation is fatal to appellant’s suit against the agent. In the face of appellant’s refusal to amend, we affirm the dismissal with prejudice.
AFFIRMED.
ANSTEAD, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.
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Citator
Cited By
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Robinson v. John E. Hunt & Assocs., Inc., 490 So. 2d 1291 (Fla. 1st DCA 1986)…., 139 So. 2d 476 (Fla. 2d DCA 1962).1 Finally, Florida permits a direct third party action by an injured person against an insurance agent for that agent’s alleged negligence in failing to provide the tortfeasor adequate insurance. Rihon v. Wilson, 415 So. 2d 94 (Fla. 4th DCA 1982); Hamer v. Kahn, 404 So. 2d 847 (Fla. 4th DCA 1981); and Shingleton v. Bussey, 223 So. 2d 713 (Fla.1969).2 Genuine issues of material fact remain in this case whether Hunt breached his contract with Shuford by negligently sending…
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Rihon v. Herbert J.T. Wilson, 458 So. 2d 378 (Fla. 4th DCA 1984)…st both appellees was dismissed with prejudice as to Wilson but by stipulation between the parties the claim against Ohio Casualty Company was stayed, pending Ri-hon’s appeal against Wilson. We affirmed the dismissal with prejudice, Rihon v. Wilson, 415 So. 2d 94 (Fla. 4th DCA), petition for rev. denied, 424 So. 2d 762 (Fla.1982). All of the pertinent facts which led to appellant’s action are recited in our earlier decision. Rihon’s claim as to Wilson, like the proverbial phoenix, keeps rising from its own…
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Mudano v. Frenkel & Co., Inc., 489 So. 2d 1184 (Fla. 2d DCA 1986)…phasize that the third party beneficiary claim arises not from the contract of insurance, but rather, from whatever contractual undertaking the insurance agent was committed to in providing protection to the purchaser of the policy. Rihon v. Wilson, 415 So. 2d 94 (Fla. 4th DCA 1982). In the matter before us, the Múdanos have [*1185] pleaded the existence of an agreement between Sembler and Frenkel which, but for the negligent breach by Frenkel, would have provided coverage sufficient to satisfy the arbitral…
Authorities Cited
- Young v. State, 404 So. 2d 847 (Fla. 4th DCA 1981)
- Hamer v. Kahn, 404 So. 2d 847 (Fla. 4th DCA 1981)