MARVIN E. WOODHAM AND PAULINE WOODHAM, APPELLANTS,
v.
RAYMOND S. MOORE, LUMBERMEN'S MUTUAL CASUALTY COMPANY, ET AL., APPELLEES
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The court held that the allegations in the pleadings were sufficient to raise the issue of the agent's negligent failure to advise the appellants of their right to secure insurance outside the assigned risk plan.
Appellants sued third-party defendants (appellees) alleging they negligently failed to obtain adequate automobile liability coverage. The trial court …
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PER CURIAM.
This is an appeal from a summary final judgment exonerating an insurance agent from liability for alleged negligence in failing to advise the appellants of the availability and desirability of obtaining higher limits of liability insurance.
There is evidence in the record that the appellants had once had higher limits but were forced to obtain assigned risk coverage at lower limits because of a record of accidents. However, there is also evidence that the appellants subsequently became eligible for coverage with higher limits outside the assigned risk plan but were not so advised by the appellees. In addition, the appellees acknowledged that they had a policy of periodically reviewing the files of their clients, presumably for the purpose of noticing such situations.
Under these circumstances we believe issues of fact existed with respect to the obligation of the agent to advise the appellants of their right to leave the assigned risk plan. Luckey v. Willis Ins. Agency, Inc., 409 So. 2d 1218 (Fla. 3d DCA 1982). We remand with some reluctance because we acknowledge that the pleadings do not precisely pinpoint this issue. Were we dealing only with the appellants’ allegations that the agent had a broad duty to procure “adequate” insurance, notwithstanding the absence of any instructions to that effect from the appellants, the result might well be different. However, if the record reflects facts which may support a cause of action a claimant should be given an opportunity to amend even where the existing pleadings may be inadequate. Hart Properties, Inc. v. Slack, 159 So. 2d 236 (Fla.1964); Roberts v. Braynon, 90 So. 2d 623 (Fla.1956). We believe such a situation exists here.
Accordingly, we affirm the entry of summary judgment but remand this cause with directions that appellants be given an opportunity to amend their Third Party Complaint to attempt to state a cause of action on the issue discussed above.
ANSTEAD, DELL and WALDEN, JJ., concur.
PER CURIAM.
On rehearing the appellees claim that we have violated the Supreme Court’s admonition in Dober v. Worrell, 401 So. 2d 1322 (Fla.1981), not to allow issues to be raised for the first time on appeal. On the other hand the appellants, expressing the same concern but for different reasons, ask us to reconsider our holding that their pleadings were insufficient to cover the issue of fact which we found to exist. The allegations relied upon by appellants are:
6. The Third Party Defendants, Louise M. Roy and J & L Roy, Inc. owed a duty to the Third Party Plaintiffs to provide the automobile liability coverage needed; to obtain the maximum amount of liability coverage for the premium charge; to periodically review the risk to determine whether the liability insurance was adequate;
7. The Third Party Defendants, Louise M. Roy and J & L Roy, Inc. negligently failed to perform their duties to the Woodhams by:
C. ... Despite the fact ... that automobile insurance was available to the Third Party Plaintiffs at regular Commercial rates, the Third Party Defendant, Louise M. Roy, procured only minimal automobile liability coverage with policy limits of $10,000 for any one person injured as a result of an automobile accident from the joint underwriting association at a premium with which the Third Party Plaintiffs could have procured much higher automobile liability coverage; ....
We now hold that these allegations, while perhaps somewhat vague and imprecise, were sufficient to include a claim that the appellee agent negligently failed to advise appellants of their right to secure insurance outside of the assigned risk plan. Accordingly, we deny appellees’ petition for rehearing, grant appellants’ petition for rehearing, reverse the final summary judgment, and remand for further proceedings.
ANSTEAD, DELL and WALDEN, JJ., concur.
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Adams v. AETNA Cas. & Sur. Co., 574 So. 2d 1142 (Fla. 1st DCA 1991)…ailability and desirability of obtaining higher limits, depending on the scope of the agents undertaking. Seascape of Hickory Point Condominium Association v. Associated Insurances Services, Inc., 443 So. 2d 488 (Fla. 2d DCA 1984); Woodham v. Moore, 428 So. 2d 280 (Fla. 4th DCA 1983); Sheridan v. Greenberg, 391 So. 2d 234 (Fla. 3d DCA 1981). The trial' court correctly determined that Bacon was under a duty of care to Mr. Adams in this case based on the evidence of their relationship and the scope of Bacon’s u…
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DiPAOLO v. Rollins Leasing Corp., 700 So. 2d 31 (Fla. 5th DCA 1997)…rways Investments of Florida, Inc., 543 So. 2d 458 (Fla. 5th DCA 1989); Key Bank of Florida v. First United Land Title Co., 502 So. 2d 1280 (Fla. 2d DCA 1987); Cudlipp v. Blue Chip Laundry, Inc., 476 So. 2d 783 (Fla. 4th DCA 1985); Woodham v. Moore, 428 So. 2d 280 (Fla. 4th DCA 1983); Kadar v. Iowa Nat. Mut. Ins. Co., 374 So. 2d 1075 (Fla. 5th DCA 1979); First National Bank of Tampa v. Pappas, 372 So. 2d 989 (Fla. 2d DCA 1979); Inman v. The Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977), and c…
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Cudlipp v. Blue Chip Laundry, Inc., 476 So. 2d 783 (Fla. 4th DCA 1985)…etter one than that pleaded, the proper procedure is to enter the summary judgment with leave to the party to amend as was authorized in Roberts v. Braynon, Fla.1956, 90 So. 2d 623. This court recently reaffirmed that principle in Woodham v. Moore, 428 So. 2d 280 (Fla. 4th DCA 1983). Perhaps more important, the Supreme Court recently mentioned Hart in Dober v. Worrell, 401 So. 2d 1322, 1324 (Fla.1981), saying: This Court expressly held that a trial court could grant summary judgment but allow the losing…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chirogianis v. Anderson, 401 So. 2d 1322 (Fla. 1981)
- Duarte v. Stevens Mkts., Inc., 159 So. 2d 236 (Fla. 1963)
- Roberts v. Braynon, 90 So. 2d 623 (Fla. 1956)
- Luckey v. Willis Ins. Agency, Inc., 409 So. 2d 1218 (Fla. 3d DCA 1982)