APPLE PREMIUM FINANCE SERVICE COMPANY, APPELLANT,
v.
GENERAL STAR INDEMNITY COMPANY, APPELLEE
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Apple Premium Finance Company appealed a summary judgment dismissing its fraud and civil theft claims against General Star Indemnity Company. The court affirmed, holding that Apple could not recover for misconduct committed by an intermediary agent (Miami Insurance, Inc.) that was Apple's own agent, not General Star's agent, and that Apple created the circumstances enabling the fraud.
Apple has no cause of action for fraud and civil theft against General Star because Miami Insurance, Inc. was Apple's agent, not General Star's agent, and Apple created the circumstances enabling the fraud and must suffer the consequences. Apple failed to state a claim for negligent hiring and retention because the misconduct was not alleged to be committed by General Star's employee. General Star's counterclaim for negligence was properly dismissed because it was not adequately pleaded.
[1] A party cannot recover for fraud and civil theft against another party when the alleged misconduct was committed by an agent of the party seeking recovery, and that party…
[2] A party is not liable for negligent hiring and retention when the misconduct complained of was not committed by an employee of that party.
Previewing 2 of 5 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“the plaintiff has no cause of action for fraud and civil theft against the defendant for the actions of the Miami Insurance, Inc. because (a) the Miami Insurance, Inc. was not, as urged, the agent of the defendant, but, instead, was the agent of the plaintiff with respect to the acts sued upon, and (b) the plaintiff created the circumstances which enabled Miami Insurance, Inc. to perpetrate the fraud and civil theft sued upon and therefore must suffer the consequences for any loss occasioned thereby.”
Establishes the core holding that a party cannot recover for fraud committed by its own agent, especially when it supplied the instrumentalities of the fraud.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceApple Premium Finance Company supplied Miami Insurance, Inc. with blank finance contracts and check drafts to facilitate writing insurance finance con…
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PER CURIAM.
This is an appeal by the plaintiff Apple Premium Finance Company from an adverse final summary judgment and an order awarding attorney’s fees; this is also a cross appeal by the defendant General Star Indemnity Company from an order dismissing its counterclaim. We affirm.
First, we conclude, based on this record, that as a matter of law (1) the alleged fraud and civil theft sued upon in this case was committed by an employee or agent of Miami Insurance, Inc.; (2) the plaintiff Apple Premium Finance Company supplied Miami Insurance, Inc. with the blank finance contracts and check drafts which facilitated the fraud and civil theft sued upon so that Miami Insurance, Inc. could write insurance finance contracts for the plaintiff; and, therefore, (3) the plaintiff has no cause of action for fraud and civil theft against the defendant for the actions of the Miami Insurance, Inc. because (a) the Miami Insurance, Inc. was not, as urged, the agent of the defendant, but, instead, was the agent of the plaintiff with respect to the acts sued upon, and (b) the plaintiff created the circumstances which enabled Miami Insurance, Inc. to perpetrate the fraud and civil theft sued upon and therefore must suffer the consequences for any loss occasioned thereby. Cupac, Inc. v. Mid-West Ins. Agency, Inc., 626 F.Supp. 559, 562 (S.D. Ohio 1985); Niccolls v. Jennings, 92 So. 2d 829, 832-33 (Fla.1957); Sumpolec v. Pruco Life Ins. Co., 563 So. 2d 778, 779 (Fla. 3d DCA 1990); Jaar v. University of Miami, 474 So. 2d 239, 242 (Fla. 3d DCA 1985), rev. denied, 484 So. 2d 10 (Fla.1986); National Premium Budget Plan Corp. v. National Fire Ins. Co. of Hartford, 106 N.J. Super. 238, 254 A. 2d 819, 820 (App.Div.), cert. denied, 54 N.J. 515, 257 A. 2d 113 (1969).
Second, we conclude that the plaintiff pled no cause of action for negligent hiring and retention against the defendant because the misconduct complained of was not alleged to have been committed by an employee of the defendant. This being so, the trial court properly dismissed this count. Mallory v. O’Neil, 69 So. 2d 313 (Fla.1954); Garcia v. Duffy, 492 So. 2d 435, 438-39 (Fla. 2d DCA 1986).
Third, we conclude that the trial court did not err in awarding attorney's fees for the defendant because the plaintiffs claims were “without substantial fact or legal support,” thereby entitling the defendant to such fees under Section 772.11, Florida Statutes (1991). Friedman v. Lauderdale Medical Equip. Serv., 591 So. 2d 328 (Fla. 4th DCA 1992); Foreman v. E.F. Hutton & Co., 568 So. 2d 531 (Fla. 3d DCA 1990). Finally, we see no error in the dismissal of the defendant’s counterclaim as clearly no cause of action for negligence per se or negligence was pled below. AFM Corp. v. Southern Bell Tel. & Tel. Co., 515 So. 2d 180, 181-82 (Fla.1987); deJesus v. Seaboard Coast Line R.R., 281 So. 2d 198, 201 (Fla.1973); Grand Union Co. v. Rocker, 454 So. 2d 14 (Fla. 3d DCA 1984).
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (11 total)
- AFM Corp. v. S. Bell Tel. & Tel. Co., 515 So. 2d 180 (Fla. 1987)
- In re Transition Rule 15, 281 So. 2d 198 (Fla. 1973)
- Jaar v. The Univ. OF Miami, 474 So. 2d 239 (Fla. 3d DCA 1985)
- Garcia v. Duffy, 492 So. 2d 435 (Fla. 2d DCA 1986)
- Mallory v. O'Neil, 69 So. 2d 313 (Fla. 1954)
- The Grand Union Co. v. Arline Rocker, 454 So. 2d 14 (Fla. 3d DCA 1984)
- Foreman v. E.F. Hutton & Co., Inc., 568 So. 2d 531 (Fla. 3d DCA 1990)
- Friedman v. Lauderdale Med. Equip. Serv., Inc., 591 So. 2d 328 (Fla. 4th DCA 1992)
- Niccolls v. Jennings, 92 So. 2d 829 (Fla. 1957)
- Galvan v. State, 563 So. 2d 778 (Fla. 3d DCA 1990)