D. MICHAEL BITZ, M.D. AND JEAN BITZ, M.D., APPELLANTS,
v.
ED KNOX CLU & ASSOCIATES, P.A. AND ED KNOX, APPELLEES
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Dr. Bitz sued his insurance agent Knox for negligence after Knox submitted erroneous financial information on a disability insurance application, which later gave the insurer grounds to contest coverage. The trial court entered summary judgment for Knox on the grounds that his negligence was not the proximate cause of the coverage dispute, but the appellate court reversed, finding genuine factual disputes precluded summary judgment.
The appellate court reversed the summary judgment, holding that genuine factual disputes existed regarding whether Knox's negligence was the proximate cause of the coverage litigation, precluding summary judgment as a matter of law.
[1] An insured may bring an action against an agent whose negligence causes the insured to incur attorney's fees and costs in litigation to secure coverage.
[2] Attorney's fees may be considered an element of damages when a defendant's wrongful act causes a plaintiff to become involved in litigation with third parties.
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Join FLexlaw to unlock all legal intelligence“an insured may bring an action against his/her agent whose negligence causes the insured to become embroiled in litigation to secure coverage and incur attorney's fees and costs”
Establishes the legal basis for the Bitzes' negligence claim against their insurance agent
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Join FLexlaw to unlock all legal intelligenceKnox, an insurance agent, submitted erroneous financial information on Dr. Bitz's disability insurance application with Federal Insurance Company. Fed…
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PER CURIAM.
Dr. D. Michael Bitz and his wife appeal an adverse final summary judgment in their negligence action1 against the appellees, Ed Knox CLU & Associates, P.A. and Ed Knox (collectively “Knox”), their insurance agent for a professional disability policy. We reverse.
In their claim for negligence, the Bitzes essentially alleged that their agent, Knox, inadvertently submitted erroneous financial information on Dr. Bitz’s application for disability insurance with Federal Insurance Company (“Federal”) which later gave Federal grounds to commence litigation in federal court to contest coverage when Dr. Bitz became disabled. Federal and Dr. Bitz eventually settled this coverage dispute by Federal’s payment of the full amount due and owing under the policy less attorney’s fees. Because Dr. Bitz was required to remit one-third of his settlement proceeds to his attorneys, he maintains that he netted far less than the amount of his coverage to which he was entitled because Knox’s negligence “bought him a lawsuit.” The Bitzes thereafter sued Knox in this action to recoup their attorney’s fees paid in the federal coverage action.2 All of the parties correctly concede that under Florida law, an insured may bring an action against his/her agent whose negligence causes the insured to become embroiled in litigation to secure coverage and incur attorney’s fees and costs. See Duncanson v. Service First, Inc., 157 So. 2d 696, 699 (Fla. 3d DCA 1963); see also McLeod v. Continental Ins. Co., 591 So. 2d 621, 626 (Fla. 1992) (finding that attorney’s fees may be considered an element of damages in cases in which the wrongful act of the defendant has caused the plaintiff to become involved in litigation with third parties).
Knox moved for final summary judgment on the grounds that any negligence on his part was not the proximate cause of the insurer’s commencement of the coverage suit against Dr. Bitz. In response, however, the appellants produced competent evidence which indicated that the insurer did not actually rely upon the financial information supplied to them by Knox in initially approving Dr. Bitz for the challenged coverage, but that the insurer later utilized Knox’s “snafu” on the application as a basis for contesting coverage in the suit. Given these conflicting factual scenarios, we conclude that the trial court erred in entering summary judgment in Knox’s favor. See Hudlett v. Sanderson, 715 So. 2d 1050, 1052 (Fla. 4th DCA 1998); Dettloff v. Abraham Chevrolet, Inc., 534 So. 2d 745, 747 (Fla. 2d DCA 1988); Godbey v. Dresner, 492 So. 2d 800, 802 (Fla. 2d DCA 1986). In granting this summary judgment, the trial court obviously elected to believe Knox’s evidence over the appellants’ and thus, in the process, impermissibly encroached upon the province of the trier of fact. See Sasson v. Rockwell Mfg. Co., 715 So. 2d 1066, 1067 (Fla. 3d DCA 1998); Cardet v. Rodriguez, 682 So. 2d 225, 225 (Fla. 3d DCA 1996); Davis v. Hathaway, 408 So. 2d 688, 689 (Fla. 2d DCA 1982); Gorman v. University of Miami, 340 So. 2d 1180, 1181 (Fla. 3d DCA 1976).
We therefore reverse the summary judgment and remand for further proceedings.
Reversed.
. In their action below, the appellants also filed a breach of fiduciary duty count against Knox; judgment was entered in Knox's favor on this count as well. Since the appellants have not challenged the adverse summary judgment entered in this court on this appeal, we treat this issue as abandoned. See Dober v. Worrell, 401 So. 2d 1322, 1323-24 (Fla.1981); R.J. Reynolds Tobacco Co. v. Engle, 672 So. 2d 39, 41 n. 7 (Fla. 3d DCA) review denied, 682 So. 2d 1100 (Fla.1996); Rodriguez v. State, 502 So. 2d 18, 19 (Fla. 3d DCA 1986).
. As a result of Federal’s initial denial of coverage, Dr. Bitz maintained in the action below that he experienced a cash flow problem which forced him to compromise another disability policy and two operating expense policies that he had with another carrier. Although Dr. Bitz asserted that he suffered damages from the settlements, he did not appeal the adverse summary judgment that was entered on this claim, thus, he has abandoned the claim. See Dober, 401 So. 2d at 1323-24; Engle, 672 So. 2d at 41 n. 1; Rodriguez, 502 So. 2d at 19. Accordingly, this claim, like the breach of fiduciary duty claim, shall not be relitigated on remand.
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Consol. Ins. Servs. v. Nakisha Freeman, 848 So. 2d 444 (Fla. 4th DCA 2003)…ent’s failure to secure that [*448] coverage forces the insured to fund its own defense and is, therefore, a legitimate component of damages. See Duncanson v. Serv. First, Inc., 157 So. 2d 696, 699 (Fla. 3rd DCA 1963); Bitz v. Ed Knox Clu & Assocs., 721 So. 2d 823, 824 (Fla. 3rd DCA 1998). Davis’ attorney’s fees are not a component of her damages here because she was not forced to incur those fees as a result of her agent’s failure to procure insurance coverage. She has no contractual agreement or statutory r…
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Vantran Indus., Inc. v. Ryder Truck Rental, Inc., 955 So. 2d 1118 (Fla. 1st DCA 2006)…of the trier of fact by electing to weigh the evidence or adjudging the credibility of the witnesses” when ruling on a motion for summary judgment) (citing Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000); Bitz v. Ed Knox CLU & Assoc., P.A., 721 So. 2d 823 (Fla. 3d DCA 1998)). Accordingly, we reverse the final summary judgment entered in favor of Appellees and remand for a new trial. AFFIRMED in part, REVERSED in part, and REMANDED. WOLF, PADOVANO and THOMAS, JJ., concur.…
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Deakter v. Augusto Menendez, Jr., 830 So. 2d 124 (Fla. 3d DCA 2002)…mine). The court may not encroach on the province of the trier of fact by electing to weigh the evidence or adjudging the credibility of the witnesses. See Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000); Bitz v. Ed Knox CLU & Assoc., P.A., 721 So. 2d 823 (Fla. 3d DCA 1998). The trial court erred in granting summary judgment as there are several genuine issues of material fact which defeat summary judgment. See Young v. Curgil, 358 So. 2d 58, 59 (Fla. 3d DCA 1978) (holding that a cause can be dismis…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Chirogianis v. Anderson, 401 So. 2d 1322 (Fla. 1981)
- R.J. Reynolds Tobacco Co. v. Howard A. Engle, M.D., 672 So. 2d 39 (Fla. 3d DCA 1996)
- McLEOD v. Cont'l Ins. Co., 591 So. 2d 621 (Fla. 1992)
- Duncanson v. Serv. First, Inc., 157 So. 2d 696 (Fla. 3d DCA 1963)
- Hudlett v. Sanderson, 715 So. 2d 1050 (Fla. 4th DCA 1998)
- Brane v. Equitable Leasing Corp., 408 So. 2d 688 (Fla. 2d DCA 1982)
- Kotcherha v. State, 534 So. 2d 745 (Fla. 4th DCA 1988)
- Godbey v. Rosalyn Dresner and Chester B. Triplett, 492 So. 2d 800 (Fla. 2d DCA 1986)
- Strickland v. State, 502 So. 2d 18 (Fla. 5th DCA 1986)
- Gorman v. Univ. OF Miami, 340 So. 2d 1180 (Fla. 3d DCA 1976)