Access Ins. Planners, Inc. v. Gee, Nos. 4D14–1883

• Court: Court of Appeal of Florida (US)
• Writing for the Court: GROSS, J.
• Citation: 175 So.3d 921
• Parties: ACCESS INSURANCE PLANNERS, INC., a Florida corporation, and Access Insurance Underwriter, LLC, a Florida Limited Liability Company, Appellants, v. Janice S. GEE, Jan Gee Insurance, LLC, Jeff Altizer d/b/a Brookstone Insurance and Wendy Starks, Appellees.
• Decision Date: 30 September 2015
• Docket Number: 4D14–2706.,Nos. 4D14–1883

175 So.3d 921

ACCESS INSURANCE PLANNERS, INC., a Florida corporation, and Access Insurance Underwriter, LLC, a Florida Limited Liability Company, Appellants
v.
Janice S. GEE, Jan Gee Insurance, LLC, Jeff Altizer d/b/a Brookstone Insurance and Wendy Starks, Appellees.

Nos. 4D14–1883
4D14–2706.

District Court of Appeal of Florida, Fourth District.

Sept. 30, 2015.

175 So.3d 922

Douglas M. McIntosh and Kimberly Kanoff Berman of McIntosh, Sawran & Cartaya, P.A., Fort Lauderdale, for appellants.

Daniel E. Oates of Law Offices of Oates & Oates, P.A., Pompano Beach, for appellees.

Opinion

GROSS, J.

The main question here is the application of the statute of limitations to a contract where one party agreed to pay commissions each time it received a commission from an insurance company. We conclude that the contract was divisible, so that the statute of limitations for each commission began to run when a commission was received by the appellants, the defendants below.

We therefore reverse in part and remand for the circuit court to enter an amended final judgment awarding damages only for the premiums received by the defendants after January 11, 2007.

The Pleadings

On January 11, 2011, Janice Gee filed suit against Access Insurance Planners, Inc. and Access Insurance Underwriter, LLC (collectively “Access”) alleging two counts of breach of contract, one claim against each Access company. Among other things, Gee sought damages for past due and unpaid commissions.

Access raised several affirmative defenses, including the statute of limitations. In addition, Access raised four counterclaims: (I) Fraud/Misrepresentation, (II) Unjust Enrichment, (III) Trade Secret Violation, and (IV) Injunctive Relief.¹

Gee filed a reply to Access's affirmative defenses, asserting that the claims were not time barred because the causes of action did not begin to accrue until Access stopped making payments to her. Additionally, Gee filed an answer to the counterclaims,

175 So.3d 923

which raised several affirmative defenses.

The Evidence at Trial²

At the bench trial, Gee established the existence of an employment agreement and Access's breach of that agreement by failing to pay her commissions.

In July 2004, Gee met with Phillip Wardell, who ran Access. The parties entered into an employment agreement where Gee would “self-generate” insurance business for Access and Access would pay a commission on this business.

Wardell provided Gee a written “Job Description” which gave sample commissions and approximations on percentages and splits based on different scenarios. Wardell agreed to pay Gee a commission equal to 50% of the “gross commission”—the amount paid by an insurer to Access—on group life and health policies and 25% on property and casualty policies. When an agent such as Gee sold a policy, the insurer would pay the initial commission to Access. A renewal commission also was paid to Access if the policy was renewed. After receiving such initial and renewal commissions, Access was to pay Gee her share.

Gee began work with Access on July 1, 2004. She first became suspicious in September 2007 when she discovered that she had not been paid all of her 2005 commissions.

Beginning in October 2009, through a series of e-mails, Gee and Wardell communicated about the payment discrepancies. They were unable to come to a final resolution. Wardell procrastinated and put Gee off by conceding that there were some errors and by pleading a temporary financial inability to make corrective payments. Gee also had difficulty obtaining information on the gross commissions paid by the insurers, and she did not acquire certain information until January 8, 2010. Tensions between the parties continued to mount and eventually Gee was terminated in September 2010.

The Trial Court's Ruling

On all claims, the trial judge found in favor of Gee. Regarding the statute of limitations, the judgment did not specify why the statute did not bar any of Gee's claims or when any specific breach occurred. It simply stated that:

[w]hether Gee's cause of action accrued in September 2007, when she merely noticed her checks were less, on January 8, 2010, when the “gross” was disclosed, in July 2010, when she first discovered concealment of a L & H commission, or in September 2010, when Wardell repudiated the agreement, Gee's causes of action for breach of an oral agreement accrued within the 4–year Statute. 95.11(3)(k), Fla. Stats.

On Gee's breach of contract claims, the court entered a final judgment for $100,038.28 against Access, which included renewal commissions and prejudgment interest.

The Parties' Contract Was Divisible, So the Statute of Limitations Began to Run at the Time of Each Discrete Breach

Access views this case as a single contract where the initial breach occurred on March 21, 2005;³ it argues that since

175 So.3d 924

the breach of contract cause of action accrued on that date, the statute of limitations ran on March 21, 2009, making Gee's claims untimely. However, for statute of limitations purposes, the proper view of the parties' agreement was that it was a divisible contract, meaning that the failure to pay each commission was a separate breach subject to its own four-year statute of limitations.

Generally, “the issue of whether [a] claim is barred by the statute of limitations is a question of law subject to de novo review.” Beltran v. Vincent P. Miraglia, M.D., P.A., 125 So.3d 855, 859 (Fla. 4th DCA 2013) ; Fox v. Madsen, 12 So.3d 1261, 1262 (Fla. 4th DCA 2009). However, the...