Burgos v. Independent Fire Ins. Co.

• Decision Date: 29 May 1979
• Docket Number: No. 78-1746,78-1746
• Citation: Burgos v. Independent Fire Ins. Co., 371 So.2d 539 (Fla. App. 1979)
• Parties: Alejandro Quiles BURGOS and Paulita Ortez Burgos, his wife, Appellants, v. INDEPENDENT FIRE INSURANCE COMPANY, a Florida Corporation, Delta Insurance Corporation, a Florida Corporation, and Metropolitan Mortgage Company, a Florida Corporation, jointly and severally, Appellees.
• Court: Florida District Court of Appeals

Page 539

371 So.2d 539

Alejandro Quiles BURGOS and Paulita Ortez Burgos, his wife, Appellants, v. INDEPENDENT FIRE INSURANCE COMPANY, a Florida Corporation, Delta Insurance Corporation, a Florida Corporation, and Metropolitan Mortgage Company, a Florida Corporation, jointly and severally, Appellees.

No. 78-1746.

District Court of Appeal of Florida, Third District.

May 29, 1979.

Spiegelman & Spiegelman and Robert I. Spiegelman, Miami, for appellants.

Stanley H. Spieler, Miami, for appellees.

Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.

PER CURIAM.

Plaintiff property owners appeal an adverse summary final judgment for defendant insurance agents in an action to recover damages for alleged negligent failure to obtain insurance coverage.

Plaintiffs, Alejandro Burgos and his wife, are the owners of certain improved real property encumbered by a first mortgage. Metropolitan Mortgage Company was the servicing agent for the mortgagee. Delta Insurance Company obtained for Burgos a fire insurance policy issued by Independent Fire Insurance Company covering the subject property from June 29, 1974 to June 29, 1975. In May, 1975 Independent, through its general agent, Southern Underwriters, issued a renewal certificate extending the policy from June 29, 1975 to June 29, 1976. Burgos tendered the $102 renewal premium to Delta, which in turn remitted it to Independent. Before the renewal became effective, Independent on June 9, 1975 cancelled the policy and its agent, Southern, mailed the cancellation notice to Burgos and a copy of the notice to Delta as originating agent. In October, 1975 the Burgos property was damaged by fire and a claim was filed with Independent which denied coverage on the basis that the policy had been cancelled. Burgos and his wife filed the instant suit against Independent, ¹ Delta and Metropolitan (with whom Delta is now merged) alleging that the defendants, Delta and Metropolitan, are liable for failing to inform them of the cancellation and further for failing to procure a replacement policy. Delta and Metropolitan answered denying the allegation that Burgos and his wife were not informed and alleged that replacement insurance was unobtainable. Subsequently, Delta and Metropolitan moved for summary judgment which after hearing was granted in their favor.

Burgos and his wife appeal and contend that there was a genuine issue of material fact as to whether Delta and Metropolitan, as agents or brokers, had a duty to procure replacement insurance and then failed to do so. They basically argue that since they were not notified of the cancellation and Delta retained the premium, they were led to believe that fire insurance had been procured on the subject property; therefore, Delta and Metropolitan are liable for failing to procure replacement coverage.

Delta in...