Cat 'N Fiddle, Inc. v. Century Ins. Co.

• Decision Date: 13 June 1967
• Docket Number: No. 66--350,66--350
• Parties: CAT 'N FIDDLE, INC., a Florida corporation, operating and doing business as Cat'N Fiddle Restaurant & Lounge, Appellant, v. The CENTURY INSURANCE COMPANY, Limited, a corporation organized and existing under the laws of New York and Hurst Insurance Agency, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 208

200 So.2d 208

CAT 'N FIDDLE, INC., a Florida corporation, operating and doing business as Cat'N Fiddle Restaurant & Lounge, Appellant, v. The CENTURY INSURANCE COMPANY, Limited, a corporation organized and existing under the laws of New York and Hurst Insurance Agency, Inc., a Florida corporation, Appellees.

No. 66--350.

District Court of Appeal of Florida, Third District.

June 13, 1967.

Rehearing Denied July 6, 1967.

Lurie, Lesperance & Goethel, Miami, for appellant.

Wicker, Smith, Pyszka, Blomqvist & Davant, Miami, (for century Ins. Co.).

Knight, Underwood, Peters, Hoeveler & Pickle, Miami, (for Hurst Insurance Agency, Inc.).

Before CHARLES CARROLL, BARKDULL and SWANN, JJ..

CHARLES CARROLL, Judge.

This is an appeal by the plaintiff below from a judgment for defendants entered on a directed verdict.

The plaintiff, operating a restaurant and lounge, engaged Hurst Insurance Agency, Inc., herein referred to as Hurst, to obtain fire insurance covering the assets of the business. The parties considered the premises to be of a value that would justify $100,000 fire insurance and Hurst recommended insurance be obtained in that amount. The insurance which Hurst was able to obtain was $70,000, in two policies issued by Century Insurance Company, Limited, a New York Corporation, herein referred to as Century.

The policies were not delivered to plaintiff, but to Hurst, and with plaintiff's approval were retained by Hurst. Subsequently Century cancelled its policies. Hurst accepted the cancellation, and upon encountering some difficulty in placing other insurance, obtained and substituted a policy from another insurer in the amount of $30,000.

The plaintiff was informed of the initial coverage of $70,000 when it was obtained by Hurst from Century, but Hurst did not inform the plaintiff of the subsequent cancellation thereof by Century nor of the fact that a policy for only $30,000 was obtained by it in replacement.

At that stage of the matter a fire occurred which totally destroyed the 'insured' property. After the fire, plaintiff learned of the cancellation by Century and of the $30,000 replacement policy. Notice of loss and proof of claim were submitted by plaintiff to Century, which denied liability based on its prior cancellation. Plaintiff filed an action against the substitute insurer on the $30,000 policy and received payment of $25,000 thereon in settlement.

This action was brought by plaintiff against Century and Hurst. One count sought recovery from Century, on the theory that the Century policies were in effect at the time of the fire. Two counts were filed against Hurst. One charged it with negligence in failing to notify plaintiff of the cancellation, when it occurred, of the $70,000 coverage by Century. The other count charged Hurst with negligence in failing to keep the property insured for $70,000.

On the trial of the cause, at the close of plaintiff's case the court granted motions of the defendants for directed verdict and entered judgment thereon, from which the plaintiff has appealed contending the court erred in directing a verdict for defendants, and by excluding certain evidence offered to prove the cash or market value of the property destroyed by the fire.

The trial court was eminently correct in directing a verdict for Century. Applicable in the circumstances presented was the general rule that notice to an agent is notice to the...