deMarlor v. Foley Carter Ins. Co.
| Decision Date | 25 June 1980 |
| Docket Number | No. 79-1321,79-1321 |
| Citation | 386 So.2d 22 |
| Parties | Calvin deMARLOR, d/b/a the Upperdeck Restaurant, Appellant, v. FOLEY CARTER INSURANCE COMPANY, a Florida Corporation, J. H. Gardner Gould, and Employers Reinsurance Corporation, Appellees. |
| Court | Florida District Court of Appeals |
Jere M. Fishback of Jenkins, Fischer & Brook, St. Petersburg, for appellant.
Thomas Saieva of Woodworth & Saieva, St. Petersburg, for appellees.
Appellant filed this action for damages allegedly sustained when appellees (1) breached their contractual duty to procure adequate insurance on his restaurant, and (2) breached their fiduciary duty to him by conspiring with others to deprive him of such insurance proceeds as did become available when the restaurant was destroyed by fire. The case came on for trial by jury, but after appellant presented his evidence the court directed a verdict for appellees on both causes of action. We reverse.
The dispositive rule governing this case is that in ruling on a motion for directed verdict the court must consider only the evidence and inferences favorable to the nonmoving party, and ignore evidence favorable to the movant. Carson v. Gulf Oil Corp., 123 So.2d 35 (Fla. 2d DCA 1960). A motion can be granted only if, viewed in that light, there is no evidence which would support a verdict for the opposing party. Ahearn v. Florida Power and Light Co., 129 So.2d 457 (Fla. 2d DCA 1961).
The instant record contains evidence which, if believed, could lead reasonable men to conclude that appellant took a copy of his restaurant lease to appellees, discussed his insurance needs and his obligation to insure the premises in which his restaurant was located, and instructed appellees to procure all of the coverage required by the lease; that appellees promised to do so but failed to obtain fire insurance on the structure, although the lease expressly and clearly required appellant to procure such coverage. To compound that nonfeasance, there is evidence from which the jury might conclude that appellees were obligated to advise appellant that such coverage had not been obtained, but that appellant was not made aware of the omission until after the fire.
We believe the evidence could support a verdict for appellant on his first cause of action. An insurance agent or broker who agrees or undertakes to procure certain insurance coverage owes his principal a duty to do so within a reasonable time. If, through his own fault or neglect, he fails to do so, he may become liable for any resultant damages. Even when he is not to blame for the failure to obtain coverage the agent may nevertheless become liable for damages if he fails to inform his principal that the requested insurance has not been procured. Cat 'n Fiddle, Inc. v. Century Insurance Co., 200 So.2d 208 (Fla. 3d DCA 1967). 1
As for the second cause of action, the record contains evidence indicating, if believed, that when appellees received the proceeds from the insurance written on appellant's restaurant business, their officers connived with another client (the owner of the restaurant building, who had originally recommended appellees to appellant) to hold up distribution of the money on the pretext it had not arrived, until a suit could be filed by the owner to tie up the funds and recover damages for appellant's failure to procure the insurance on the restaurant structure that the lease required. The law...
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