Don Slack Ins., Inc. v. Fidelity & Cas. Co. of New York

• Decision Date: 11 June 1980
• Docket Number: No. NN-50,NN-50
• Citation: 385 So.2d 1061
• Court: Florida District Court of Appeals
• Parties: DON SLACK INSURANCE, INC., Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellee. /T1-49.

Page 1061

385 So.2d 1061

DON SLACK INSURANCE, INC., Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellee.

No. NN-50/T1-49.

District Court of Appeal of Florida, Fifth District.

June 11, 1980.

Rehearing Denied July 17, 1980.

Fred S. Disselkoen, Jr., of Duffett, Seps & Akers, Ormond Beach, for appellant.

Robert K. Rouse, Jr., of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellee.

SHARP, Judge.

Don Slack Insurance, Inc., (the third party defendant and appellant) appeals the final judgment entered against it after a jury trial, on a cross claim filed by Fidelity &amp Casualty Company of New York (the third party plaintiff and appellee). We reverse the judgment because there is no basis in the record to hold the third party defendant liable to the third party plaintiff.

Thomas V. Wicker filed a complaint against Fidelity for insurance benefits due him under an insurance policy issued by Fidelity, after being in an auto accident on February 19, 1977. Fidelity claimed the insurance had been cancelled and was not in effect at the time of the accident. It also filed a third party complaint against Don Slack Insurance, Inc.

Fidelity notified Wicker on August 24, 1976, it intended to cancel his insurance policy for failure to pay premiums. On September 19, 1976, through Don Slack, an independent insurance agency, Wicker sent Fidelity a $50.00 check to reinstate the policy. The check was accompanied by Wicker's request to issue endorsements changing the vehicles covered under the policy. Fidelity sent Slack two endorsements implementing the requested changes, and Slack sent copies of them to Wicker. The endorsements were effective October 10, 1976 more than a month after the announced effective date of the cancellation. Wicker received no further communications from Fidelity or Slack, and he assumed the insurance police was reinstated.

On November 17, 1976, Slack received a form letter from Fidelity stating it was cancelling Wicker's policy "pro-rata" because of "nonpayment" of premiums, but without any reference to the endorsements or to Wicker's check. On December 3, 1976, Slack received a "return of premium statement" from Fidelity regarding Wicker, showing $105.00 "earned" premium, $64.00 "unearned premium," and $40.00 to be returned. On December 10, Slack received a check from Fidelity in the amount of $40.00 payable to Wicker. Slack endorsed the check and deposited it in the business account. At the trial, Slack testified he realized Fidelity was refusing to reinstate the policy for Wicker, and that normally he should have contacted Wicker. He thought he had notified Wicker, but apparently Wicker received no such communication from him.

The jury returned a verdict for Wicker against Fidelity. The basis for this verdict is clear and is adequately supported by the record. Fidelity's endorsements of the policy after its notice of cancellation, making the requested changes in coverage and showing a new effective date for the endorsements of "10/10/1976 to 2/26/1977," was tantamount to a reinstatement of the policy. See Prudential Ins. Co. of America v. Seabrook, 366 So.2d 482 (Fla. 1st DCA 1979). Fidelity's later notice to Slack attempting to cancel the policy was legally ineffective. ¹

The jury also returned a verdict for Fidelity against Don Slack Insurance, Inc., thereby shifting the loss from the insurance company to the independent insurance agent who obtained the policy initially for the insured. In order to sustain this judgment, there must be some basis in the record to sustain the liability of Slack to Fidelity. Food Fair Stores of Florida, Inc. v. Sommer, 111 So.2d 743 (Fla. 3d DCA 1959); Madden v. Gorum, 250 So.2d 342 (Fla. 1st DCA 1971). Fidelity claimed it was entitled to "indemnity" from Slack because of Fidelity's undertaking to insure Wicker. But insurance agents are not automatically indemnitors for the insurance companies with whom they place insurance coverage for customers, and there is no evidence of any written or oral agreement by Slack to indemnify Fidelity.

Fidelity also argued Slack made negligent misrepresentations to it that Wicker had been informed of Fidelity's attempted cancellation. Essential elements of the tort of misrepresentation are the making of a false statement by the tortfeasor and reasonable reliance thereon by the injured party. But the record shows no communications or representations were made by Slack to Fidelity after Slack became aware of Fidelity's attempt to cancel Wicker's policy for failure to pay...