Gonzalez v. Great Oaks Cas. Ins. Co.

• Decision Date: 12 February 1991
• Docket Number: No. 88-2224,88-2224
• Citation: 16 Fla. L. Weekly 457,574 So.2d 1182
• Parties: 16 Fla. L. Weekly 457 Eduardo GONZALEZ and Griselda Acosta, Appellants, v. GREAT OAKS CASUALTY INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 1182

574 So.2d 1182

16 Fla. L. Weekly 457

Eduardo GONZALEZ and Griselda Acosta, Appellants, v. GREAT OAKS CASUALTY INSURANCE COMPANY, Appellee.

No. 88-2224.

District Court of Appeal of Florida Third District.

Feb. 12, 1991.

Magill & Lewis and R. Fred Lewis, Miami, for appellants.

Ponzoli & Wassenberg and Steven B. Sundook, Miami, for appellee.

Before HUBBART, COPE and GODERICH, JJ.

PER CURIAM.

Eduardo Gonzalez and his stepdaughter Griselda Acosta appeal a summary final judgment in favor of Gonzalez' automobile liability insurer, Great Oaks Casualty Insurance Co. We reverse.

As this is a summary judgment, we construe the record in the light most favorable to the appellants as the nonmoving parties. See e.g., Williams v. Florida Realty & Management Co., 272 So.2d 176, 177 (Fla. 3d DCA 1973). Taken in that light, the record indicates that Gonzalez had from time to time procured automobile insurance policies through the Real Insurance Agency. Real held a Florida license as authorized agent for several insurance companies, but did not hold such a license for Great Oaks at the time pertinent here.

In February, 1985 Gonzalez contacted Real to obtain automobile insurance for a newly acquired vehicle. Gonzalez requested full coverage for the new vehicle and provided information by telephone. Real ascertained that it would be in the best interest of Gonzalez to procure insurance from Great Oaks through Florida's Exchange of Business statute, section 626.752, Florida Statutes (1985). Real had authority to bind coverage for Great Oaks for policies issued under that statute.

Gonzalez testified that payment was made at about that time and was taken to the insurance agency by his wife. He testified that he was not requested to sign an application although his wife signed a premium finance agreement. He was informed by Real that coverage had been bound. The business records produced by Real Insurance Agency contained an entry indicating a binder as of February 8, 1985.

Mr. Gonzalez testified that in March, 1985 he called Real again because he had not received the payment book for the insurance policy. He was assured that the payment book would be forthcoming and that the insurance was in force.

In April, 1985 the stepdaughter, Acosta, sustained injuries while a passenger in a vehicle owned by a third person. Gonzalez contacted Real to make a claim for his stepdaughter and to request insurance cards, which he had not yet received. The claim was forwarded to Great Oaks.

In July, 1985 Great Oaks denied coverage and declared the policy void from its inception. Great Oaks stated that the application submitted by Real Insurance Agency listed only Gonzalez and his wife as drivers of the insured vehicle. Great Oaks indicated it had learned that Acosta was also a licensed driver who operated the vehicle twenty-five percent of the time. Great Oaks deemed that to be a material misrepresentation of fact and on that basis denied coverage.

Litigation ensued in which Gonzalez and Acosta sought coverage for Acosta's injuries, while Great Oaks sought rescission of the insurance policy. Discovery revealed that an application had been forwarded by Real to Great Oaks dated April 11, 1985, several days before the accident. At the bottom of the application, in a space provided for that purpose, Real indicated that coverage was bound effective 4:30 p.m., April 11, 1985. Business records of the insurance agency contain a corresponding entry indicating coverage was bound on that date. The records of the insurance agency, in other words, indicate that coverage was bound both on February 8 and on April 11. The only insurance application produced in the litigation was that dated April 11, 1985.

Although the April 11 application bears a signature of Mr. Gonzalez, Mr. Gonzalez testified that he had not been shown the application and had not signed it. The application was completed by Real and Real signed it, rather than having Mr. Gonzalez sign in person. The application contains a rejection of uninsured motorist coverage. Gonzalez contends that he specifically requested full coverage, and that he did not reject the uninsured motorist coverage.

Gonzalez originally brought suit against Great Oaks, Real, and the premium finance company. After procedural steps not relevant here, Great Oaks moved for summary judgment, which the trial court granted. Gonzalez and Acosta have appealed. Only the claims pertaining to Great Oaks are involved in this appeal.

In support of its motion, Great Oaks made several distinct arguments. First, Great Oaks argued that Real was exclusively the agent of Gonzalez, and was not the agent of Great Oaks. As a result, Great Oaks contended, it could have no liability for any acts or omissions of Real. We disagree.

At the time of the events below, Real was not a state licensed agent for Great Oaks. Real was a licensed agent for several other insurance companies. The Gonzalez insurance...