Pierce v. AALL Ins. Inc., 86-828
| Decision Date | 13 August 1987 |
| Docket Number | No. 86-828,86-828 |
| Citation | 12 Fla. L. Weekly 2001,513 So.2d 160 |
| Parties | 12 Fla. L. Weekly 2001 Donald PIERCE and Michele Pierce, his wife, Appellants, v. AALL INSURANCE INCORPORATED, a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
David D. Guiley of Maher, Overchuck and Langa, Orlando, for appellants.
Linda F. Wells of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Orlando, for appellee.
This is an appeal from a summary judgment in a negligence case. The issue regards the statutes of limitations and whether the two-year professional malpractice statute applies to this lawsuit.
Appellant alleges his insurance agent improperly, negligently, advised him about his options regarding insuring his automobile. He says that as a result of this negligence, or misconduct, he did not have uninsured motorist coverage and suffered financial loss.
If one alleges a cause of action sounding in professional malpractice then the statute of limitations requires the suit to be filed within two years of the discovery of malpractice. 95.11(4)(a), Florida Statutes (1983). If the cause of action is for other negligence then the statute of limitations is four years. 95.11(3)(a), Florida Statutes (1983).
Appellants argue that an insurance agent is not a "professional" and thus the professional malpractice statute should not apply to bar the suit. They say the breach of the duty to advise them about uninsured motorist coverage involves an ordinary negligence cause of action because "[t]raditionally, actions for 'malpractice' in American jurisprudence have been held applicable to predominantly doctors and lawyers." Appellants are correct that traditionally only a few persons could call themselves professionals. Doctors, lawyers, teachers, ministers, engineers, architects and a few others come to mind. But "tradition" has been overcome in modern times, with lawyers hawking their wares in public advertisements, doctors forming vertical corporations offering all sorts of health-related services and supplies, and architects and engineers becoming builders and landlords, too. The image of these "professionals" has changed, as well as their practices. Others have come under the umbrella of professional, one of whom, in our opinion, is the insurance agent who acts as advisor, law-interpreter, and provider of the "best package" for his clients. The good hands of Allstate and the Travelers' umbrella, along with others, tout their expertise exactly like those doctors, lawyers and dentists who assault us on television about their worth.
Rather than look to the title of the person being sued it is better now to look to the act done which injures. If the act is one which involves giving advice, using superior knowledge and training of a technical nature, or imparting instruction and recommendations in the learned arts then the act is one of a professional. One person, a professional, can do two different acts; one of a professional nature, the other not. For example, a doctor while treating a patient for the gout can tell him about a hot stock-market tip. If that tip does not provide profit it can hardly be said that the doctor committed professional malpractice, any more than a broker's attempt to treat gout can be deemed such malpractice. There are shadings between various acts, and persons performing them.
Here the act was failing to give proper advice by one of superior training, knowledge and experience. That is an act of one who is within Webster's definition of profession, "a calling requiring specialized knowledge and often long and intensive academic preparation." Webster's New Collegiate Dictionary (1979). The plaintiffs/appellants chose their cause of action and defined the tort as one of failing to give proper advice. That sounds just like professional malpractice. It is professional malpractice. If it had been alleged appellee had negligently failed to deliver a particular insurance policy after having been instructed to do so, perhaps another statute would apply. We think this case is similar to Cristich v. Allen Engineering, Inc., 458 So.2d 76 (Fla. 5th DCA 1984) where this court held that a land surveyor is a professional within the statute and pointed out that the particular acts complained of there involve more than merely negligently injuring someone. They involved the unusual acts of properly carrying out the locating and defining of land boundaries. To do such involves knowledge and skills greater than is common and requires knowledge of mathematics, geography and other physical sciences.
Because the acts claimed to be tortious involve alleged professional negligence or misconduct, the two-year statute applies and the trial judge correctly so ruled.
We certify to the Supreme Court of Florida the following question as one of great public importance:
I respectfully dissent because based on this record, the two year professional malpractice statute of limitations is inapplicable and therefore does not bar the Pierces' cause of action against AALL Insurance Incorporated as a matter of law.
Ironically, the consequence of being categorized as a "professional," rather than imposing a higher duty or standard of care on the provider of the service, excuses AALL from any liability in this lawsuit. Normally, a "professional" is exposed to additional ethical and moral obligations. DeVaney v. Rumsch, 228 So.2d 904 (Fla.1969). The term "professional malpractice" is not defined in section 95.11(4)(a), Florida Statutes (1985), and has received a narrow construction by the courts. Therefore, I would follow the approach suggested by this court in Cristich v. Allen Engineering, Inc., 458 So.2d 76 (Fla. 5th DCA 1984) and deny the applicability of the two-year statute to insurance agents or agencies, as a general rule.
In Cristich we held that a land surveyor regulated and licensed by the Department of Professional Regulation, Chapter 472, committed professional malpractice when he negligently prepared a survey of a condominium project, knowing it would be relied upon by owners and developers. In that case, we emphasized Cristich, 458 So.2d at 79. We noted that in order to sit for an examination to obtain a license, a person must have graduated from a university surveying program, and have worked for two years in land surveying under a professional land surveyor. An alternative was eight years of experience working for a land surveyor. We also took note that land surveying required knowledge and application of various disciplines: mathematics, geography, and the physical...
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