Florida/Georgia Personal Injury & Workers Compensation

...useful guidance. However, below, the United States District Court for the Southern District of Florida ("the federal district court") appears to have based the entry of a summary judgment in favor of the Appellees upon an interpretation of sections 626.922 and 627.421, Florida Statutes (2003), that would alter our prior precedent in this area....

...Broward Executive Builders, and Jack Farji] filed motions for summary judgment in th[e] declaratory action. Essex contended that the terms of Lighthouse's policy preclude coverage. The defendants contended that Essex had violated Florida Statutes §§ 626.922 and 627.421 by not delivering the policy to Lighthouse and, therefore, Essex was precluded from denying coverage....

...The [federal] district court agreed with the defendants' first contention and granted their motion for summary judgment, declaring that Essex was precluded from denying coverage because it had failed to deliver the policy to the insured, as required by Florida Statutes *1041 §§ 626.922 and 627.421.[ [4] ] The defendants subsequently filed a motion for attorney's fees under Florida Statute § 627.428....

...[5] ] Essex has appealed both orders. Zota II, 466 F.3d at 982-83 (emphasis supplied). After probing the issues raised thus far in the Zota litigation, the Eleventh Circuit certified the following five questions to this Court: 1. Whether Fla. Stat. § 626.922 or § 627.421, or both, require delivery of evidence of insurance directly to the insured, so that delivery to the insured's agent is insufficient. 2. Whether, if the delivery requirement of Fla. Stat. § 626.922 or § 627.421, or both, was not met in this case the appropriate remedy is to preclude the insurer from asserting lack of coverage under the terms of the policy....

...undecided and underdeveloped factual questions. Therefore, we decline to address those questions in lieu of the federal district court. We conclude by answering the first certified question in the negative and, in the process, we hold that sections 626.922 and 627.421, Florida Statutes (2003), have not abrogated the common-law agency analysis that this Court has previously applied in insurance-broker cases....

...[8] See §§ 627.421 ("Delivery of policy"), 627.428 ("Attorney's fees"), Fla. Stat. (2003); see also Chacin v. Generali Assicurazioni Generali Spa, 655 So.2d 1162, 1162-63 (Fla. 3d DCA 1995) (holding that attorney's fees are awardable against surplus-lines insurers under section 627.428). B. The Significance of Sections 626.922 and 627.421 Having reaffirmed Manaure V and its explanation of the scope of section 627.021, Florida Statutes, we now address the first certified question, which we rephrase as follows: Whether section 626.922 or section 627.421, Florida Statutes (2003), or both, require delivery of evidence of insurance directly to the insured, so that delivery to the insured's representative—acting as an independent insurance broker in the transaction—is insufficient....

...y of the Essex CGL policy. Therefore, under Almerico, Brandon's receipt of the Essex CGL policy constituted delivery to its principal, Lighthouse Intracoastal. See 716 So.2d at 776-82; see also 3 Russ & Segalla, supra §§ 45:5, 45:10. iii. Sections 626.922 and 627.421 Do Not Alter the Common-Law Rule It is a well-settled rule of Florida statutory construction that [s]tatutes in derogation of the common law are to be construed strictly....

...equivocal terms, for the presumption is that no change in the common law is intended unless the statute is explicit in this regard. Carlile v. Game & Fresh Water Fish Comm'n, 354 So.2d 362, 364 (Fla.1977) (emphasis supplied). Accordingly, for either section 626.922 or section 627.421 to alter the common-law broker-agency presumption, those statutes were required to announce that intention in explicit, unequivocal terms. However, neither statute does so. In relevant part, section 626.922(1) states that [u]pon placing a surplus lines coverage, the surplus lines agent shall promptly issue and deliver to the insured evidence of the insurance consisting either of the policy as issued by the insurer or, if such policy is n...

...ny evidence of coverage or certificate of insurance which the producing agent issues or delivers. Any evidence of coverage issued by a producing agent pursuant to this section must include the name and address of the authorizing surplus lines agent. § 626.922(1), Fla. Stat. (2003) (emphasis supplied). *1049 Based on the plain text of section 626.922, [11] we presume that in drafting this statute, the Legislature did not use the terms "deliver" and "issue" synonymously....

...State, 678 So.2d 330, 332 (Fla.1996) ("It is, of course, a general principle of statutory construction that the mention of one thing implies the exclusion of another; expressio unius est exclusio alterius." (quoting Thayer v. State, 335 So.2d 815, 817 (Fla.1976))). When examining the text of section 626.922, it is apparent that the Legislature only intended to prevent surplus-lines agents from delegating " the duty to issue " surplus-lines policies. The nondelegation rule does not concern policy delivery: "A surplus lines agent may not delegate the duty to issue any such document to producing general lines agents without prior written authority from the surplus lines insurer. " § 626.922(1), Fla....

...policy is not then available, a certificate, cover note, or other confirmation of insurance." Id. (emphasis supplied). Delivery of the policy to the principal-insured's independent representative-broker would, therefore, remain a viable option under section 626.922(1)....

...t—a rule limited to record-keeping: " The producing agent must maintain copies of the written delegation from the surplus lines agent and copies of any evidence of coverage or certificate of insurance which the producing agent issues or delivers. " § 626.922(1), Fla. Stat. (2003) (emphasis supplied). That sentence does not alter the fact that in imposing the policy-issuance non-delegation rule, the Legislature intentionally omitted the word "deliver." Section 626.922 thus does not unequivocally alter the common-law broker-agency presumption because the portion of the statute that Appellees rely upon for that proposition does not even mention the word "delivery." Moreover, even if this Court were to refer to legislative materials to aid in the construction of section 626.922, those materials support our interpretation. The Senate Staff Analysis and Economic Impact Statement states that the Legislature's *1050 1998 amendment of section 626.922(1) "specifie[d] conditions under which a surplus lines agent may delegate to a producing agent the requirement to provide documentation of coverage to an insured." Fla....

...See Black's Law Dictionary 178 (8th ed.2004) (" bind, vb. 1. To impose one or more legal duties on (a person or institution) . 2. Hist. To indenture; to legally obligate to serve."). Thus, even after resorting to extrinsic legislative materials, it remains clear that section 626.922(1)'s policy-issuance nondelegation rule has nothing to do with policy "delivery," and, therefore, the common-law broker-agency presumption emerges unscathed....

...son entitled thereto," by delivering a copy of the policy to the insured's undisputed, independent representative-broker (e.g., R.A. Brandon & Company in this case). See § 627.421(1), Fla. Stat. (2003). As stated above, the same result occurs under section 626.922: when a surplus-lines insurer or its direct surplus-lines agent delivers a copy of a surplus-lines policy to the insured's independent representative-broker, that delivery constitutes delivery to the insured....

...oker was actually an agent of the insurer. See 716 So.2d at 782-83; see also 3 Russ & Segalla, supra §§ 45:5, 45:10. However, the Appellees have not done so in this case. Accordingly, we answer the first certified question in the negative: neither section 626.922 nor section 627.421, Florida Statutes (2003), requires delivery of evidence of insurance directly to the insured, so that delivery to the insured's independent representative-broker is insufficient. In situations such as this, delivery of a surplus-lines policy to the insured's undisputed, independent representative-broker constitutes delivery to the insured; nothing in sections 626.922 and 627.421 alters this result....

...judgment action, we decline to address all but one of the five certified questions. Based on the rule from Almerico and the common-law broker-agency presumption, we answer the first certified question in the negative: no language present in sections 626.922 and 627.421, Florida Statutes (2003), precludes a surplus-lines insurer or its direct surplus-lines agent from delivering a copy of the coverage documents to the insured's independent representative-broker instead of directly to the insured....

...Milan's primary argument was that this estoppel arose because Lloyds and/or International Brokerage and Surplus Lines (IBSL), [1] the surplus lines agent through whom the insurance had been issued, had failed to comply with the notice and delivery requirements of Florida Statutes sections 627.421 and 626.922, and the insured had not otherwise been provided notice of the garaging warranty. Section 627.421 requires delivery of the insurance policy not more than sixty days after effectuation of coverage. See § 627.421(1), Fla. Stat. (2008). Section 626.922 requires the surplus lines agent to "promptly issue and deliver to the insured" either the policy or, if the policy is not "then available, a certificate, cover note, or other confirmation of insurance" showing, among other things, "coverage, conditions, and term of the insurance." § 626.922(1), Fla. Stat. Section 626.922(4) provides that "[a] copy of the policy or cover note or confirmation of insurance shall be delivered to the insured within 60 days after the effectuation of coverage." In support of his motion for summary judgment, Milan filed an af...

...Lloyds also did not challenge in its written response Milan's claim that he was not otherwise provided notice of the garaging warranty. Instead, Lloyds *92 argued that it could not be estopped from relying upon the garaging warranty to deny the claim as a consequence of any failure to comply with sections 627.421 and 626.922 because Florida law expressly provides that the doctrines of estoppel and waiver may not be applied to create or extend insurance coverage....

...a matter of law, the insurer was estopped from resorting to the garaging warranty to deny the claim. Provisions of Forfeiture versus Provisions of Coverage On appeal, Lloyds argues that, regardless of any failure to comply with sections 627.421 and 626.922, or the failure to provide the insured with the binder, the policy or other notice of the garaging warranty prior to the loss, the summary judgment was entered in error because Florida law holds that the doctrines of estoppel and waiver cannot be applied to create or extend insurance coverage....

...In the district court, both Essex and the defendants filed motions for summary judgment in this declaratory action. Essex contended that the terms of Lighthouse’s policy preclude coverage. The defendants contended that Essex had violated Florida Statutes §§ 626.922 and 627.421 by not delivering the policy to Lighthouse and, therefore, Essex was precluded from denying coverage....

...The district court agreed with the defendants’ first contention and granted their motion for summary judgment, declaring that Essex was precluded from denying coverage because it had failed to deliver the policy to the insured, as required by Florida Statutes §§ 626.922 and 627.421. The defendants subsequently filed a motion for attorney’s fees under Florida Statute § 627.428....

...The district court granted that motion and entered a judgment for fees and costs against Essex and in favor of Lighthouse, Broward and Farji. Essex has appealed both orders. IV. 4  Central to the legal dispute is Florida Statute § 626.922, which provides as follows: Upon placing a surplus lines coverage, the surplus lines agent shall promptly issue and deliver to the insured evidence of the insurance consisting either of the policy as issued by the insur...

...tificate of insurance which the producing agent issues or delivers. Any evidence of coverage issued by a producing agent pursuant to this section must include the name and address of the authorizing surplus lines agent. Fla. Stat. § 626.922(1)....

...Lighthouse, the court held that Essex had failed to comply with these statutes. The court concluded that as a penalty or sanction for its failure to comply with the delivery provisions Essex could not use the language of the policy against Lighthouse to bar coverage. Section 626.922(1) requires that the surplus lines agent, MacDuff in this case, deliver evidence of the insurance to the insured....

...D’Amico, 528 So. 2d 533, 534 (Fla. 2d DCA 1988); see also Prudential Ins. Co. v. Latham, 207 So. 2d 733, 735 (Fla. 3d DCA 1968); United Nat’l Ins. Co. v. Jacobs, 754 F. Supp. 865, 869 (M.D. Fla. 1990). However, the district court noted that § 626.922 was amended in 1998 and it pointed out that none of the relevant decisions addressed the post-amendment version of § 626.922. The court then concluded that the plain language of § 626.922 requires delivery directly to the insured, and delivery to the insured’s agent will suffice only where there is a written delegation of authority to do that. By its terms, the first sentence of § 626.922(1) requires a surplus lines agent 6 to issue and deliver evidence of insurance to the insured. Fla. Stat. § 626.922(1) (“the surplus lines agent shall promptly issue and deliver to the insured evidence of the insurance . . . .”). The fourth sentence (the written delegation rule) states that the surplus lines agent may not delegate the duty to issue the evidence of insurance without prior written authorization from the surplus lines insurer. Fla. Stat. § 626.922(1) (“A surplus lines agent may not delegate the duty to issue any such document to producing general lines agents without prior written authority from the surplus lines insurer.”)....

...Finally, the next to last sentence of the subsection provides that “[t]he producing agent must maintain copies of the written delegation from the surplus lines agent and copies of any evidence of coverage or certificate of insurance which the producing agent issues or delivers.” Fla. Stat. § 626.922(1) (emphasis added). The parties in this case dispute the relevance of the amendment to § 626.922 and the legislative history behind that amendment. Before the 1998 amendment, § 626.922 provided: Upon placing a surplus lines coverage, the surplus lines agent shall promptly issue and deliver to the insured evidence of insurance consisting of either the policy as issued by the insurer or, if such p...

...nes agent. The producing agent must maintain copies of the written delegation from the surplus lines agent and copies of any evidence of coverage or certificate of insurance which the producing agent issues or delivers. Fla. Stat. § 626.922(1). The district court found that the 1998 amendment, which added the written delegation rule to § 626.922, superceded the rule from Florida case law that delivery to the insured’s agent constitutes delivery to the insured. The district court also found that § 627.421(1) applies to this case and requires delivery to the insured....

...Essex contends that it is inapplicable but, argues that even if it does apply, the delivery requirement is satisfied by the delivery of the policy to Lighthouse’s agent. The defendants argue that § 627.421 does apply to surplus lines insurers and that, like § 626.922, it can only be satisfied by delivery directly to the insured. If there was a violation of § 626.922 or § 627.421, the next question is whether the appropriate remedy is to preclude the insurer from asserting lack of coverage under the terms of the policy....

...the policy in that case because the rental agreement itself gave him notice of the exclusion. Id. If the district court erred in holding that Essex was precluded from asserting lack of coverage because of its violation of Florida Statutes §§ 626.922 and 627.421, then the Court must determine whether Essex was entitled to judgment based on two relevant coverage exclusions in the policy....

...As we have explained, there are a number of unresolved issues of Florida law in this case. The Florida Supreme Court is the only body that can definitively decide them. Therefore, we certify the following questions to that Court: 1. Whether Fla. Stat. § 626.922 or § 627.421, or both, require delivery of evidence of insurance directly to the insured, so that delivery to the insured’s agent is insufficient. 2. Whether, if the delivery requirement of Fla. Stat. § 626.922 or § 627.421, or both, was not met in this case the appropriate remedy is to preclude the insurer from asserting lack of coverage under the terms of the policy. 3....

...The Defendant filed notice of the offer of judgment and a verified motion to tax costs and fees. The two primary issues in the case prior to and during trial were whether there was delivery of the policy and whether the delivery of the truck was under constant surveillance. If Florida Statutes § 626.922 applies to the surplus lines statute and the policy was not delivered prior to the incident, then the Defendant would be precluded from denying coverage based on any condition listed in the policy, including the requirement that the trailer be under constant surveillance....

...ional insured under the Policy for the Zota claim. In their original Motion for Summary Judgment, Defendants contended that they were entitled to summary judgment because Essex failed to deliver the Policy to Lighthouse in compliance with Fla. Stat. § 626.922....

...The Court granted Defendants' Motion for Summary Judgment and denied Plaintiffs Renewed Motion for Summary Final Judgement. ("District Court Order," DE 119). The Court found that Essex and its surplus lines agent failed to deliver the Policy and its exclusions to Lighthouse as required by Fla. Stat. §§ 626.922(1) and 627.421....

...) Plaintiff appealed the District Court Order. (Notice of Appeal, DE 150.) C. Zota I The Eleventh Circuit Court of Appeals in Zota I stated that if the district court erred in holding that Essex was precluded from asserting lack of coverage because of its violation of Florida Statutes §§ 626.922 and 627.421, then the Court must determine whether Essex was entitled to judgment based on the two coverage exclusions....

...The Eleventh Circuit Court of Appeals did not resolve the issues on appeal. Rather, Zota I certified a number of questions to the Florida Supreme Court because they involved unresolved issues of Florida law. The certified questions include: 1. Whether Fla. Stat. § 626.922 or § 627.421, or both, require delivery of evidence of insurance directly to the insured, so that delivery to the insured's agent is insufficient. 2. Whether, if the delivery requirement of Fla. Stat. § 626.922 or § 627.421, or both, was not met in this case the appropriate remedy is to preclude the insurer from asserting lack of coverage under the terms of the policy....

...licy. 5. If Lighthouse is entitled to coverage, whether Fla. Stat. § 627.428 applies to surplus lines insurers. Id., at 990. D. Zota II The Florida Supreme Court determined that the answer to question one was "no." There was "no language present in section 626.922 and 627.421, Florida Statutes (2003), [that] precludes a surplus insurer or its direct surplus lines agent from delivering a copy of the coverage document to the insured's independent representative-broker instead of direct to the insured." Essex Ins....

...Moreover, as Plaintiffs note, "[a]ny surplus lines agent who knowingly or negligently issues a false certificate, cover note, or confirmation of insurance ... shall, upon conviction, be subject to the penalties provided by s. 624.15 or to any greater applicable penalty otherwise provided by law." Fla. Stat. § 626.922(5)....