Florida/Georgia Personal Injury & Workers Compensation

...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. A. The Scope of Section 627.021 A number of the issues presented in the Zota litigation involve provisions of chapter 627, Florida Statutes (2003). Essex, however, contends that by force of section 627.021(2)(e), chapter 627—in its entirety—does not apply in any way to surplus-lines insurance. See § 627.021(2)(e), Fla....

...626.913-626.937." (emphasis supplied)). While it is understandable that Essex may advance a literal reading of this *1042 provision when taken in isolation, contrary to Essex's position, this Court has previously held that—under a full statutory analysis—section 627.021(2) applies exclusively to part I of chapter 627....

...M/V Manaure V, 511 So.2d 968, 970-71 (Fla. 1987); §§ 627.011-627.381, Fla. Stat. (2003) (part I of chapter 627). Furthermore, the relevant legislative materials, as well as the structure and organization of chapter 627, demonstrate that the exclusionary provisions of section 627.021(2) only relate to "the ratings laws of part I, chapter 627, F.S.," as this Court has previously held....

...19, carton 1831, Tallahassee, Fla.) [hereinafter ch. 88-166 Staff Analysis] (emphasis supplied); see Manaure V, 511 So.2d at 970-71; see generally ch. 627, Fla. Stat. (2003). In National Corporacion Venezolana, S.A. v. M/V Manaure V, this Court addressed the question of whether section 627.021(2)(c), Florida Statutes (1983), excluded marine insurance from section 627.7262, [6] which is the section that generally provides that a third party must obtain a judgment against an insured-tortfeasor before filing a direct action against an insurer. See 511 So.2d 968, 969 (Fla. 1987). Section 627.021(2) appears in part I of chapter 627, whereas section 627.7262 appears in part XI of chapter 627. See id. at 969-71. We held in Manaure V that while section 627.021(2) uses the language "[t]his chapter does not apply to," the Legislature actually intended for the word "chapter" to refer to " Chapter 16 `Rates and Rating Organizations.'" Id....

...cement in the Florida Statutes, it renamed and renumbered " Chapter 16 `Rates and Rating Organizations,'" as " Part I `Rates and Rating Organizations.' " Id. (emphasis supplied). Thus, the Legislature only intended for the exclusionary provisions of section 627.021(2) to apply to " Part I `Rates and Rating Organizations,'" not chapter 627 as a whole....

...the Legislature and to *1043 conclusions inconsistent with the general purpose of the act. Id. at 20 (emphasis supplied). Thus, pursuant to this Court's holding in Manaure V, where the Legislature clearly intended for the exclusionary provisions of section 627.021(2) to apply exclusively to part I of chapter 627, but the Statutory Revision Department erroneously failed to alter some of the relevant statutory language, this Court is bound to interpret section 627.021(2) consistent with the Legislature's true intent and inconsistent with the Statutory Revision Department's scrivener's error. See Manaure V, 511 So.2d at 969-71. In 1988, the Legislature amended section 627.021 by adding another item to the exclusionary provisions that appear in subsection (2), which was the same statutory subsection that this Court examined in Manaure V. Specifically, the Legislature added "[s]urplus lines insurance." See ch. 88-166, § 2, Laws of Fla.; § 627.021(2)(d), Fla....

...Lombardi, 770 So.2d 1196, 1202 (Fla.2000)). Therefore, when the Legislature passed chapter 88-166, it presumably discerned and consulted this Court's Manaure V decision in determining the prospective effect of adding "surplus lines insurance" to the exclusionary provisions of section 627.021(2)....

...The relevant legislative materials and common sense also confirm the accuracy of this presumption as applied in the instant case: the Legislature knew and specifically intended that in adopting chapter 88-166, its newly enacted surplus-lines exclusionary provision (i.e., section 627.021(2)(d), Florida Statutes (Supp....

...Furthermore, the structure and organization of chapter 627 support this Court's Manaure V decision and the legislative intent expressed in the Staff Analysis. Chapter 627 is divided into twenty-one parts and contains nine separate "scope of this part," "application of this part," or "scope" provisions, in addition to section 627.021, which is also entitled "Scope of this part. " §§ 627.021 (emphasis supplied), 627.401, 627.451, 627.501, 627.601, 627.676, 627.801, 627.911, 627.9403, 627.981, Fla....

...`The title is more than an index to what the section is about or has reference to; it is a direct statement by the legislature of its intent.'" *1044 (quoting State v. Webb, 398 So.2d 820, 824-25 (Fla.1981))). Thus, if this Court were to read the scrivener's error literally, and thereby apply the exclusionary provisions of section 627.021(2) to all of chapter 627, it would render many of these "scope of this part " provisions superfluous and would also directly contradict the title of section 627.021: "Scope of this part....

...Statutory interpretations that render statutory provisions superfluous are, and should be, disfavored. " (emphasis supplied) (internal quotation marks omitted)). This undesirable result would occur under a literal reading of the scrivener's error because many of the above-cited provisions exclude the same topical items as section 627.021, which raises the question why would the Legislature exclude duplicative items under separate "scope of this part" provisions when section 627.021(2) had already done so for all of chapter 627? The simple answer is that the Legislature never intended that result, as explained by this Court in Manaure V and by the Staff Analysis addressing chapter 88-166, Laws of Florida....

...s-lines insurance. This type of assertion directly contradicts express legislative intent and this Court's Manaure V decision. See 511 So.2d at 969-71; ch. 88-166 Staff Analysis at 4. The correct interpretation is that the exclusionary provisions of section 627.021(2) apply only to the ratings laws found in part I of chapter 627....

...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 insu...

...in this action against Essex). 466 F.3d at 990 n. 1. [6] The Legislature subsequently renumbered section 627.7262 as section 627.4136, Florida Statutes (Supp.1992). See ch. 92-318, § 37, Laws of Fla. [7] This surplus-lines exclusion is now found in section 627.021(2)(e), Florida Statutes (2007) (the 2003 version is identical in relevant part)....

...t the Florida procedure, if it is procedure, would override. In other cases pending before this court and awaiting this decision, the contention is made that the new version of § 627.7262 does not embrace maritime insurance in view of Fla.Stat.Ann. § 627.021(2) 4 , producing a result that maritime insurers are still subject to the Shingleton common law rule and may be the subject of direct actions while other kinds of insurers have the protection of the § 627.7262 bar against direct actions....

...n available to a third party against an insurer under Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969). National Corporacion Venezolana, S.A. v. M/V Manaure V, 791 F.2d 137 (11th Cir.1986). However, in light of the marine insurance exclusion found in section 627.021(2), Florida Statutes (1983), the court certified the following question as being determinative of the cause: Does Florida law recognize a right of direct action against a marine liability insurer in a cargo damage action accruing after October 1, 1982? National Corporacion Venezolana, 791 F.2d at 138....

...action brought on a tort has matured to a judgment. The statute is quite clear that no cause of action against an insurance company shall accrue until a judgment against an insured is obtained. Id. at 882. National Corporacion Venezolana argues that section 627.021 unambiguously excludes marine insurance from chapter 627 and thus from section 627.7262. Section 627.021 reads in part: Scope of this part....

...a particular part of the law, the intention should prevail, for that in fact, is the will of the Legislature.'" Van Pelt v. Hilliard, 75 Fla. 792, 804, 78 So. 693, 696 (1918), quoting Curry v. Lehman, 55 Fla. 847, 854, 47 So. 18, 20 (1908). Reading section 627.021 in pari materia with the remainder of chapter 627 indicates that the legislature did not intend to exclude marine insurance from all parts of chapter 627. Chapter 627, entitled "Insurance Rates and Contracts," is one of nine chapters which make up the Florida Insurance Code. Chapter 627 is divided at this time into eighteen parts. The marine insurance exclusion of section 627.021 is located in part I, entitled "Rates and Rating Organizations." Section 627.7262, the nonjoinder statute, is located in part XI, entitled "Motor Vehicle and Casualty Insurance Contracts." Two sections expressly dealing with marine insurance, sections 627.409 and 627.420, are located in part II, entitled "The Insurance Contract." The presence of these latter two sections in chapter 627 thus indicates that the legislature did not intend to extend section 627.021's exclusion to all parts of chapter 627. A look at the legislative histories of the Florida Insurance Code and section 627.021 is instructive....

...Chapter 16, "Rates and Rating Organizations," was redesignated as part I of chapter 627. The Department made certain editorial changes to bring the language of the Code into conformity with the redesignated chapters. With that background in mind, it is clear from a comparison of the language of sections 627.011 and 627.021, Florida Statutes (1959), as enacted and as edited by the department for publication, that the marine insurance exclusion was intended to apply only to part I, "Rates and Rating Organizations." When enrolled, sections 627.011 and 627.021, originally numbered sections 412 and 413, read in pertinent part as follows: CHAPTER 16 RATES AND RATING ORGANIZATIONS ......

...marine, as distinguished from inland marine, insurance policies. (3) For the purposes of this chapter all motor vehicle insurance shall be deemed to be casualty insurance only. *971 Ch. 59-205, Laws of Florida (emphasis added). Sections 627.011 and 627.021, as edited and published by the Statutory Revision Department, read in pertinent part: PART I RATES AND RATING ORGANIZATIONS ... . 627.011 Short title. — Part I of this chapter may be referred to as "the rating law." 627.021 Scope of part I....

...insured under marine, as distinguished from inland marine, insurance policies. (3) For the purposes of this chapter, all motor vehicle insurance shall be deemed to be casualty insurance only. (Additions underscored). It is clear from the language of section 627.021 as enrolled that the word "chapter" refers only to "Rates and Rating Organizations" rather than to chapter 627 in toto. Indeed, since chapter 627 was not so designated until edited by the Statutory Revision Department, "chapter" as originally employed in the rating law could not have referred to chapter 627. This analysis of section 627.021's legislative history, coupled with the presence within chapter 627 of other sections expressly dealing with marine insurance, leads us to the conclusion that the marine insurance exclusion is limited to part I of chapter 627....

...air the insureds’ vested rights and, therefore, would be unconstitutional. We disagree with both rationales. Retroactivity In June 2008, the Florida Supreme Court issued Essex Insurance Co. v. Zota, 985 So.2d 1036 (Fla.2008). The court opined that section 627.021(2)(e), Florida Statutes (2003), which stated that “[t]his chapter does not apply to: ......

...he intent behind the legislation. It stated: Historically, surplus lines insurers have not been subject to the insurance regulatory requirements in ch. 627, F.S., as authorized insurers due to a specific exemption provision for surplus lines under [ section 627.021(2) ]....

...627, F.S., except where specifically stated, do not apply to surplus lines insurance. [[Image here]] [T]he legislation provides that the provisions of the bill will operate retroactively to October 1,1988, the effective date of a law enacted in 1988 adding the surplus lines exemption to [section 627.021], Thus, the bill exempts surplus lines insurance from the provisions of ch....

...[3] Therefore, the FSLSO has not created, adopted, or approved any forms which a surplus lines insurer could use to comply with the offers authorized by Section 627.701(8). Aspen also points to language in Chapter 627 of the Florida Statutes in support of its argument that the provision does not apply. Specifically, Section 627.021(2)(e) states that "[t]his chapter does not apply to ..." "[s]urplus lines insurance placed under the provision of ss....

...Therefore, Aspen contends, the understanding at the time the Policy was issued was that the requirement did not apply to surplus lines insurers. 2) Analysis First, the Court is not persuaded by the opinion of the FSLSO, a "self-regulating *1361 organization," as to what the Legislature intended by Sections 627.701(8) or 627.021(2)(e)....

...In addition, despite Aspen's argument that the Essex case came out after the Policy was issued, the Court does not find that surplus lines insurers were excluded from the provision. Prior to that case, the Florida Supreme Court had already addressed the wording of Section 627.021(2) and found that it only applied to part I of Chapter 627....

...The Florida Supreme Court explained in National Corporacion Venezolana, S.A. v. M/V Manaure V, 511 So.2d 968, 970 (Fla.1987) as follows: Chapter 627, entitled "Insurance Rates and Contracts," is one of nine chapters which make up the Florida Insurance Code. Chapter 627 is divided at this time into eighteen parts ... section 627.021 is located in part I, entitled "Rates and Rating Organizations" ......

...The original thirty-three chapters were redesignated as parts and their sections were renumbered. Chapter 16, "Rates and Rating Organizations," was redesignated as part I of chapter 627. The Florida Supreme Court had already held that it was clear under "a full statutory analysis-[that] section 627.021(2) applies exclusively to part I of chapter 627." Essex, 985 So.2d at 1041-1042 (citing M/V Manaure V, 511 So.2d at 970-71; Fla....

...§§ 627.011-627.381 (2003) (part I of chapter 627)). Therefore, when the Legislature added "surplus lines insurance" to the exclusionary provisions, it "knew and specifically intended that in adopting chapter 88-166, its newly enacted surplus-lines exclusionary provision (i.e., section 627.021(2)(d), Florida Statutes (Supp....

...ge did not encompass the entire Chapter, and thus, the surplus lines exclusion would have only been in regards to Part I, just as with the analysis of the marine exclusion in the M/V Manaure V case. Accordingly, the Court finds that the exclusion of Section 627.021(2)(e) did not apply to the entire chapter of 627 and thus surplus lines insurers were not excused from the deductible provision in Section 627.701(8) at the time the Policy was enacted....

marine insurers. Compare Fla.Stat.Ann. § 627.-021(2)(c) (“This chapter does not apply to ... [ijnsurance

...n which the recovery is had. Fla. Stat. § 627.428(1). Section 627.428 is found in Part II of Chapter 627. Essex challenges the application of § 627.428 to surplus lines insurers, arguing that under the plain language of Fla. Stat. § 627.021, none of Chapter 627 applies to them. Section 627.021 is found in Part I of Chapter 627 and is entitled “Scope of this part.” Fla. Stat. § 627.021 (emphasis added)....

.... (a) Reinsurance, except joint reinsurance as provided in s. 627.311. . . . 16  (e) Surplus lines insurance placed under the provisions of ss. 626.913–626.937. Fla. Stat. § 627.021(2) (emphasis added). Essex argues that no statutory construction is necessary because the language of § 627.021(2)(e) is clear on its face. The defendants respond with a number of arguments. First, they contend that the title of § 627.021 indicates that the legislature intended that only Part I of Chapter 627 not apply to surplus lines insurers....

...That section is found in Part II of Chapter 627 and entitled “Scope of this part.” It provides: No provision of this part of this chapter applies to: (1) Reinsurance. . . . Fla. Stat. § 627.401. The defendants argue that if § 627.021 did apply to the whole chapter there would be no need for the legislature to include reinsurance in § 627.401 because it would already be excluded from all of chapter 627. Second, the defendants point to two Florida decisions that hold § 627.428 applies to surplus lines insurers....

...Swain Groves, Inc., 218 So. 2d 453 (Fla. 4th DCA 1969), the court held that § 627.0127 (which is now § 627.428) applied to a surplus lines insurer. Id. at 458. Thereafter, in 1988, the 17 Florida legislature amended § 627.021 to add the provision: “This chapter does not apply to ....

...2d 1162 (Fla. 3d DCA 1995). In answering the question the same way it had in English before the amendment, the court’s only discussion was to block quote the relevant portion of the English decision. See id. at 1162. It did not mention the amendment to § 627.021. Essex argues that Chacin is flawed because it relied on English without taking note of the language of § 627.021 which excludes surplus lines insurance from chapter 627....

...The defendants argue that Chacin is the law of Florida and must be applied. They note that Chacin was decided more than ten years ago and there has been no legislative action on the subject since then. The district court agreed with the defendants regarding the meaning of § 627.021. It reasoned: The titles of both sections, “Scope of this Part,” indicate that the exclusions only apply to each part, and not the entire chapter. Furthermore, had the legislature intended for § 627.021 to apply to the entire chapter, it would not have included “Reinsurance” under both sections §§ 627.[021] and 627.401....

...This interpretation is also in accordance with the court’s decision in Chacin . . . . Plaintiff contends that the holding in Chacin is no longer applicable because it relied on the decision in English . . . which was based on § 627.021 prior to its amendment. . . . Plaintiff’s argument lacks merit, however, given that Chacin was decided after the amendment to Fla. Stat. § 627.021....

...In Chacin, the court did not exclusively cite the decision in English, but made specific mention of the relevant statutes in their amended form. Therefore, the Court finds that the holding in Chacin is still good law. Essex contends that, although the title of § 627.021 might create some ambiguity, the language of § 627.021(2)(e) is clear on its face....

...On June 26, 2008, the Florida Supreme Court issued its opinion in Essex Ins. Co. v. Mercedes Zota, et al., 985 So.2d 1036 (Fla.2008). With regard to the application of the Florida CAS to surplus line insurers in light of the exclusionary language in Fla. Sta. 627.021(2)(e), the court held that under a full statutory analysis, section 627.021(2) applies only to Part I of Chapter 627....

...of its finding. See Defendants' Reply, DE 221, and exhibits attached thereto. The CNL Court premised its finding on the Zota II decision where the Florida Supreme Court stated that: this Court has previously held that-under a full statutory analysis-section 627.021(2) [3] applies exclusively to part I of chapter 627....

...M/V Manaure V, 511 So.2d 968, 970-71 (Fla.1987); §§ 627.011-627.381, Fla. Stat. (2003) (part I of chapter 627). Furthermore, the relevant legislative materials, as well as the structure and organization of chapter 627, demonstrate that the exclusionary provisions of section 627.021(2) only relate to "the ratings laws of part I, chapter 627, F.S.," as this Court has previously held ......

...rincipal purposes of the coverage or that its use would be contrary to the purposes of this Surplus Lines Law with respect to the reasonable protection of authorized insurers from unwarranted competition by unauthorized insurers. [3] Florida Statute § 627.021 provides that: (1) This part of this chapter applies only to property, casualty, and surety insurances on subjects of insurance resident, located, or to be performed in this state....