Florida/Georgia Personal Injury & Workers Compensation

...Because insurance company contract writers are ever so much more sophisticated than most insureds who buy the coverage, we urge the increased use of policies whose provisions are written simply and directly so that all who can read will readily understand. This is a goal the legislature had set for automobile insurance in Section 627.421, Florida Statutes (1981), and made more explicit via Section 627.4145, Florida Statutes (Supp....

...ance. 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....

...ive 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....

...as 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....

...nd 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....

...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. When applied here, this holding mandates that both section 627.421 and section 627.428 apply to surplus-lines insurance because neither of those statutory sections appears in part I of chapter 627; rather, sections 627.421 and 627.428 appear in part II of that chapter. [8] See §§ 627.421 ("Delivery of policy"), 627.428 ("Attorney's fees"), Fla....

...(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....

...ex 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....

...r 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....

...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. Section 627.421, Florida Statutes (2003), also does not alter the common-law broker-agency presumption....

...That statute states in relevant part that "[s]ubject to the insurer's requirement as to payment of premium, every policy shall be mailed or delivered to the insured or to the person entitled thereto not later than 60 days after the effectuation of coverage." § 627.421(1), Fla. Stat. (2003) (emphasis supplied). Section 627.421 does not state that the phrase "to the insured or to the person entitled thereto," excludes authorized insurance representative-brokers of the principal-insured....

...tion; (2) the insured disputes that it received a copy of the policy; and (3) the insured fails to present any evidence that its independent insurance representative-broker was actually acting as an agent of the insurer, the insured may not point to section 627.421 as mandating that the insurer was required to deliver a copy of the policy directly to the insured. In these types of situations, a surplus-lines insurer or its direct surplus-lines agent complies with section 627.421's command to deliver a copy of the policy "to the insured or to the person 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....

...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....

...ion, 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....

...defend. This argument must fail. If an insurance company refuses to defend or provide contractual coverage to its insured, then it may expose its policy limits to a third party and faces a breach of contract suit with other statutory remedies (e.g., Section 627.421(1), Florida Statutes) by the insured....

...Ass'n, 736 So.2d 58, 60-61 (Fla. 1st DCA 1999)). We conclude that the general statement in the rental agreement that SLI coverage is subject to other specific exclusions, which are summarized in a separate document available on request, does not satisfy the requirements of section 627.421, Florida Statutes (2002). Section 627.421 requires delivery of every insurance policy to the insured "or to the person entitled thereto" no more than sixty days after the effectuation of coverage. § 627.421(1)....

...The very language of the rental agreement stating that the other specific exclusions to SLI coverage are "summarized on the separate SLI brochure" is a clear indication that the insurer did not intend the rental agreement to be the "summary" mandated by section 627.421....

...Instead, contrary to the statutory requirement, the onus is placed on the customer to ferret out the "summary." We conclude that this instruction to the customer does not constitute delivery within the meaning of the statute. Id. *551 Judge Warner's thoughtful dissent observes that section 627.421 grants sixty days to provide a copy of the policy to insureds like Annis Brooks....

...e supplemental insurance and whether it covers family members. As the majority opinion points out, the rental document simply was silent on the point, only directing the renter to the brochure for more details regarding coverage. I do not think that section 627.421, Florida Statutes (1999), forms a basis for creating coverage, nor do I think it was violated in any event. It does not appear to me that section 627.421 was intended to apply to car rental agreements in which the renters purchased supplemental insurance because the rental agreement is not the policy....

...shirking their duty to defend: If an insurance company refuses to defend or provide contractual coverage to its insured, then it may expose its policy limits to a third party and faces a breach of contract suit with other statutory remedies ( e.g., Section 627.421(1), Florida Statutes) by the insured....

...payments made by the insurer on behalf of the insured. Providing a defense to the insured is not payment of a loss. [4] Argonaut was also cited in Marriott Corp. v. Travelers Indemnity Co., 473 So.2d 281 (Fla. 1st DCA 1985), for the proposition that section 627.421 does not authorize the indemnification of attorney's fees from one insurer to another when both have a duty to defend....

...duty to defend because an insured is adequately protected when its insurer breaches its contract. Argonaut, 372 So.2d at 964 . "All necessary remedies and protection to the proper parties are available to enforce all necessary rights.” Id. (citing section 627.421(1), Florida Statutes).

...he accident, thereby violating the terms of the rental agreement and voiding the SLI coverage. T.H.E. sought declaratory relief, as did McGrath by counterclaim. The trial court granted summary judgment in which it found coverage for two reasons: (1) section 627.421, Florida Statutes (2004), required T.H.E....

...failed to make the required delivery because the rental agreement did not constitute "terms of insurance;" and (2) the exclusion of coverage for driving while intoxicated violates public policy as established in P & H Vehicle Rental and Leasing Corp. v. Garner, 416 So.2d 503 (Fla. 5th DCA 1982). Section 627.421 (1) — Delivery of Copy of Policy We disagree with the trial court that T.H.E.'s failure to deliver a copy of the SLI policy to McGrath invalidated the exclusion for intoxicated drivers....

...with no description of a specific exclusion and directing a renter to a brochure located on a counter is not comparable to the statement in the instant case that provides notice of a specific exclusion in large print and in plain language. Although section 627.421 requires delivery of a copy of an automobile policy within sixty days after the effectual date, no sanction or penalty for noncompliance is prescribed....

...of the rental term, and in view of the occurrence of the accident weeks before delivery of the policy was mandated. Prejudice to the insured should be considered when imposing any sanction for failure to deliver a policy of insurance as required by section 627.421....

...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....

...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....

...ate that, as 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 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). Also relevant to the dispute is Florida Statute § 627.421, which provides: “Subject to the insurer’s requirement as to payment of premium, every policy shall be mailed or delivered to the insured or to the person entitled thereto not later than 60 days after the effectuation of coverage.” Fla. Stat. § 627.421(1). 5  The district court interpreted these two statutory provisions to require delivery of the policy directly to the insured....

...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....

...The parties dispute whether that provision, which we have already quoted, applies to surplus lines insurers at all. 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....

...here, which would have the effect of altering the terms of the insurance contract to create coverage that is not provided for under the policy. See id. Two Florida decisions have addressed whether the appropriate remedy for a violation of § 627.421 is to prevent the insurer from denying coverage. In ZC Ins. Co. v. Brooks, the Fourth District Court of Appeal of Florida found that the insurer had failed to comply with § 627.421 because it had not provided the insured with any information on the exclusion at issue....

...estoppel to create coverage. Id. In the case before us no one contends that there was any fraud, intentional or otherwise. In another case, the Fifth District Court of Appeal refused to extend coverage despite the insurer’s violation of § 627.421....

...acing the notice in large print, in plain language, in the rental agreement.” Id. The court explained that “[p]rejudice to the insured should be considered when imposing any sanction for failure to deliver a policy of insurance as required by section 627.421.” Id....

...at 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 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....

...(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....

...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....

...insurer to deliver a copy of the policy to the insured within a reasonable time period. Id. at 993-94. The Plaintiff argues the Defendant violated an identical Florida law by failing to deliver a copy of the flood insurance policy to the Plaintiff. Section 627.421 of the Florida Statutes provides that "every policy shall be mailed or delivered to the insured ......

...ance Program."); West v. Harris, 573 F.2d 873, 881 (5th Cir.1978) (explaining that the flood insurance program was conceived to achieve policies which are national in scope, and as such mandates the application of federal law). Therefore, Fla. Stat. § 627.421, requiring that the insurer provide a copy of the insurance policy to the insured within 60 days after coverage begins, is inapplicable to this Court's consideration....

...Futrell , 209 F.3d 1286 , 1289 (11th Cir. 2000). The Court rejects Nelson's argument that under Florida law, Nationwide cannot rely on any of the policy exclusions to deny coverage in this case because it failed to deliver the policy to Cooper as required by Florida Statute § 627.421....

...Argument in Opposition to Defendant’s Motion for Summary Judgment. The Provider’s Arguments On appeal, the Provider argues that: (1) State Farm’s Policy and renewal notice violated the plain language of sections 627.413, 627.421, and 627.736(5)(a)5., Florida Statutes, “by not specifying the form numbers and applicable endorsements,” “by not clearly identifying to the insured the applicable ....

...ttached to a policy. This requirement applies to life insurance policies and health insurance policies only at the time of original issue. 5 § 627.413(1), Fla. Stat. (2012) (emphasis added). Section 627.421, in turn, governs delivery of an insurance policy. Subsection (3) states in pertinent part: (3) Any automobile liability or physical damage policy shall contain on the front page a summary of major coverages, conditions, exclusions, and limitations contained in that policy. Any such summary shall state that the issued policy should be referred to for the actual contractual governing provisions. The company may, in lieu of the summary, provide a readable policy. § 627.421(3), Fla....

...ates or numeric codes of all endorsements to the Policy, including the Endorsement at issue here, which was clearly labeled as the “6126LS Amendatory Endorsement” and dated as the 2012 edition. Second, State Farm did not violate anything in section 627.421. State Farm complied with section 627.421(3) because, at a minimum, it provided a “readable policy.” Moreover, section 627.421(4)(e) does not apply in this case. 2 1This provision first appeared in the 2013 statutes, but the Legislature gave it an effective date of July 1, 2012. 2 Effective July 1, 2013, the Legislature added subsection (4) to section 627.421, which states in relevant part: “(4) ....

...For example, the Provider offered no evidence that the Endorsement was not issued with the November 2012 renewal notice or that the insureds were not put on notice of the added to the statute after the Policy in this case was issued. Thus, the Provider’s reliance upon section 627.421(4)(e) is misplaced....