Opinion
No. 76-2030.
December 27, 1977. Rehearing Denied January 30, 1978.
Appeal from the Circuit Court for Dade County, John Red Lake, J.
Smith, Mandler, Smith, Werner Jacobowitz, Joe N. Unger and Mark King Leban, Miami, for appellant.
Onett-Colodny and Glenn T. Harris, North Miami, for appellee.
Before PEARSON, HUBBART and KEHOE, JJ.
The plaintiff Cranbrook Club, Ltd. appeals from a final judgment entered upon the involuntary dismissal at trial of the plaintiff's cause of action against its insurance agent, the defendant Harry Hurst and Associates, Inc. The plaintiff had sought the return of an insurance premium which it had paid to the defendant on the basis that the defendant had allegedly failed to forward as directed the said premium to the plaintiff's insurer Calvert Fire Insurance Co. The evidence is uncontradicted that the defendant did in fact forward the premium as required to Calvert's designated agent and that an insurance policy was in fact issued to the plaintiff. Nine or ten months later, Calvert cancelled the policy claiming nonpayment of premium. We conclude that the defendant under these circumstances breached no duty which it owed to the plaintiff as an insurance agent under the rule stated in Jones v. Central National Bank Trust Co., 110 Fla. 262, 148 So. 765 (1933). The plaintiff's cause of action, if any, lies against Calvert Fire Insurance Co. for unjustifiably cancelling the insurance policy herein.
Affirmed.
This is an appeal from a final judgment pursuant to an involuntary dismissal of plaintiff's cause at the conclusion of plaintiff's case in a trial before the court without jury. See Fla.R.Civ.P. 1.420(b). It is my view that the majority has failed to apply the rule set forth in Jones v. Central National Bank Trust Co., 110 Fla. 262, 148 So. 765 (1933), where the court, citing to Mechem on Agency, said:
* * * * * *
"`It is the duty of every agent, when no other arrangement is made, to bring to the performance of his undertaking, and to exercise in such performance, that degree of skill, care and diligence which the nature of the undertaking and the time, place and circumstances of the performance ordinarily and reasonably demand. A failure to do this, whereby the principal naturally and proximately suffers loss or injury, constitutes negligence for which the agent is responsible.'"
The facts presented by the plaintiff present an issue of the liability of the defendant insurance agent for the agent's failure to follow through upon its undertaking on behalf of the plaintiff. I would, therefore, reverse for a trial of the issue.