Insurance Brokers Note: Even If Insurance Unavailable Broker Must Advise Florida Insureds (Copy)

In Brown & Brown of Florida, Inc. v. Houligan’s Pub & Club, Inc., 51 Fla. L. Weekly D49b (Fla. 5th DCA Jan. 2, 2026), an action was brought against an insurance broker after it was determined that insured's claims for hurricane damage were not covered by the procured policy. The loss involved sewage entering several restaurant properties through floor drains after Hurricane Matthew, causing substantial damage, which was ultimately found by a separate declaratory judgment action that the policy did not provide coverage for these types of damages. The appellate court ruled that proof of available insurance in the marketplace was not required for recovery for breach of fiduciary duty and negligent misrepresentation claims. The court reasoned that an insurance agent or broker who agrees or undertakes to procure certain insurance coverage owes his principal a duty to do so within a reasonable time. When the agent fails to do so, even if the agent is not to blame for the failure, he may nevertheless become liable for damages if he fails to inform his principal that the requested insurance has not been procured.

Applying this principle, the court found that a reasonable jury could find that even if the insurance the insured wanted was unavailable in the marketplace, the insurance broker should have timely notified the insured of that fact so that it could consider its alternatives. So on this basis, the appellate court concluded that the insured would be entitled to damages and remanded the case for a new trial on damages only.

This case makes clear that insurance agents and brokers need to be upfront with insureds on what a policy does and does not cover. Failing to do so exposes that insurance agent or broker to damages.

If you are interested in receiving a copy of this decision or wish to discuss this case further, please feel free to contact us at blog@miamimaritimelaw.co or 305.377.3700.

News Flash: Marine Insurance Forum Selection Clause Upheld in Florida

In Wello & Mom, LLC v. Clear Spring Prop. & Cas. Co., 2023 WL 8609239, 2023 Fla. App. LEXIS 8438 (Fla. 3d DCA Dec. 13, 2023, Florida’s Third District Court of Appeals, which encompasses Miami-Dade County has held that a policy's forum selection clause, which required that suits arising under the policy be subject to the exclusive jurisdiction of the federal courts, is enforceable.

On appeal, the insured contended the policy's forum selection clause should be deemed unenforceable as it was not negotiated and deprived it of the right to a jury trial, given the insurer had already filed a separate declaratory judgment action in federal court.

The court surprisingly found that there is a well-entrenched rule of federal admiralty law favoring the enforcement of forum selection clauses in maritime contracts, citing several well-known cases including M/S Bremen v. Zapata Off-Shore Co., Carnival Cruise Lines, Inc. v. Shute and Turner v. Costa Crociere S.p.A.. However none of the cases cited in the decision involved forum selection clauses in marine insurance policies, as claimed in the decision, and none of the cases squarely address Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310 (1955), which held that “the whole judicial and legislative history of insurance regulation in the United States warns us against the judicial creation of admiralty rules to govern marine policy terms…” Wilburn Boat also noted that the “control of all types of insurance companies and contracts has been primarily a state function since the States came into being.”

This latest ruling adds to the anticipation of SCOTUS’ ruling in Great Lakes Insurance SE v. Raiders Retreat Realty Co, LLC, No. 22-500, where the insurer is employing the same M/S Bremen argument requesting SCOTUS to uphold applying a choice of law clause calling for all cases against the insurer to be brought in New York State.

If you are interested in obtaining of copy of this decision or wish to discuss any matter involving marine insurance, please feel free to reach out to me at blog@miamimaritimelaw.co or 305.377.3700.