The Third District Court of Appeal recently issued a ruling in Alpine Fresh, Inc. v. Washburn, et al., 36 Fla. L. Weekly D2717a (Fla. 3d DCA 2011). The court’s ruling emphasized the importance of the language in a release as well as the factual distinction between an agent and broker, as only the former’s actions are imputable to an insurer.
In February 2009, Alpine Fresh, Inc. brought claims against its insurance agent, Thomas Washburn, and his employer for alleged professional negligence and failure to procure adequate insurance coverage for Alpine’s business. The trial court granted summary judgment in favor of the defendants based on language in an October 2007 release, in which Alpine released the insurance company, Zurich American Insurance Company. In particular, the release provided:
COME NOW, ZURICH AMERICAN INSURANCE COMPANY OF ILLINOIS, on behalf of its agents, servants, successors, assigns, administrators, subsidiaries, independent adjusters, experts, parent and related corporations and/or business organizations of any kind, and attorneys (hereinafter collectively referred to as “ZURICH”), and ALPINE FRESH, INC, . . . does hereby remise, release, acquit, and forever discharge ZURICH from any and all claims, actions, causes of actions, demands, rights, damages, . . . loss of services, expenses, compensation, and obligations towards ALPINE FRESH whatsoever, which ALPINE FRESH now has or which may accrue on account of, or in any way growing out of any and all known and unknown, foreseen and unforeseen claims, made by ALPINE FRESH . . . and/or relating to any assertions, allegations or claims that could be brought in any action, including but not limited to any claim for breach of contract, anticipatory or otherwise, against ZURICH.
The trial court found that, by releasing Zurich, Alpine “inherently . . . released” all claims against the insurance agents that could have been asserted against them. The appellate court affirmed, ruling that the language of the release was broad enough to include insurance agents acting as agents and representatives of Zurich. The appellate court rejected Alpine’s argument that the insurance agents were merely insurance "brokers" that serviced several lines of insurance and, therefore, their actions cannot be imputable to the insurer. As noted by the appellate court, whether a broker is an agent of an insurer depends on the specific facts of a case. The facts showed that Zurich designated in writing that defendants/appellees were “agent for Zurich," they had the authority from Zurich to “write lines of business,” they had signed the insurance policy as “representative of Zurich,” and that it was Alpine's understanding Washburn was a “representative of Zurich” or “representative agent or broker” of Zurich. Based on these facts, the appellate court held that the insurance agents “acted as, and were understood to be, agents of Zurich,” and therefore, their acts are imputable to Zurich. Accordingly, the broad release language in the release covered the defendants.