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Alpine Fresh, Inc. v. Washburn

Florida Court of Appeal, Third District

December 14, 2011

ALPINE FRESH, INC., etc., Appellant,
Thomas E. WASHBURN, etc., et al., Appellees.

Rehearing Denied Jan. 19, 2012.

Page 766

Ted H. Bartelstone; Michael Schiffrin, Miami, for appellant.

Cole, Scott & Kissane, and Scott A. Cole, Anne C. Sullivan, and Scott A. Bassman, Miami, for appellees.

Before CORTIÑ AS and ROTHENBERG, JJ., and LEVINE, Associate Judge.

LEVINE, J., Associate Judge.

This appeal presents the issue of whether the settlement agreement between Appellant Alpine Fresh and Zurich American Insurance Company, which released Zurich from liability, also covered Appellees. We conclude the language within the settlement agreement was broad enough to cover Appellees and thus conclude the trial court correctly granted summary judgment in favor of Appellees.

In February 2009, Appellant filed a second amended complaint alleging it retained Appellee Thomas Washburn and his employer, Appellee Wilson, Washburn & Forster, Inc., to procure insurance, but that Appellees failed to obtain adequate insurance for Appellant. Specifically, Appellant, an importer of fruits and vegetables, alleged that Appellees failed to provide adequate insurance coverage to include business interruption coverage and to obtain a marine insurance policy to protect and indemnify Appellant for loss to inventory, either located off-premises or in shipment. Appellant alleged a cause of action for professional negligence against Appellees.

Appellees moved for summary judgment, asserting that because Appellant, by an October 1, 2007, Settlement Agreement and Full Release of All Claims, previously had released Zurich, it inherently also had released Appellees from any and all claims Appellant could have asserted against them. After a hearing, the trial court found that Appellees were agents of Zurich, and, as such, were released from liability. The trial court granted summary judgment in favor of Appellees. This appeal ensues.

The standard of review of an order granting summary judgment on an issue of law is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Appellant claims that Appellees were not released as a result of the settlement between Zurich and Appellant, since Appellees were not agents of Zurich. Appellant claims Appellees merely were insurance brokers who serviced several lines of insurance, including Zurich. The distinction between an insurance agent and insurance broker is pivotal in determining what acts are imputable to the insured or insurer. See Essex Ins. Co. v. Zota, 985 So.2d 1036, 1046 (Fla.2008) (stating that " acts of an agent are imputable to the insurer, and acts of a broker are imputable to the insured" ) (quoting 3 Lee R. Russ & Thomas F. Segalla, Couch on Insurance ยง 45:1 (3d ed.2007)).

The record is clear Appellees acted as, and were understood to be, agents of Zurich. Of most importance is the settlement agreement itself. It said in pertinent part:

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

Page 767

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.

Therefore, the case rests solely on our interpretation of the above plain language of the release between Zurich and Appellant. See Philip Morris Inc. v. French,897 So.2d 480, 488 (Fla. 3d DCA 2004) (" Courts are required to construe a contract as a whole and give effect, where possible, to every provision of the agreement." ). When we consider the above plain language, we conclude the ...

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