final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Antonio
Marin, Judge. Lower Tribunal No. 13-10766
A. Montaner, for appellant.
White Burnett, P.A., and June Galkoski Hoffman and Rory Eric
Jurman (Fort Lauderdale), for appellee.
ROTHENBERG, LAGOA and SCALES, JJ.
South Medical Center, Inc. ("Kendall South"), the
plaintiff below, appeals a final order dismissing its Fourth
Amended Complaint with prejudice for failure to state a cause
of action against one of the defendants below, Consolidated
Insurance Nation, Inc. d/b/a Insurance Nation
("Insurance Nation"). We have jurisdiction.
See Fla. R. App. P. 9.110(k). Concluding that
Kendall South has sufficiently stated a cause of action for
negligent procurement of an insurance policy, we reverse.
South operates a medical center on leased premises located in
North Miami Beach, Florida. On January 3, 2013, the sprinkler
system on the leased premises was undergoing maintenance when
a leak occurred, resulting in significant water damage to
both the physical improvements (i.e., walls, flooring,
baseboards) and to the contents (i.e., equipment and
machinery) located therein. Kendall South had a commercial
property insurance policy with Nation Insurance-issued in
August 2011, and later renewed-which provided $100, 000 of
coverage for the physical improvements and contents of the
subject property, and which contained a $1, 000 deductible
and a 90 percent coinsurance clause. As a result of the sprinkler
leak, Kendall South suffered property damaging totaling
approximately $260, 000. Kendall South made an insurance
claim, purportedly expecting to receive a $100, 000 payout,
but received only $16, 562.67 due to the policy's
March 2013, Kendall South filed a negligence claim against
the management company for the leased premises, Equity One
Realty & Management, FL., Inc., which allegedly undertook
the work on the sprinkler system. As an affirmative defense,
the management company asserted that Kendall South had failed
to maintain sufficient insurance on the subject premises in
compliance with the parties' lease agreement. In April
2013, Kendall South filed an Amended Complaint, adding a
negligence claim against Countryside Power Sweeping, Inc.,
which allegedly performed the work on the sprinkler system.
The matter was referred to mediation and later set for trial,
which was rescheduled on numerous occasions.
the trial was held, on January 20, 2015, Kendall South was
granted leave to file a Second Amended Complaint in order to
add claims for negligent procurement of insurance and breach
of fiduciary duty against Kendall South's insurer,
Insurance Nation. The lower court then struck the pending
trial date. On February 26, 2015, Insurance Nation
moved to dismiss the two claims against it, claiming that
Kendall South had failed to state causes of action. The trial
court agreed, dismissing the Second Amended Complaint without
31, 2015, Kendall South filed its Third Amended Complaint,
again alleging a claim for negligent procurement of insurance
against Insurance Nation, but dropping the claim for breach
of fiduciary duty. Insurance Nation moved to dismiss the
Third Amended Complaint, alleging that Kendall South had
again failed to state a cause of action. The trial court
agreed, dismissing the Third Amended Complaint without
November 18, 2015, Kendall South filed its Fourth Amended
Complaint, once again alleging a claim for negligent
procurement of insurance against Insurance Nation. In this
pleading, Kendall South alleged that it had met with
Insurance Nation's agent, Humberto Torres, on or about
August 10, 2011, in order to obtain a "a commercial
property coverage policy of insurance in the amount of $100,
000[.]00 that would cover the property, equipment, supplies,
and improvements" of Kendall South.
meeting, after informing the agent that the subject premises
had "office equipment, supplies and furnishings in
excess of $100, 000.00 and that [Kendall South] had spent in
excess of $100, 000.00 for the buildouts, betterments or
improvements" thereon, Kendall South "requested
from [agent] Torres insurance coverage of $100, 000.00 to
cover the property, supplies, furnishings, betterments or
improvements of Kendall South Medical Center, Inc."
Thereupon, "Torres informed [Kendall South] that
Defendant Insurance Nation would procure a commercial policy
of insurance that would cover and protect all the property,