“Under Florida law, negligence claims and breach of fiduciary duty are separate causes of action. Indeed, insurance brokers will often have both a fiduciary duty to their insured- principals and a common-law duty to properly procure requested insurance coverage.”
How later courts described this case
- “Under Florida law, negligence claims and breach of fiduciary duty are separate causes of action. Indeed, insurance brokers will often have both a fiduciary duty to their insured- principals and a common-law duty to properly procure requested insurance coverage.”
- “One of the basic principles of appellate law is that the holding of a decision cannot extend beyond the facts of the case.”
Written by the judges who cited it.
The opinion
FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Case Nos. 5D2024-2352
5D2024-2458
LT Case No. 2021-031544-CICI
_____________________________
BROWN & BROWN OF FLORIDA,
INC.,
Appellant,
v.
HOULIGAN’S PUB & CLUB, INC.,
and ORMOND WINE COMPANY,
LLC,
Appellees.
_____________________________
On appeal from the Circuit Court for Volusia County.
Dennis P. Craig, Judge.
Lawrence P. Ingram, Melissa B. Murphy, and Hoyt L. Prindle, III,
of Porter Wright Morris & Arthur LLP, Tampa, for Appellant.
David A. Vukelja, Ormond Beach, for Appellees.
January 2, 2026
MAKAR, J.
This case of first impression involves damages from a
hurricane that hit the East Coast of Florida almost a decade ago
and the extent to which an insurance broker is responsible for
paying for such damages. The jury entered a verdict in favor of the
insurance broker on the insured’s claim that it was negligent in
failing to procure insurance, but it found in favor of the insured on
claims of breach of fiduciary duty and negligent
misrepresentation. The insurance broker appeals, asserting that
the trial court erred in denying its motions for directed verdict on
these latter two claims; the insurance broker does not contest it
breached its duties on these two claims, only whether the damages
awarded are proper. We reverse and remand for a new trial solely
on damages, but affirm as to all other issues raised on appeal.
I.
Brown & Brown of Florida, Inc. (Brown & Brown), an
insurance agent and broker, assigned agent Chris Tolland, a
specialist in commercial property insurance, to Houligan’s Pub &
Club, Inc. (Houligan’s) and Ormond Wine Company, LLC (Ormond
Wine) to procure commercial property insurance sought by the two
Ormond Beach restaurants. Tolland met with the president and
CEO of Houligan’s and Ormond Wine and made representations to
him about coverages he would be able to procure. The only
insurance he obtained for Houligan’s and Ormond Wine was
through policies underwritten by Lloyd’s of London (Lloyd’s).
In October 2016, Hurricane Matthew impacted Ormond
Beach. Soon thereafter, sewage entered the restaurant properties
through floor drains causing substantial damage. Houligan’s and
Ormond Wine filed claims under their policy with Lloyd’s, but the
insurer sought a declaratory judgment that its policy did not
provide coverage for these types of damages. Three years later, a
detailed final summary judgment in favor of Lloyd’s concluded that
no coverage existed for the claimed damages.
In December 2021, Houligan’s and Ormond Wine filed a three-
count complaint (later amended) against Brown & Brown, alleging
negligent failure to procure insurance, breach of fiduciary duty,
and negligent misrepresentation. After a five-day trial, which
included expert testimony from both sides, the jury found in favor
of Brown & Brown on the negligent procurement of insurance
claim. The jury, however, found that Brown & Brown breached its
2
fiduciary duties and made negligent misrepresentations to
Houligan’s and Ormond Wine, which resulted in damages; in
distributing the percentages of negligence to the parties, the jury
found Brown & Brown to be 60 percent negligent and Houligan’s
and Ormond Wine to be each 40 percent negligent. Houligan’s
damages were $1,079,000 and Ormond Wine’s were $524,186.
Final judgments were entered in the amounts of $647,400 for
Houligan’s and $314,511.60 for Ormond Wine, with both amounts
bearing interest at a rate of 9.34% a year.1
II.
The crux of this appeal is whether the trial court erred by
refusing to direct a verdict for the insurance broker or to grant it a
new trial. The focus is on whether the elements of causation and
damages for the breach of fiduciary duty and negligent
misrepresentation claims are controlled by the First District’s
decision in Capell v. Gamble, 733 So. 2d 534 (Fla. 1st DCA 1998).
On appeal, the insurance broker does not contest that it had a
fiduciary duty to the insureds, which it breached; nor does it
contest that it made negligent misrepresentations to the insureds
(i.e., statements it believed to be true but that it should have
known were false). Instead, the limited issue is whether the
analysis of Capell as to causation and damages for a failure to
procure insurance claims should extend to breach of fiduciary duty
and negligent misrepresentation claims.
First off, the Capell decision dealt only with the “measure of
damages in a negligent procurement of insurance.” Capell, 733 So.
2d at 535. By its terms, Capell did not involve the types of claims
at issue here, namely breach of fiduciary duty and negligent
misrepresentation. As such, the trial court did not err in refusing
to apply Capell to these claims because that decision was not
binding. See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (noting
that trial courts must apply decisions of district courts of appeal
1 The final judgments were later amended to include the
award of prejudgment interest for both Houligan’s and Ormond
Wine, with Houligan’s being awarded an additional $272,465.88
and Ormond Wine an additional $126,460.01.
3
absent inter-district conflict); Miccosukee Tribe of Indians v. Lewis
Tein, P.L., 227 So. 3d 656, 661 (Fla. 3d DCA 2017) (“One of the
basic principles of appellate law is that the holding of a decision
cannot extend beyond the facts of the case.”).
Next is the question of whether the reasoning of Capell should
apply to these two claims. Three different theories of recovery were
pled in this case, each with its own elements and scope of damages.
Due to their differences, the jury was required to be instructed in
accord with each theory of recovery alleged. In this regard, the sole
claim in Capell was the narrowest of the three, failure to procure
insurance, which the First District held must be supported by
evidence or testimony, be it a copy of a standard policy or testimony
about such a policy, to support a finding that the element of
damages was proven. See Capell, 733 So. 2d at 535. The First
District pinned its decision on the notion that an insurer cannot be
liable for failing to procure insurance that did not exist. Id. For this
reason, the holding of Capell is limited solely to the narrow claim
presented, i.e., did the insurer fail to procure a specific insurance
policy that existed?
In contrast, breach of fiduciary duty and negligent
misrepresentation are potentially broader claims that are not
necessarily yoked to the existence of a specific insurance policy. In
this regard, Florida law recognizes separate causes of action for
breach of fiduciary duty and negligent misrepresentation; each is
a distinct theory of recovery. The supreme court has said that the
existence of a fiduciary relationship does not prevent a jury “from
considering both a breach of fiduciary duty claim and a negligence
claim.” Wachovia Ins. Servs., Inc. v. Toomey, 994 So. 2d 980, 990
(Fla. 2008) (“Under Florida law, negligence claims and breach of
fiduciary duty are separate causes of action. Indeed, insurance
brokers will often have both a fiduciary duty to their insured-
principals and a common-law duty to properly procure requested
insurance coverage.”). For this reason, “negligence and breach of
fiduciary duty can be pled in the alternative.” Id.
Notably, this Court has held that proof of available coverage
is not required for claims of breach of fiduciary duty or negligence.
In E&R Environmental Services, LLC v. Sihle Financial Services,
Inc., the trial court ruled that the unavailability of insurance in
4
the marketplace defeated these types of claims against the insurer.
396 So. 3d 624, 628 (Fla. 5th DCA 2024). In reversing, this Court
held that “even if coverage was not available in the marketplace—
as [the insurance broker] maintains—that fact would not
necessarily be fatal to [plaintiff’s] complaint.” Id. at 629.
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, a reasonable jury could find
that even if the insurance [the plaintiff] wanted was
unavailable in the marketplace, [the insurance broker]
should have timely notified [the plaintiff] so that [the
plaintiff] could consider its alternatives.
Id. (internal citations omitted). On this basis, this Court concluded
that the trial court “erred by concluding that the unavailability of
coverage—even if true—was dispositive of E&R’s claims.” Id.
For like reasons, the trial court did not err in declining to
instruct the jury, based on Capell, that proof of available insurance
in the marketplace was required for recovery for breach of
fiduciary duty and negligent misrepresentation claims.2 The
decision in E&R applies directly to claims for breach of fiduciary
duty and no apparent reason exists for not applying it to a
negligent misrepresentation claim. It would have been improper,
however, to limit Brown & Brown’s potential liability under the
fiduciary duty and negligent misrepresentation claims to the
2 It was appropriate, however, for the trial court to allow
Brown & Brown to argue as a defense to all three claims that it
had “procured the insurance coverage specifically requested by
Houligan’s and Ormond Wine Company.” The jury appears to have
considered this defense instruction in finding for Brown & Brown
on the failure to procure claim.
5
existence of an insurance policy in the marketplace when a broader
measure of damages, if proven, is allowable.3
All this said, Brown & Brown persuasively points out that the
jury’s damage award was largely based on the Lloyd’s policy, which
had been held in the prior declaratory judgment litigation to not
provide coverage to Houligan’s or Ormond Wine. That
determination was affirmed by this Court. See Houligan’s Pub &
Club, Inc. v. Certain Underwriters at Lloyd’s, London Subscribing
to Pol’y No. W15F03160301, No. 5D19-3423, 2021 WL 2493292
(Fla. 5th DCA June 15, 2021). As such, it was error to allow the
jury to calculate damages based on a policy that this Court has
said does not provide coverage. Because this error is not harmless,
the appropriate remedy is to remand this matter for a retrial
limited solely to damages without reliance on the Lloyd’s policy;
pre-judgment interest will also have to be recomputed. We affirm
as to all other issues.
AFFIRMED in part; REVERSED and REMANDED for a new trial
on damages only.
BOATWRIGHT and MACIVER, JJ., concur.
3 The measure of damages for a breach of an insurance
contract is generally limited to the loss suffered by the insured or
“should-have-been insured” had they been covered by the
insurance policy, but this measure
is not exclusive. Consequential or resulting collateral
damage may also be recovered if it can be sufficiently
proved. It is possible to recover damages sustained by the
wronged (uninsured) party, not because of the occurrence
of the contingency which should have been insured
against, but because of the breached contract, such as lost
profits.
Travelers Ins. Co. v. Wells, 633 So. 2d 457, 461 (Fla. 5th DCA 1993)
(footnote omitted).
6
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
7