Access Insurance Planners, Inc. and Access Insurance Underwriter, LLC v. Janice S. Gee, Jan Gee Insurance, LLC, Jeff Altizer d/b/a Brookstone Insurance and Wendy Starks

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

ACCESS INSURANCE PLANNERS, INC., a Florida corporation,
and ACCESS INSURANCE UNDERWRITER, LLC, a Florida
Limited Liability Company,
Appellants,

v.

JANICE S. GEE, JAN GEE INSURANCE, LLC, JEFF ALTIZER d/b/a
BROOKSTONE INSURANCE and WENDY STARKS,
Appellees.

Nos. 4D14-1883
and 4D14-2706

[September 30, 2015]

Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No.
11-000705 CACE (12).

Douglas M. McIntosh and Kimberly Kanoff Berman of McIntosh,
Sawran & Cartaya, P.A., Fort Lauderdale, for appellants.

Daniel E. Oates of Law Offices of Oates & Oates, P.A., Pompano Beach,
for appellees.

GROSS, J.

The main question here is the application of the statute of limitations
to a contract where one party agreed to pay commissions each time it
received a commission from an insurance company. We conclude that the
contract was divisible, so that the statute of limitations for each
commission began to run when a commission was received by the
appellants, the defendants below.

We therefore reverse in part and remand for the circuit court to enter
an amended final judgment awarding damages only for the premiums
received by the defendants after January 11, 2007.
 The Pleadings

On January 11, 2011, Janice Gee filed suit against Access Insurance
Planners, Inc. and Access Insurance Underwriter, LLC (collectively
“Access”) alleging two counts of breach of contract, one claim against each
Access company. Among other things, Gee sought damages for past due
and unpaid commissions.

Access raised several affirmative defenses, including the statute of
limitations. In addition, Access raised four counterclaims: (I)
Fraud/Misrepresentation, (II) Unjust Enrichment, (III) Trade Secret
Violation, and (IV) Injunctive Relief.1

Gee filed a reply to Access’s affirmative defenses, asserting that the
claims were not time barred because the causes of action did not begin to
accrue until Access stopped making payments to her. Additionally, Gee
filed an answer to the counterclaims, which raised several affirmative
defenses.
The Evidence at Trial2

At the bench trial, Gee established the existence of an employment
agreement and Access’s breach of that agreement by failing to pay her
commissions.

In July 2004, Gee met with Phillip Wardell, who ran Access. The parties
entered into an employment agreement where Gee would “self-generate”
insurance business for Access and Access would pay a commission on this
business.

Wardell provided Gee a written “Job Description” which gave sample
commissions and approximations on percentages and splits based on
different scenarios. Wardell agreed to pay Gee a commission equal to 50%
of the “gross commission”–the amount paid by an insurer to Access–on
group life and health policies and 25% on property and casualty policies.
When an agent such as Gee sold a policy, the insurer would pay the initial
commission to Access. A renewal commission also was paid to Access if

1Two former employees were also sued as defendants in Counts III and IV.
2This evidence is stated in the light most favorable to Gee, the prevailing party.
See Blue Paper, Inc. v. Provost, 914 So. 2d 1048, 1049 (Fla. 4th DCA 2005) (citing
Darrow v. Moschella, 805 So. 2d 1068, 1069 (Fla. 4th DCA 2002)).

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the policy was renewed. After receiving such initial and renewal
commissions, Access was to pay Gee her share.

Gee began work with Access on July 1, 2004. She first became
suspicious in September 2007 when she discovered that she had not been
paid all of her 2005 commissions.

Beginning in October 2009, through a series of e-mails, Gee and
Wardell communicated about the payment discrepancies. They were
unable to come to a final resolution. Wardell procrastinated and put Gee
off by conceding that there were some errors and by pleading a temporary
financial inability to make corrective payments. Gee also had difficulty
obtaining information on the gross commissions paid by the insurers, and
she did not acquire certain information until January 8, 2010. Tensions
between the parties continued to mount and eventually Gee was
terminated in September 2010.

The Trial Court’s Ruling

On all claims, the trial judge found in favor of Gee. Regarding the
statute of limitations, the judgment did not specify why the statute did not
bar any of Gee’s claims or when any specific breach occurred. It simply
stated that:

[w]hether Gee’s cause of action accrued in September 2007,
when she merely noticed her checks were less, on January 8,
2010, when the “gross” was disclosed, in July 2010, when she
first discovered concealment of a L&H commission, or in
September 2010, when Wardell repudiated the agreement,
Gee’s causes of action for breach of an oral agreement accrued
within the 4-year Statute. 95.11(3)(k), Fla. Stats.

On Gee’s breach of contract claims, the court entered a final judgment for
$100,038.28 against Access, which included renewal commissions and
prejudgment interest.

The Parties’ Contract Was Divisible, So the Statute of Limitations
Began to Run at the Time of Each Discrete Breach

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 Access views this case as a single contract where the initial breach
occurred on March 21, 2005;3 it argues that since the breach of contract
cause of action accrued on that date, the statute of limitations ran on
March 21, 2009, making Gee’s claims untimely. However, for statute of
limitations purposes, the proper view of the parties’ agreement was that it
was a divisible contract, meaning that the failure to pay each commission
was a separate breach subject to its own four-year statute of limitations.

Generally, “the issue of whether [a] claim is barred by the statute of
limitations is a question of law subject to de novo review.” Beltran v.
Vincent P. Miraglia, M.D., P.A., 125 So. 3d 855, 859 (Fla. 4th DCA 2013);
Fox v. Madsen, 12 So. 3d 1261, 1262 (Fla. 4th DCA 2009). However, the
triggering event for the running of the statute of limitations in this case is
when the “last element constituting” the breach of contract occurred. §
95.031(1), Fla. Stat. (2014). The occurrence of a breach, or breaches, is a
question of fact. See Moore v. Chodorow, 925 So. 2d 457, 461 (Fla. 4th
DCA 2006) (citing Haiman v. Fed. Ins. Co., 798 So. 2d 811, 812 (Fla. 4th
DCA 2001)). Here, the application of the statute of limitations is a mixed
question of law and fact.
“A legal or equitable action on a contract . . . not founded on a written
instrument” is governed by a four-year statute of limitations. § 95.11(3)(k),
Fla. Stat. (2011); Acoustic Innovations, Inc. v. Schafer, 976 So. 2d 1139,
1144 (Fla. 4th DCA 2008). For purposes of the statute of limitations, a
cause of action for breach of contract accrues at the time of the breach.
State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818, 820 (Fla. 1996); Med.
Jet, S.A. v. Signature Flight Support-Palm Beach, Inc., 941 So. 2d 576, 578
(Fla. 4th DCA 2006) (“Florida has followed this general rule that a cause
of action for breach of contract accrues at the time of the breach, ‘not from
the time when consequential damages result or become ascertained.’”)
(quoting Fradley v. Cnty. of Dade, 187 So. 2d 48, 49 (Fla. 3d DCA 1966)).

The contract in this case contemplated that Access would pay Gee
commissions at different times in the future, upon its receipt of premiums
and renewal premiums. Such a contract is divisible, in that it is a
continuing contract which contemplates performance and payments upon
the occurrence of separate, distinct events. The receipt of a premium or
renewal premium from an insurer is such a separate, distinct event. See
15 Williston on Contracts § 45:19 (4th ed.) (quoting Sagebrush Dev., Inc.
v. Moehrke, 604 P.2d 198, 202-03 (Wyo. 1979)). Where a contract is

3In a motion for summary judgment and at trial, Access contended that the
statute of limitations began to run on March 17, 2006, the date it claimed Gee
was no longer a salaried employee.

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divisible, “breaches of its severable parts give rise to separate causes of
action” and “the statute of limitations will generally begin to run at the
time of each breach.” 15 Williston on Contracts § 45:20 (4th ed.).
We applied the statute of limitations to a divisible contract in Hannett
v. Bryan, 640 So. 2d 203 (Fla. 4th DCA 1994). That case involved a
contract which contemplated that syndication fees in a real estate
development would be paid at different times in the future; the plaintiff’s
entitlement to “his portion of the fees did not ripen until” a syndication fee
payment was made. Id. at 204. Analogizing this type of contract to the
installment payment contract in Isaacs v. Deutsch, 80 So. 2d 657 (Fla.
1955), we held that the statute of limitations for each payment due the
plaintiff began to run when a syndication fee payment was made. Id.; see
also Vetro v. City of Coral Springs, 901 So. 2d 875 (Fla. 4th DCA 2004);
Bishop v. State, Div. of Ret., 413 So. 2d 776 (Fla. 1st DCA 1982); Greene v.
Bursey, 733 So. 2d 1111 (Fla. 4th DCA 1999) (involving monthly
installment payments on a promissory note and holding that the statute
of limitations had run on some payments but not others); Baker v.
Brannen/Goddard Co., 559 S.E.2d 450, 454 (Ga. 2002) (holding that
commission contract “for an indefinite total amount which was payable in
installments” over an uncertain period was a divisible installment
contract).
The notion that the parties’ agreement in this case was a divisible
contract was supported by the evidence at trial. Wardell conceded that
his agreement with Gee was on a “case-by-case basis,” and agreed that
every time a case came in he would sit down with Gee and make a different
agreement.
Because Access believes that the entire cause of action accrued in
2005, it concludes that the trial court must have applied the delayed
discovery doctrine to avoid the statute of limitations. The court appears
to have concluded that the cause of action did not accrue until Gee became
aware that something was “amiss.” For specified causes of action, the
Legislature has established exceptions that would toll the statute of
limitations. See §§ 95.031(2)(a) & (b), 95.11(4)(a) & (b), 95.11(7), Fla. Stat.
(2011). They are often referred to as the “delayed discovery doctrine.” See
Davis v. Monahan, 832 So. 2d 708, 708 (Fla. 2002); Hearndon v. Graham,
767 So. 2d 1179, 1181 (Fla. 2000). These statutory sections toll the
statute of limitations in cases where a plaintiff was unaware or could not
discover that a cause of action had accrued. Id. See Hearndon, 767 So.
at 1181-82 (applying doctrine to lack of memory in a childhood sexual
abuse claim).

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 As Access correctly contends, the Florida Supreme Court has refused
to apply the delayed discovery doctrine to breach of contract cases. See
Fed. Ins. Co. v. Sw. Fla. Ret. Ctr., Inc., 707 So. 2d 1119, 1121-22 (Fla.
1988). The Supreme Court reinforced this limited application of the
delayed discovery doctrine when overruling this Court’s decision in Davis
v. Monahan, 832 So. 2d 708 (Fla. 2002). The delayed discovery doctrine
was found not to apply to claims alleging breach of fiduciary duty, civil
theft, conspiracy, conversion, and unjust enrichment, even though there
were compelling reasons to forgive the untimely filling of the lawsuit. Id.
at 712. This court later specifically declined to expand the delayed
discovery doctrine to breach of contract cases.4 Med. Jet, S.A., 941 So. 2d
at 578.
If Access were correct about the accrual of the causes of action, then
the statute of limitations would bar the claims, as the delayed discovery
doctrine does not apply. However, the parties’ contract was divisible into
separate parts, so that the statute of limitations began to run at the time
of each breach.
Applying the four-year statute of limitations, claims based on premium
payments received by Access after January 11, 2007, are not barred by
the statute of limitations; claims based on premium payments received
before to January 11, 2007, are barred by the statute.5 The final judgment
did not use this temporal division to award damages. We remand to the
circuit court for further proceedings for the court to award damages only
for commission claims that accrued after January 11, 2007.

4In 2013, the supreme court approved Standard Jury Instructions–Contract and
Business Cases. In re Standard Jury Instructions–Contract & Bus. Cases, 116 So.
3d 284, 287 (Fla. 2013). Section 416.32 of these jury instructions addressed the
affirmative defense of the statute of limitations. Id. at 327. The note on use for
this section states, “[t]he delayed discovery doctrine has not been applied to
breach of contract actions in Florida.” Id. (citing Med. Jet, S.A. v. Signature Flight
Support-Palm Beach, Inc., 941 So. 2d 576, 578 (Fla. 4th DCA 2006), and Davis v.
Monahan, 832 So. 2d 708 (Fla. 2002)).
5We note that the facts might have supported an estoppel; however, Gee did not

raise estoppel in the circuit court or on appeal, so the issue is waived. See Fla.
Dep’t of Health & Rehabilitative Servs. v. S.A.P, 835 So. 2d 1091, 1099 (Fla. 2002)
(stating a main purpose of the doctrine of equitable estoppel “is to prevent a party
from profiting from his or her wrongdoing” and applies where the wrongdoer
engaged in acts of concealment); see also Acoustic Innovations, Inc. v. Schafer,
976 So. 2d 1139 (Fla. 4th DCA 2008) (applying the doctrine of equitable estoppel
so that the cause of action for breach of contract did not accrue until it became
clear the employer did not intend to honor the oral employment agreement).

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 We have considered the other issues raised on this appeal, including
the claims for attorney’s fees, and find no reversible error.
Affirmed in part, reversed in part, and remanded to the circuit court for
further proceedings consistent with this opinion.

TAYLOR, J., and SHEPHERD, CAROLINE, Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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