Forgione v. Dennis Pirtle Agency

United States Court of Appeals,

Eleventh Circuit.

No. 95-5516

Non-Argument Calendar.

David FORGIONE, as Assignee of Harry Tofel and Lena Tofel,
Plaintiff-Appellant,

v.

DENNIS PIRTLE AGENCY, INC., American States Insurance Company, an
Indiana Corporation, Defendants,

State Farm Mutual Automobile Insurance Company, an Illinois
Corporation, Defendant-Appellee,

Herman B. Fine, Cerrato-Fine Agency, Inc., a New York
Corporation, Defendants-Cross-Defendants, Appellees,

Fireman's Fund Insurance Companies, Defendant-Cross-Claimant,
Appellee.

Sept. 5, 1996.

Appeals from the United States District Court for the Southern
District of Florida. (No. 94-7254-CIV-SJM), Stanley Marcus, Judge.

Before DUBINA, BLACK and CARNES, Circuit Judges.

PER CURIAM:

This appeal concerns a single issue: Under Florida law, is

a claim for negligence by an insured against an insurance agent for

failure to obtain proper insurance coverage assignable? Because we

are unable to find any authoritative decision from the Florida

courts answering the question, we certify the question to the

Florida Supreme Court.

I. BACKGROUND

The plaintiff and appellant in this case, David Forgione, was

involved in an automobile accident with a vehicle owned by Harry

and Lena Tofel. He thereafter obtained a final judgment against
them in the amount of $600,000. Forgione was unable to satisfy

that judgment completely, due to a gap in the Tofels' insurance

coverage. The Tofels assigned (or attempted to assign) to Forgione

all the rights and claims they have against the insurance companies

and agents through whom they obtained their insurance coverage.

Those companies and agents are the defendants and appellees in this

lawsuit.1

Forgione alleges that there is a gap in the Tofels' coverage

and that some portion of Forgione's $600,000 judgment against them

falls into that gap. As the asserted assignee of the Tofels, he

further alleges that the agent for State Farm, who obtained the

Tofels' base automobile coverage, and the agent for Fireman's Fund,

who obtained the Tofels' excess liability umbrella coverage,

breached their duties of care to the Tofels by failing to exercise

reasonable skill and diligence to ensure that there would be no gap

in the limit of the coverage in the base automobile policy provided

to the Tofels by State Farm and the minimum of the umbrella

coverage that the Tofels were provided by Fireman's Fund in a

separate transaction. The action is not one for breach of

contract, but instead is for negligence arising from an alleged

relationship of trust and confidence between the Tofels and the

defendants.2

State Farm moved to dismiss Forgione's complaint, contending

1
Forgione voluntarily dismissed Denise Pirtle Agency, Inc.,
in order to maintain complete diversity.
2
Forgione alleges that the agents were negligent; the
insurance companies that are the agents' principals are sued
under a vicarious liability theory.
that it involves a personal tort, the assignment of which is

prohibited by Florida law. The district court granted State Farm's

motion and dismissed the case, concluding that Florida law does

prohibit assignment of the claims.

II. DISCUSSION

As we understand it, under Florida law, purely personal tort

claims cannot be assigned. Examples of such unassignable personal

tort claims are personal injury claims, including claims of medical

malpractice. Florida Patient's Compensation Fund v. St. Paul Fire

& Marine Ins. Co., 535 So.2d 335 (Fla. 4th DCA 1988), and claims

for intentional infliction of emotional distress, Notarian v.

Plantation AMC Jeep, Inc., 567 So.2d 1034 (Fla. 4th DCA 1990).

Florida courts also treat claims of legal malpractice as personal

torts incapable of valid assignment. Washington v. Fireman's Fund

Ins. Co., 459 So.2d 1148 (Fla. 4th DCA 1984). However, no Florida

court has yet addressed whether a negligence claim against an

insurance company or agent, of the type presented by this case, is

assignable.

The district court, in holding that the negligence claim in

this case could not be assigned analogized it to a legal

malpractice claim, which cannot be assigned under Florida law.

Forgione v. State Farm Mutual Ins. Co., et al., No. 94-7254-CIV-

SJM, op. at 9-10 (S.D.Fla. Oct. 31, 1995). The reason that legal

malpractice claims cannot be assigned is the personal nature of the

relationship between attorney and client and the attendant duties

arising from that relationship. Washington, 459 So.2d at 1148 ("A

majority of jurisdictions prohibit the assignment of [legal
malpractice] actions because of the personal nature of legal

services which involve highly confidential relationships."). The

district court reasoned that a relationship similar to that of

attorney and client "is created when a prospective insured consults

an insurance agent, provides that agent with specific information

about his unique circumstances and relies on the agent to obtain

appropriate coverage tailored to these circumstances." Forgione,

No. 94-7254-CIV-SJM, op. at 9. The court noted that "an insurance

agent owes a prospective insured a duty of unwavering loyalty

similar to that owed by an attorney to client." Id. at 10.

Explaining that it is the special fiduciary nature of the

relationship that gives rise to its personal character, the court

concluded that the claims of negligence in procuring appropriate

insurance coverage in this case are personal in nature and

incapable of assignment. Id.

Although the district court's classification of a claim by an

insured against his agent for negligence in obtaining insurance

coverage as a personal tort may be supported by the case law and

public policy, Florida cases may also support the opposite result.

Florida law permits the assignment of claims against insurance

companies based upon allegations that claims were handled in bad

faith. E.g. Selfridge v. Allstate Ins. Co., 219 So.2d 127 (Fla.

4th DCA 1969). It is possible that Florida courts would permit

assignment of the negligence claims in this case. Extending the

class of nonpersonal assignable claims to include the claims

presented in this case might be as natural as extending the class

of personal nonassignable claims to include them.
 In the absence of any direct authority either way, any

conclusion we reach must be based on uncertain analogy. The

district court believed that the claims at issue here are most

analogous to claims of legal malpractice. There are definite

similarities. However, there are also significant dissimilarities,

particularly when one looks to the policy goals behind the

prohibition against assignment of legal malpractice claims. In

extending the definition of a personal tort to a claim of legal

malpractice, the court in Washington, 459 So.2d at 1149, emphasized

the "personal nature of legal services which involve highly

confidential relationships." One concern that appears to have

influenced the Washington court was that an attorney would be

unable to maintain client confidences if sued by someone other than

the client. See id. (citing Chaffee v. Smith, 98 Nev. 222, 645

P.2d 966 (1982); Clement v. Prestwich, 114 Ill.App.3d 479, 70

Ill.Dec. 161, 448 N.E.2d 1039 (1983); Joos v. Drillock, 127

Mich.App. 99, 338 N.W.2d 736 (1983); Christison v. Jones, 83

Ill.App.3d 334, 39 Ill.Dec. 560, 405 N.E.2d 8 (1980); Goodley v.

Wank & Wank, Inc., 62 Cal.App.3d 389, 133 Cal.Rptr. 83 (1976)).

That concern may not be warranted in the case of a prospective

insured and agent. An insurance agent, although under a fiduciary

duty to his prospective insured, is not bound by the same canons of

ethics as is an attorney. An attorney-client relationship is

unique among agency relationships. For those and other reasons, we

do not know whether the Florida courts would extend the rule of

nonassignability to the claims in this case.

When substantial doubt exists about the answer to a material
state law question upon which the case turns, a federal court

should certify that question to the state supreme court in order to

avoid making unnecessary state law guesses and to offer the state

court the opportunity to explicate state law. See, e.g., Mosher v.

Speedstar Div. of AMCA Int'l, Inc., 52 F.3d 913, 916-17 (11th

Cir.1995). "Only through certification can federal courts get

definitive answers to unsettled state law questions. Only a state

supreme court can provide what we can be assured are "correct'

answers to state law questions, because a state's highest court is

the one true and final arbiter of state law." Sultenfuss v. Snow,

35 F.3d 1494, 1504 (11th Cir.1994) (en banc) (Carnes, J.,

dissenting) cert. denied, --- U.S. ----, 115 S.Ct. 1254, 131

L.Ed.2d 134 (1995).

III. QUESTION TO BE CERTIFIED

Accordingly, we respectfully certify the following question of

law to the Florida Supreme Court:

Can a claim for negligence by an insured against an insurance
agent for failure to obtain proper insurance coverage be
assigned to a third party?

Our statement of the question is not meant to limit the scope of

inquiry by the Florida Supreme Court. On the contrary:

the particular phrasing used in the certified question is not
to restrict the Supreme Court's consideration of the problems
involved and the issues as the Supreme Court perceives them to
be in its analysis of the record certified in this case. This
latitude extends to the Supreme Court's restatement of the
issue or issues and the manner in which the answers are to be
given....

Martinez v. Rodriquez, 394 F.2d 156, 159 n. 6 (5th Cir.1968).

The entire record in this case, together with copies of the

briefs of the parties, is transmitted herewith.
QUESTION CERTIFIED.