dissenting:
I join the majority opinion except for the . part affirming the negligence verdict against William Cargill for failing to warn *673Daphne Cronin that her health insurance was about to expire; as to that part of the opinion, I respectfully dissent.
The majority correctly notes that Cargill had no statutory or contractual duty to notify Cronin of her policy’s pending expiration. Nevertheless, the majority concludes that “[t]he jury could have found that Cargill assumed the duty to notify Cronin each time her insurance policy was about to expire.” Maj. op. at 669. This holding adopts for Florida a significant rule of insurance law that finds no support in Florida’s insurance case law. More significantly, the holding rests on a theory of negligence liability on which the jury was not instructed and which Cronin has not urged.
Nowhere in Cronin’s amended complaint, the jury instructions or the parties’ briefs is anything said about the assumption of a duty to notify an insured about the impending expiration of an insurance policy. Because the argument has never been made in this case, our court should not address it. Further, without an instruction on this principle of law, it cannot be assumed that the jury knew of such a principle.
The district court told the jury that an “agent or broker may be negligent for failing to inform an insured of the termination dates of a policy of insurance.” 1 But the district court added that Cargill would not be liable if “Cronin knew or should have known the termination date of her policy.”2 The court explained Cronin’s personal responsibility in this way:
The means of knowledge are ordinarily the equivalent in law to knowledge. If it is apparent from the evidence in the ease that a person had information which would lead a reasonably prudent person to make inquiry through which he or she would surely learn certain facts, then this person may be found to have actual knowledge of those facts, the same as if he or she had made such inquiry and had actually learned of the facts.
That is to say the law will charge a person with notice and knowledge of whatever he would have learned upon making such inquiry as it would have been reasonable to expect that person to make under the circumstances.3
The instruction did not indicate that Cargill could have assumed a duty to inform Cronin notwithstanding Cronin’s other “means of knowledge.” To the contrary, the instruction explicitly limited the duty to situations in which an insured cannot fairly be expected to know her policy’s expiration date without being told by her agent. ,
Under the instructions given to the jury,4 - no reasonable juror could have found that Cronin lacked the means to know when her policy would terminate. She kept a copy of the policy in her insurance file.5 The termination date was clearly printed as part of the “Policy Schedule” in the policy package that she introduced at trial.6 The schedule is printed in such a way that it is visible when one reads the cover page of the policy. Attached as the third page of the policy package is Cronin’s completed application for coverage. The application is dated September 2, 1987, and the box indicating a 180-day policy term is checked. Also, Cronin had applied for the same type of policy from Washington National every six months from March 1986 through September 1987.7 .
Like the jury instructions, Cronin has been silent about an assumption-of-duty theory. Her amended complaint declared that Cargill “had a duty to notify” her, but *674it did not assert a basis for that duty.8 In the parties’ pretrial stipulation, Cronin referred to the alleged duty as part of her breach of contract claim, not her negligence claim.9 In her submissions to this court, Cronin states that her “negligence claim against William Cargill is based upon his negligent failure to perform the task of procuring appropriate insurance.” 10 She does not contend that Cargill, through his conduct, assumed a noncontractual duty to remind her that her policy would expire at the end of six months.
The majority cites a Florida appeals court case for the rule that “an action undertaken for the benefit of another, even gratuitously, must be performed in accordance with an obligation to exercise reasonable care.” Barfield v. Langley, 432 So.2d 748, 749 (Fla.App.1983). The jury in the present case, however, was not instructed on this theory of liability. The district court carefully admonished the jury to base its verdict only “on the evidence that has been received and the law upon which you have been instructed.” 11 Yet the majority affirms the verdict by speculating that the jury might have used a legal theory the jury never heard. The result is that an insurance agent is held liable for not tracking down a college graduate — who had not given the agent her current address — to remind her that her fourth consecutive six-month policy would expire in six months, on the date printed on the copy of the policy in her own insurance file.
I would hold that the district court should have directed a verdict in favor of Cargill on Cronin’s negligence claim.
. R.12 at 116.
. Id.
. Id. at 116-17.
. At another point in its jury charge, the district court said an insurance agent or broker has a duty to inform a client "in a timely manner" if the agent or broker is unable to procure insurance. (R.12 at-115.) This instruction focused on Cargill’s attempt to have Cronin covered retroactively following her accident, not his failure to notify her of the fourth policy’s expiration. As the majority has observed, the claim based on Cargill’s post-accident conduct is frivolous.
. R.9 at 84.
. See Plaintiff’s Exhibit 2.
. R.9 at 109-10.
. R.2-61 at 3 ¶ ll.c.
. R.6-181 at 3.
.Appellant’s Brief at 25.
. R.12 at 120 (emphasis added).