dissenting.
I respectfully dissent. Whether or not Kobielak was acting as an agent of UPL is a question of fact to be decided by the jury.
I agree with the majority that in general an insurance agent who represents several companies is considered a broker and thus his or her negligence may not be imputed to the insurer. Automobile Underwriters, Inc. v. Hitch (1976), 169 Ind.App. 453, 349 N.E.2d 271. However, this general proposition is not set in concrete. Rather, an insurance agent may nonetheless be considered the agent of a single insurance company even though he or she represents more than one company. The facts of each case must be examined. See Tynes v. Bankers Life Co. (1986), 224 Mont. 350, 860, 730 P.2d 1115, 1122 (agent who sold insurance for several different companies was an agent and not a broker with respect to company with whom he enjoyed a fixed or permanent relationship of more than thirty-seven years); Sorapuru v. Jeffers (1979), La.App., 378 So.2d 524, 526 (fact that agent could write insurance for more than one company was not conclusive as to question of his agency for defendant insurer; rather, evidence of agent's role in transaction at issue was sufficient to establish agency).
A "broker" is defined as one who acts as middleman between the insured and the insurer and who solicits insurance from the public under no employment from any specific company. Electro Battery Mfg. Co. v. Commercial Union Ins. Co., 762 F.Supp. 844, 848 (E.D.Mo.1991); 16 John Alan Appleman & Jean Appleman, Insurance Law & Practice § 8726 (1981); 3 George J. Couch et al., Couch on Insurance 2d § 25:98 (1984). He enjoys no fixed or permanent relationship to an insurer but rather holds himself out for employment by the general public. Gerdes v. John Hancock Mut. Life Ins. Co., 712 F.Supp. 692, 699 (N.D.Ill.1989); 16 Appleman, supra § 8726. A broker is ordinarily employed by a person seeking insurance, his task being that of establishing contact with many companies in order to obtain the best deal he can for the insured rather than having allegiance to any one company. 16 Appleman, supra § 8726, at 339, § 8730, at 360-61. As a general rule, an insurance broker is the agent of the insured, and not of the insurer. Stoddard v. Continental Ins. Co., 702 F.Supp. 275, 280 (D.Wyo.1988); 16 Appleman, supra § 8727, at 341-42. He thus has no authority to bind the insurer by his acts or omissions. Callis v. State Auto. Ins. Co. (1991), Ind.App., 579 N.E.2d 129, trans. denied; Stockburger v. Meridian Mut. Ins. *379Co. (1979), 182 Ind.App. 566, 395 N.E.2d 1272; 16 Appleman, supra § 8730, at 360, 363.
On the other hand an insurance "agent" is one who is expressly or impliedly authorized to represent an insurance company in dealing with third persons in matters relating to insurance. Manzella v. Paul Revere Life Ins. Co., 872 F.2d 96, 98 (5th Cir.1989) quoting 16 Appleman, supra § 8725, at 882. An insurance agent is tied to his company and represents the insurer under an employment by the company. Id.; 8 Couch, supre § 25:93, at 442-48. An insurance company is bound by the acts of its agents performed within the scope of the agents' authority. Aetna Ins. Co. of the Midwest v. Rodriguez (1988), Ind., 517 N.E.2d 386, 388, reh. denied; 4 Couch supra § 26A:268. Thus, the knowledge, mistakes, and omissions of an agent are those of his principal where the agent is authorized to act concerning the matter. 4 Couch, supra § 26A:264, at 501.
In determining whether one is a broker or an agent, it is necessary to consider the facts and circumstances of the case, the relation of the parties, their actions, their usual course of dealing, any instructions given to the person by the company, the conduct of the parties generally, and the nature of the transaction. Weinisch v. Sawyer (1991), 128 N.J. 383, 344, 587 A.2d 615, 620; American Ins. Co. v. Freeport Cold Storage, Inc., 703 F.Supp. 1475, 1480 (D.Utah 1987); 3 Couch, supra § 26:30. Facts evidencing an agency relationship include the presence of the company's sign in the agent's office, use of the company's stationery, and use of preprinted application forms bearing the company's name. Randall v. Alan L. Rankin Ins., Inc. (1987), 38 Ohio App.3d 87, 90, 526 N.E.2d 97, 100; 44 C.J.S. Insurance § 192, at 367 (1993).
In the case before us UPL presented evidence that Kobielak represented more than one insurance company and that he provided various services for Benante at her request. In addition, the agency agreement between Kobielak and UPL provided that Kobielak's relationship to the company was that of independent contractor and that "[nJothing contained in this Agreement shall be construed to create the relationship of employer and employee...." Record at 880. At first blush therefore it would appear, as the majority concludes, that Kobielak was a broker whose negligent acts were not imputed to UPL. However, the record reveals that despite the provision in the agreement describing Kobielak as an independent contractor, the agreement lists a number of responsibilities owed by Kobielak to the company and provides that the company shall have the right to approve the hiring of any sub-agents by Kobielak and that it may mandate termination of any contracts between Kobielak and his sub-agents. In addition, the record reveals that UPL supplied Kobielak with brochures and applications for insurance which he used in soliciting business for UPL.
Thus, although there was evidence tending to establish that Kobielak acted merely as a broker, there was also evidence, although slight, suggesting that Kobielak was employed by UPL as its agent. Whether Ko-bielak in fact served as agent for UPL and whether a master-servant relationship existed such that UPL was liable for torts committed by Kobielak are issues of fact properly reserved for the jury. See Green v. Perry (1990), Ind.App., 549 N.E.2d 385, 387, trans. denied; 4 Couch, supra § 26A:280, at 539. Likewise, the question of whether Kobielak was acting within the seope of his authority at the time of his tortious acts is one best left for jury determination. See 4 Couch, supra § 26A:265, at 510.
When viewed in a light most favorable to Benante the evidence before the trial court did not support UPL's motion for judgment on the evidence. The trial court properly denied the motion and submitted the matter to the jury. I find no error. Therefore I dissent and would affirm the judgment of the trial court.