Commercial Insurance Consultants, Inc. (CIC), appeals a final judgment entered after a jury verdict found that it had breached its contract with Frenz Enterprises, Inc. (Frenz) to procure insurance on a dredge leased to Frenz by Dredge and Marine Corp. (DMC). The dredge was swamped by a passing boat and sank.
The jury found that CIC breached its obligation to procure insurance and we will not disturb that finding. The determination of whether an insurance broker has failed to procure insurance is ordinarily a question of fact which will not be disturbed if supported by sufficient evidence. Coplan v. LaChance,
We reverse, however, the judgment entered in favor of appellee DMC on its cross-claim against co-defendant, CIC. Frenz, under its lease agreement with DMC, was obligated to obtain proper insurance. Frenz failed to obtain the necessary insurance but DMC apparently never sued Frenz for the breach. Florida permits an insurance broker to be held hable to third parties when the broker is negligent in procuring coverage for a customer, which coverage, had it been in place, would have been available to pay a third party’s claim against the customer. But before a third party may seek to recover against the insurance broker, the third party must first be successful in its action against the customer who did not have adequate insurance. Schuck v. Habicht,
CIC also asserts that Frenz failed to present any evidence of the terms of a policy that CIC allegedly failed to obtain and that moreover, the jury improperly included in its award the recovery of lost profits. Frenz, however, produced an “inland marine policy” issued by Old Dominion Insurance Co., a policy that had been customarily used by Frenz and CIC. This policy provided the following relevant coverage:
2. Your Duties After Loss. In case of a loss to which this insurance may apply, you shall see that the following duties are performed:
(a) Protection of Property — Protect the property from further loss and take all steps possible to minimize the loss. If expenses are incurred in doing so, they shall be borne by you and us proportionate to our respective interests.
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3. Loss Settlement. Unless otherwise stated in this policy, the value of the property insured is not agreed upon but shall be ascertained at the time of loss or damage. We will not pay more than the least of the following amounts:
(a) the actual cash value of the property at the time of loss or damage: the term*873 “actual cash value” means: the amount which it would cost to repair or replace damaged property with material of like kind and quality, less allowance for physical deterioration and depreciation;
(b) the amount for which the property could reasonably be expected to be repaired to its condition immediately pri- or to loss or damage;
(e) the amount for which the article could reasonably be expected to be replaced with one substantially identical to the article lost or damaged; or
(d) the applicable amount of insurance.
The evidence of damages presented at trial placed the insurable value of the dredge at $145,000, but an additional $24,000 was spent in salvaging the dredge pursuant to 2(a) of the policy. It was later sold to a third party for $85,000. Thus, the most that could have been awarded by the jury under the terms of the policy was $84,000 ($145,000 plus $24,000 less $85,000). The jury awarded $100,750 to Frenz and $40,000 to DMC. We surmise that the jury awarded Frenz lost profits that it failed to realize on a construction job that it could not complete when the dredge sank. Consideration of damages for lost profits was improper since that type of damages was not covered by the policy customarily used by Frenz to insure its equipment. CIC’s objection that lost profits were not covered by the inland marine policy was erroneously overruled.
If a broker is found liable for a breach of duty, the broker is generally liable to the same extent as the insurer had the insurance been properly obtained. The broker must then step into the shoes of the insurer and pay the uninsured loss. Appelman, Insurance Law and Practice, § 8841; Glades Oil Co. v. R.A.I. Mgm’t, Inc.,
We remand this matter to the trial court for a jury trial only on the issue of damages consistent with this opinion.
AFFIRMED IN PART; VACATED IN PART; REMANDED.
