Frequently, the outcome of an insurance case depends on the critical issue of whether the person who sold the policy is an agent for the insured or an agent for the insurer. The fundamentals for determining whether an insurance agent/broker is an agent for the insurer or the insured were set forth in Essex Insurance Company v. Zota, 985 So.2d 1036, 1046-47 (Fla. 2008), and bear repeating. The Court held:
“[A]n insurance broker acts as an agent of the insured, not the insurer, where the broker is employed by the insured to procure insurance. The presumption can be overcome by the existence of special circumstances [i.e., indicia of agency] indicating that the broker’s arrangement with the insurer was not a standard relationship.
“3 Russ & Segalla, supra § 45:5 (emphasis supplied) (footnotes omitted). It is important to note that “insurance broker” and “insurance agent” are not synonymous terms:
“A representative of the insured is known as an “insurance broker.” A broker represents the insured by acting as a middleman between the insured and the insurer, soliciting insurance from the public under no employment from any special company, and, upon securing an order, places it with a company selected by the insured, or if the insured has no preference, with a company selected by the broker. In contrast, an “insurance agent ” represents an insurer under an exclusive employment agreement by the insurance company…. The distinction between an agent and a broker is important because acts of an agent are imputable to the insurer, and acts of a broker are imputable to the insured.
"3 Russ & Segalla, supra § 45:1 (emphasis supplied)(footnotes and internal division omitted) see also Almerico, 716 So.2d at 776-78. Based on its recognition of "the sometimes amorphous nature of an insurance broker," this court held in Almerico "that under the provisions of Section 626.342(2), Florida Statutes (1989), as well as Florida’s common law, civil liability may be imposed upon insurers who cloak unaffiliated insurance agents with sufficient indicia of agency to induce a reasonable person to conclude that there is an actual agency relationship." 716 So.2d at 782 n. 13, 783 (emphasis supplied).
“In this vein,
"[c]ourts have found the existence of [indicia of agency] when the insurer characterizes the broker as a representative of the insurer, or when insurers contemplate broker solicitation of their products using the insurer’s application and sales brochures. [ See, e.g., Almerico, 716 So.2d at 777 (“Evidence of indicia of agency may be demonstrated if the insurer furnishes an insurance agent or agency with any blank forms, applications, stationery, or other supplies to be used in soliciting, negotiating, or effecting contracts of insurance.” (internal quotation marks omitted)).] Conversion of a broker to an agent has also been found when an insurer uses a broker as an agent for a single purpose. Finally, an agent licensed to sell insurance products for a variety of insurers as an independent insurance agent, may still be considered the agent of an insurer if the insurer has a written agency appointment agreement expressly authorizing the agent to transact business on behalf of the insurer as its agent.
“3 Russ & Segalla, supra § 45:5 (emphasis supplied) (footnotes omitted).”