By Jeffrey T. Donner, Esq.

Insurance litigation does not always end with the carrier. When a coverage action fails, the next question is often whether the insurance broker bears responsibility for the gap. The Fifth District’s January 2, 2026 decision in Brown & Brown of Florida, Inc. v. Houligan’s Pub & Club, Inc. is a significant opinion in that space. It clarifies the distinction between negligent procurement and broader fiduciary-based claims—and it underscores that even when liability survives, the damages model must be legally coherent.

This is a case about doctrinal precision. It is also a case about how damages must align with prior adjudications.

I. The Factual and Procedural Background

The case arises out of Hurricane Matthew’s impact on two Ormond Beach restaurants in 2016. Following the storm, sewage entered the properties through floor drains, causing substantial damage. The insureds submitted claims under policies underwritten by Lloyd’s of London. The insurer filed a declaratory action, and a detailed final summary judgment concluded that the policy did not provide coverage for the claimed loss. That determination was affirmed on appeal.

Several years later, the insureds sued their broker, asserting three theories:

1. Negligent failure to procure insurance
2. Breach of fiduciary duty
3. Negligent misrepresentation

After a five-day jury trial, the broker prevailed on negligent procurement. The jury, however, found in favor of the insureds on breach of fiduciary duty and negligent misrepresentation, assigning 60% fault to the broker and awarding more than $1.6 million in damages before reduction for comparative negligence.

The broker did not contest the existence of a fiduciary duty or the fact of misrepresentation on appeal. The central issue was whether the damages theory was legally sustainable.

II. Capell v. Gamble: A Narrow Rule, Not a Universal Limitation

The broker relied heavily on Capell v. Gamble, which addressed the measure of damages in negligent procurement cases. In Capell, the First District held that a plaintiff must present evidence that a specific, available policy existed that would have provided coverage. The rationale is straightforward: an agent cannot be liable for failing to procure insurance that did not exist.

The Fifth District declined to extend Capell beyond its context. The opinion emphasizes that Capell dealt solely with negligent procurement. It did not purport to govern breach of fiduciary duty or negligent misrepresentation claims.

That distinction matters. Negligent procurement focuses on whether the broker failed to obtain requested coverage. Fiduciary breach and misrepresentation, by contrast, may involve failures to advise, failures to disclose, or inaccurate representations about coverage—conduct that is not necessarily confined to the existence of a specific market-available policy.

III. Fiduciary Duty and Negligence Are Independent Theories

The court relied in part on Wachovia Ins. Servs., Inc. v. Toomey, where the Florida Supreme Court confirmed that negligence and breach of fiduciary duty are separate causes of action. Insurance brokers may owe both a common-law duty to procure requested coverage and a fiduciary duty to their insured-principals.

The Fifth District also referenced its prior decision in E&R Environmental Services, LLC v. Sihle Financial Services, Inc., which rejected the notion that the unavailability of coverage in the marketplace automatically defeats fiduciary-duty claims. Even if coverage was unavailable, a broker may still be liable for failing to inform the insured or for misrepresenting the scope of coverage obtained.

In other words, proof that “no such policy existed” may defeat negligent procurement—but it does not necessarily extinguish fiduciary or misrepresentation liability.

For practitioners, this is a critical analytical separation. It prevents negligent procurement doctrine from swallowing broader professional-duty claims.

IV. The Damages Problem: You Cannot Build on a Non-Covering Policy

Although the Fifth District affirmed the viability of the fiduciary and misrepresentation claims, it reversed the damages award.

The jury’s damages calculation relied heavily on the Lloyd’s policy—the same policy previously adjudicated not to provide coverage for the loss. The appellate court held that it was error to allow damages to be measured against a policy that, as a matter of law, afforded no coverage.

This aspect of the opinion is as important as its doctrinal clarification. It reinforces a basic principle: damages must be tethered to a legally sustainable theory of recovery. A prior coverage determination is not an evidentiary inconvenience; it is binding law.

The court remanded for a new trial limited to damages. Prejudgment interest must be recalculated.

V. The Scope of Recoverable Damages

The Fifth District did not adopt a cramped view of damages. It cited Travelers Ins. Co. v. Wells for the proposition that damages in insurance-related cases are not necessarily confined to hypothetical policy limits. Consequential damages may be recoverable if sufficiently proven.

But the damages theory must make sense. If the liability theory is that the broker misrepresented coverage, the plaintiff must articulate how that misrepresentation caused a compensable loss—without contradicting binding coverage rulings.

This is where many broker cases are won or lost: not at liability, but at causation and damages modeling.

VI. Lessons for Business Owners and Commercial Insureds

For business owners, Brown & Brown underscores several realities.

First, an adverse coverage ruling does not necessarily end the inquiry. Broker liability may still be viable, depending on the representations made and the scope of the broker’s undertaking.

Second, documentation matters. Emails, proposals, marketing materials, and oral representations can form the basis of fiduciary or misrepresentation claims.

Third, damages must be carefully evaluated. The mere existence of uncovered losses does not automatically translate into recoverable damages against a broker. The theory must be structured to survive appellate scrutiny.

VII. Lessons for Trial Lawyers and Litigators

For lawyers who do not routinely handle insurance broker litigation, this case illustrates why these matters require careful doctrinal framing.

A broker case layered on top of prior coverage litigation presents unique challenges:

• The coverage record constrains the damages model.
• Comparative negligence issues frequently arise.
• Theories of liability must be segregated and precisely instructed.
• Appellate risk often centers on damages rather than duty.

It is not enough to show that a broker “should have done better.” The plaintiff must establish a coherent chain of duty, breach, causation, and damages that does not collapse under the weight of prior rulings.

Conversely, from a defense perspective, damages modeling is often the decisive battleground.

VIII. The Broader Significance

Brown & Brown is a case about boundaries. It prevents Capell from being overextended beyond negligent procurement. It affirms that fiduciary and misrepresentation claims have independent vitality. And it makes clear that a jury verdict cannot stand if the damages theory conflicts with established coverage law.

The opinion brings clarity to an area where insurance law, professional negligence, and commercial damages intersect. It signals that Florida courts will permit broker liability theories to proceed—but only if they are analytically disciplined.

In complex commercial disputes involving insurance brokers, the outcome often turns less on dramatic facts and more on whether the legal architecture is sound. Brown & Brown is a reminder that even a substantial verdict will not survive if the damages framework is misaligned with the governing law.

For business owners evaluating potential claims and for practitioners navigating post-coverage litigation, this decision is required reading.