Abboud v. Liberty Mutual Insurance Group, Inc.

711 F. App'x 773
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 10, 2017
Docket17-3286
StatusUnpublished
Cited by4 cases

This text of 711 F. App'x 773 (Abboud v. Liberty Mutual Insurance Group, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abboud v. Liberty Mutual Insurance Group, Inc., 711 F. App'x 773 (6th Cir. 2017).

Opinions

OPINION

JANE B. STRANCH, Circuit Judge.

Plaintiff Dr. John Abboud appeals from the district court’s decision granting summary judgment in favor of Defendants Liberty Mutual Insurance Group, Inc. and Liberty Mutual Insurance Co. (collectively Liberty Mutual). Abboud appeals only the dismissal of his claim of negligent misrepresentation, in which he asserts that Liberty Mutual negligently represented that its umbrella liability policies would extend the Uninsured/Underinsured Motorist (UM/UIM) coverage already available as part of his underlying auto insurance policy. The district court determined that no trier of fact could find that Abboud had demonstrated the requisite element of justifiable reliance, and therefore held that his negligent misrepresentation claim. failed as a matter of law. Because we find that the record reveals genuine issues of material fact as to Abboud’s reliance on representations by Liberty Mutual, we REVERSE the district court’s decision and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

Abboud purchased an auto insurance policy from Liberty Mutual in 2011 after buying a BMW and learning about Liberty Mutual’s special rates for BMW owners. At that time, Abboud purchased single limit coverage with a per accident liability limit of $1,000,000 and a per accident UM/ UIM limit of $500,000. The liability coverage applied where someone insured under Abboud’s policy was at fault, and the UM/ UIM coverage protected Abboud and his family in the event of an accident where a third-party motorist with insufficient coverage was at fault.

In June 2012, Abboud received an unsolicited email from Liberty Mutual advertising Personal Liability Protection (PLP) or “umbrella” coverage. On August 9, 2012, Abboud called Liberty Mutual to inquire about the umbrella policy and to pay his auto insurance bill. He spoke with Daniel Fissel, a customer service representative licensed to sell insurance in the Commonwealth of Pennsylvania. Abboud recalls speaking with Fissel about incorporating a Liberty Mutual umbrella policy into his auto and home insurance policies. Abboud asserts that, upon Fissel’s recommendation, he switched his auto insurance coverage from a single limit policy to split limit coverage, with the goal of adding an umbrella policy on top. .

Fissel confirmed that it was his “habit and practice” to advise switching to split limit coverage, which is less expensive than a single limit policy. Where insureds had considerable assets, he would recommend this step in conjunction with the purchase of an umbrella policy “providing coverage over and above the coverage available under the insured’s personal automobile and homeowner’s policies.” Fissel states that he “would not have recommended reduction of the insured’s personal automobile insurance liability limits unless the insured was also purchasing a PLP policy to provide additional liability coverage.” While Fissel does not specifically remember speaking with Abboud in August 2012, his review of Liberty Mutual’s system records cause him to “believe it probable that [he] would have discussed and recommended to Dr. Abboud the purchase of PLP insurance.” By the end of their August 9 conversation, Abboud had a new auto insurance policy with split limit coverage of $250,000 per person/$500,000 per accident liability coverage and $100,000 per person/$200,000 per accident UM/UIM coverage. These limits represent the minimum underlying automobile coverage necessary to purchase and sustain a PLP policy with Liberty Mutual.

Fissel did not have the authority to sell umbrella policies, and Abboud remembers that Fissel then transferred him to another sales employee to continue discussing umbrella coverage. Abboud does not know the identity of the individual with whom he spoke about umbrella insurance that day, and Liberty Mutual’s records do not indicate a second August 9 conversation. Liberty Mutual’s business records do not show generation of an umbrella coverage quote for Abboud until November 21. A corporate witness clarified, however, that “Liberty [Mutual] does not maintain records of all calls between existing or potential customers and sales representatives. It is possible that a general information call could have taken place without any record being generated in Liberty [Mutual]’s computer system.” A Liberty Mutual sales employee likewise confirmed that she had conducted informational calls that were not captured by Liberty Mutual’s record/notation system.

Abboud ended his August 9 call with the understanding that he would be receiving umbrella coverage paperwork. Yet it was not until a November follow-up call that Liberty Mutual generated a quote for a PLP policy for Abboud and he actually purchased umbrella coverage with a policy limit of $2,000,000. This purchase was formalized when Liberty Mutual mailed Abboud an application form with pre-populated information. The section of the application form regarding UM/UIM coverage was left blank. In response to the question, “UM Coverage? (where applicable),” neither the “yes” nor the “no” box is checked. The form also lacks responses regarding the “[Underlying UM limit $” and the “POP UM Limits '$.” Abboud and his wife signed the application without adding any additional information, and the umbrella policy took effect on November 22, 2012.

The PLP policy enumerates some exclusions, including an exclusion for UM/UIM coverage “unless these coverages are specifically listed on your policy declarations.” The second page of the PLP policy declarations lists Abboud’s auto insurance policy, which included UM/UIM coverage, on the “underlying policy schedule.” Somewhat circularly, the policy defines an “underlying policy” as “a policy listed as an underlying policy in the Declarations^]”

Abboud read and understood both the PLP application and policy. He asserts that, based on his conversations with the Liberty Mutual employees, he understood that as long as he kept his “UM coverage under the underlying policy[,] that would be part of the umbrella to take effect.” He states that he “expressed that [his] intent in purchasing the umbrella [coverage] was to increase the net coverage available for the coverages purchased under [his] auto and homeowner’s policies, and [he] was informed the umbrella policy provided excess coverage for all underlying coverages.” Abboud believed that the PLP policy incorporated his UM/UIM coverage despite the exclusionary language because that coverage is part of his auto insurance, which is listed in the policy declarations.

Abboud renewed his auto insurance policy in August 2013 and his umbrella policy in November 2013. In August 2014, while both of the renewed policies remained in place, Abboud’s mother, Nahida Abboud, was out walking when she was struck by a third-party motorist. Mrs. Abboud suffered severe brain damage as a result of the accident. She ultimately passed away after incurring over $1.5 million in medical expenses. The third-party motorist’s insurance carrier tendered her liability limit of $100,000 without issue. Abboud then filed a UIM claim on behalf of his mother under both his auto and PLP Liberty Mutual policies. Because the third-party motorist’s insurance carrier had already paid the equivalent of the UM/UIM limit in Ab-boud’s auto policy, Liberty Mutual denied additional coverage under that policy. Liberty Mutual also denied coverage under the PLP policy, asserting that it did not include UM/UIM coverage.

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711 F. App'x 773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abboud-v-liberty-mutual-insurance-group-inc-ca6-2017.