Burlington Insurance v. Artisan Mechanical, Inc.

936 N.E.2d 114, 188 Ohio App. 3d 560
CourtOhio Court of Appeals
DecidedJuly 7, 2010
DocketNo. C-081280
StatusPublished
Cited by1 cases

This text of 936 N.E.2d 114 (Burlington Insurance v. Artisan Mechanical, Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burlington Insurance v. Artisan Mechanical, Inc., 936 N.E.2d 114, 188 Ohio App. 3d 560 (Ohio Ct. App. 2010).

Opinions

J. Howard Sundermann, Judge.

{¶ 1} Defendant/third-party plaintiff-appellant Artisan Mechanical, Inc., appeals from the trial court’s entry granting summary judgment to third-party defendants-appellees, Wells Fargo Insurance Services of Ohio, L.L.C., and CRC Insurance Services, Inc., on its claim for negligent misrepresentation. For the reasons that follow, we affirm the summary judgment entered for CRC Insurance Services, but we reverse the summary judgment entered for Wells Fargo Insurance Services.

I. The Lawsuit

{¶ 2} The underlying lawsuit between the parties stemmed from a complaint Burlington Insurance Company had filed against Artisan for the insurance premiums due under two separate insurance policies. Artisan filed an answer and counterclaims against Burlington. It then filed a third-party complaint against its insurance broker, Wells Fargo, and wholesale-insurance broker CRC. Artisan asserted claims for negligence, breach of fiduciary duty, fraudulent misrepresentation, negligent misrepresentation, and indemnification against Wells Fargo and claims for fraudulent and negligent misrepresentation against CRC.

{¶ 3} After discovery was completed, Wells Fargo and CRC moved for summary judgment against Artisan. Artisan filed a combined memorandum opposing the motions for summary judgment. Both Wells Fargo and CRC filed a reply memorandum. The trial court subsequently granted Wells Fargo’s and CRC’s motions without any analysis. Shortly thereafter, the trial court also granted Burlington’s motion for summary judgment against Artisan. On appeal, Artisan challenges only the trial court’s entry of summary judgment on its negligent-misrepresentation claims against Wells Fargo and CRC.

II. Events Giving Rise to Artisan’s Negligent-Misrepresentation Claims

{¶ 4} Viewed in a light most favorable to Artisan, as the nonmoving party, the facts for purposes of summary judgment are as follows: In the summer of 2004, Artisan sought to obtain a commercial general-liability policy to replace a policy that was set to expire on September 1, 2004. As a result, it contacted its longtime agent, Gloria Davis, an account executive at Wells Fargo, for assistance. Artisan told Davis that it wanted a policy with a price structure rated on its [563]*563payroll instead of its sales, because of the variable costs of goods passed through to its customers. Davis understood that Artisan did not care how the price structure was labeled as long as it did not pay an inflated premium due to the cost of the goods it sold.

{¶ 5} Davis and her colleague Bob Grigas, also of Wells Fargo, contacted wholesale-insurance broker CRC for assistance in finding such a policy. Davis and Grigas told CRC that they were working on Artisan’s behalf. All of Davis and Grigas’s communications about Artisan took place with Terry McCann, a senior vice president at CRC. At some point, Wells Fargo and CRC focused their efforts on Burlington Insurance. CRC had a direct relationship with Burlington. Burlington communicated with CRC. CRC then communicated with Wells Fargo. And Wells Fargo then communicated with Artisan.

{¶ 6} According to Davis, she and Grigas told Artisan that Burlington had agreed to label the policy as one rated on “sales,” with the understanding that Burlington was using a method of calculating “sales” such that the final cost would be the amount that Artisan desired to pay. Because Artisan’s previous policy had been a “payroll-rated” policy, Burlington had purportedly agreed to calculate the price of its policy by subtracting four categories of goods expenses from Artisan’s gross sales for the purpose of substantially replicating the price of Artisan’s previous “payroll-rated” policy.

{¶ 7} More specifically, Davis testified that she and Grigas had defined the term “sales” in connection with the premium to Artisan because that was where the four price points had come from. Davis testified, “We all — Terry McCann, Bob Grigas, and I discussed what the definition of sales is. We then communicated that to Artisan who said, well the concern I have is that I’m going to get double billed. The cost of the pipe, I do something to it, I sell it again, I’m going to get hit for duplicate sales. So, that would then have been communicated back to Terry who supposedly communicated it back to Burlington.”

{¶ 8} Davis further testified about a copy of an email that Bob Grigas had sent to Artisan’s owner, Abbe Sexton, which stated that the premium of $30,000 was “in concrete.” Davis testified that the statement was Grigas’s “assurance to Abbe that the thirty thousand dollar number which is what Artisan had paid historically was going to continue to be the number she paid for general liability insurance.” Sexton additionally testified that based upon this email and her prior conversations with Davis and Grigas, Artisan had believed that it was entering into an agreement with Burlington to purchase the commercial general-liability policy at an agreed-upon price, subject to an audit that would confirm the numbers used to determine that price, based upon the definition of “sales” that had been communicated to Artisan. It was not until Burlington performed the [564]*564audit that Artisan discovered that there was allegedly no agreement with Burlington similar to what Wells Fargo and CRC had represented.

III. Artisan’s Negligent-Misrepresentation Claims

{¶ 9} In its sole assignment of error, Artisan argues that the trial court erred by granting summary judgment to Wells Fargo and CRC on its claims for negligent misrepresentation.

{¶ 10} We review the trial court’s decision on a summary-judgment motion de novo. Summary judgment is appropriate when “(1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, the conclusion is adverse to that party.”1

A. Economic-Loss Doctrine

{¶ 11} Artisan first argues that Wells Fargo and CRC were not entitled to summary judgment on the basis that its negligent-misrepresentation claims were barred by the economic-loss doctrine.

{¶ 12} The parties agree that Artisan’s premium payments represented economic losses. This court has held that the absence of privity of contract requires dismissal of a negligent-misrepresentation claim for economic loss.2 Because CRC had no contractual privity with Artisan, but instead dealt strictly with Wells Fargo, CRC was entitled to summary judgment on Artisan’s negligent-misrepresentation claim against it. But because the record demonstrates that Wells Fargo had a special relationship with Artisan akin to privity, the economic-loss doctrine did not bar the negligent-misrepresentation claim against it.

B. Expert Testimony

{¶ 13} Artisan next argues that expert testimony was not required to establish the standard of care that Wells Fargo owed to Artisan because its negligent-misrepresentation claim did not present a difficult or complex allegation of wrongdoing. We agree.

[565]

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Bluebook (online)
936 N.E.2d 114, 188 Ohio App. 3d 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burlington-insurance-v-artisan-mechanical-inc-ohioctapp-2010.