Pro-T, LLC v. C O Brown Agency, Inc. d/b/a Lawrence-Bohmbach Insurance Agency, a "Trusted Source" Independent Insurance Agency

• Court: Court of Appeals of Minnesota
• Decided: August 10, 2015
• Docket: A14-2105
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A14-2105

Pro-T, LLC, Appellant,

vs.

C O Brown Agency, Inc. d/b/a Lawrence-Bohmbach Insurance Agency, a “Trusted Source” Independent Insurance Agency, et al., Respondents.

Filed August 10, 2015 Reversed and remanded Schellhas, Judge

Hennepin County District Court File No. 27-CV-13-20799

Timothy A. Sullivan, Kerry C. Raymond, Best & Flanagan LLP, Minneapolis, Minnesota (for appellant)

Mark A. Solheim, Paula Duggan Vraa, Jennifer L. Young, Larson • King, LLP, St. Paul, Minnesota (for respondents)

Considered and decided by Larkin, Presiding Judge; Schellhas, Judge; and Reyes,

Judge.

UNPUBLISHED OPINION

SCHELLHAS, Judge

In this case involving claims of negligent procurement of insurance and breach of

fiduciary duty, appellant challenges summary judgment for respondent, arguing that the district court abused its discretion by disregarding appellant’s expert’s affidavit on the

basis that the expert was not qualified. We reverse and remand.

FACTS

In or about August 2011, appellant Pro-T LLC, acting as general contractor, began

converting a single-story building that it owned into a commercial multi-sport facility

(conversion project). Terry Lynner, Pro-T’s sole member and chief manager, asked

respondent Jay Bohmbach, an insurance producer and Lynner’s longtime friend, to fulfill

Pro-T’s insurance needs in connection with the conversion project.1 Bohmbach first

procured property and general liability insurance from West Bend Mutual for Pro-T.

Bohmbach also toured the building with Lynner and discussed the conversion project

with him. In or about November 2011, Bohmbach procured builder’s risk insurance from

Hanover Insurance Co. for Pro-T. After procuring the builder’s risk insurance and before

August 31, 2012, Bohmbach toured the building with Lynner at least two more times.

By September 1, 2012, the conversion project had progressed to the removal of the

walls and roof on the east side of the building and the erection of about 11 steel beams in

the building. On that day, one of the steel beams tipped over, knocking down the other

beams in a “domino reaction” that resulted in damage to the foundation, the foundation

1 The parties do not dispute that Jay Bohmbach was, at all relevant times, an employee of respondent C O Brown Agency Inc., d/b/a/ Lawrence-Bohmbach Insurance Agency. C O Brown may be vicariously liable for Jay Bohmbach’s tortious acts and/or omissions, if any. See D.M.S. v. Barber, 645 N.W.2d 383, 390 (Minn. 2002) (stating that “[u]nder the well-established principle of respondeat superior, an employer is vicariously liable for the torts of an employee committed within the course and scope of employment”). Consequently, this opinion refers to Jay Bohmbach and C O Brown, individually or collectively, as “Bohmbach.”

2 support system, the walls on the west side of the building, and the beams themselves.

Pro-T submitted a claim to Hanover in the amount of $1,450,000, seeking coverage under

its builder’s risk policy. Hanover rejected all but $82,957.86 of that claim. Pro-T sued

Hanover, alleging wrongful denial of coverage under its builder’s risk policy.2 Pro-T also

sued Bohmbach in a separate action, asserting claims of negligence, breach of fiduciary

duty, and breach of contract. The district court granted summary judgment to Bohmbach

on the ground that Pro-T was required to, and failed to, offer admissible expert testimony

to support its claims.

This appeal follows.3

DECISION

“If scientific, technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education, may testify thereto in the form of

an opinion or otherwise.” Minn. R. Evid. 702. “[E]xpert testimony is admissible if:

(1) the witness is qualified as an expert; (2) the expert’s opinion has foundational

reliability; (3) the expert testimony is helpful to the jury; and (4) if the testimony involves

a novel scientific theory, it must satisfy the Frye-Mack standard.” State v. Obeta, 796

N.W.2d 282, 289 (Minn. 2011). “All expert testimony must satisfy the first three parts of

the Rule 702 test.” Doe v. Archdiocese of St. Paul, 817 N.W.2d 150, 164 (Minn. 2012).

2 Pro-T indicates in its principal brief that the insurance-coverage action resulted in a settlement. The record does not contain evidence of any such settlement. 3 Pro-T does not appeal summary judgment on its breach-of-contract claim.

3 “[The supreme court] ha[s] repeatedly emphasized that the most important factor

for determining an expert witness’s qualifications under Rule 702 is practical

experience.” Beck v. Cnty. of Todd, 824 N.W.2d 636, 640 (Minn. 2013). “Minnesota

courts typically have been ‘liberal’ in qualifying experts by virtue of their experience.”

Poppler v. Wright Hennepin Coop. Elec. Ass’n, 834 N.W.2d 527, 538 (Minn. App. 2013)

(quoting State v. Moore, 458 N.W.2d 90, 96 (Minn. 1990)), aff’d, 845 N.W.2d 168

(Minn. 2014). Appellate courts review a district court’s determination of expert witness

qualification for abuse of discretion. Goeb v. Tharaldson, 615 N.W.2d 800, 815 (Minn.

2000). “A district court abuses its discretion when its decision is based on an erroneous

view of the law or is inconsistent with the facts in the record.” In re Pamela Andreas

Stisser Grantor Trust, 818 N.W.2d 495, 508 (Minn. 2012).

Pro-T opposed Bohmbach’s summary-judgment motion on its claims of

negligence and breach of fiduciary duty with an affidavit of its proposed insurance

expert, Paul Amoruso. Amoruso opined, among other things, that Bohmbach owed

certain duties to Pro-T, that Bohmbach breached those duties, that Bohmbach’s breach

proximately caused Pro-T damages, and that Bohmbach and Pro-T had a “special

relationship.” Reasoning that neither Amoruso’s affidavit nor his curriculum vitae (CV)

addressed “his knowledge, skill, experience, training, and education for soliciting[,] . . .

obtaining[, or adjusting] commercial builder’s risk policies,” the district court determined

that Amoruso was not qualified to give expert testimony in support of Pro-T’s claims. We

disagree.

4 Amoruso’s affidavit and CV clearly demonstrate that he is a seasoned insurance

professional. In his affidavit, Amoruso stated that “[he] ha[s] worked in the insurance

industry as a risk manager, producer, and consultant for over 30 years.” The affidavit and

CV indicate that Amoruso is licensed to sell personal and commercial lines of property

and casualty insurance in Massachusetts, Connecticut, Florida, and New Jersey and that

he has been an instructor at The Saval Education Center at The Massachusetts Insurance

Library for about 12 years. Amoruso’s CV states that, in connection with his consulting

work, Amoruso “[t]estif[ies] at trials as to accepted insurance practices,” “[p]rovide[s]

insight on insurance issues to insurance companies and law firms,” and “[r]espond[s] to

issues concerning insurance companies and insurance agents.” In light of the liberal,

experience-centered test for expert qualification, see Poppler, 834 N.W.2d at 538, the

record leads us to conclude that the district court abused its discretion in determining that

Amoruso was not qualified to give expert testimony in support of Pro-T’s claims.

We remand to the district court for application of the second and third parts of the

four-part test for admissibility of expert testimony. See Archdiocese of St. Paul, 817

N.W.2d at 164; Obeta, 796 N.W.2d at 289. If the district court determines that

Amoruso’s testimony is admissible under that test, the court shall reconsider Bohmbach’s

summary-judgment motion in light of that testimony. See Southcross Commerce Ctr.,

LLP v. Tupy Props., LLC, 766 N.W.2d 704, 711 (Minn. App. 2009) (reversing summary

judgment for defendant, which judgment resulted from district court’s failure to apply

rebuttable presumption in plaintiff’s favor, and remanding for district court to reconsider

plaintiff’s cross-motion for summary judgment after determining whether defendant

5 rebutted presumption); Doe v. F.P., 667 N.W.2d 493, 495, 500 (Minn. App. 2003)

(reversing summary judgment with respect to claims dismissed based on district court’s

erroneous conclusion that statutes were unconstitutional and remanding for district court

to reconsider cross-motions for summary judgment in light of statutes’ constitutionality,

reasoning that “[t]his court cannot address what the district court did not address” (citing

Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988))), review denied (Minn. Oct. 21,

2003).

We also note that the district court determined that admissible expert testimony

was required to establish the duty and breach elements of Pro-T’s claims of negligence

and breach of fiduciary duty. Because Pro-T does not expressly challenge that

determination on appeal, we do not address it. See In re Application of Olson for Payment

of Servs., 648 N.W.2d 226, 228 (Minn. 2002) (stating that “[i]t is axiomatic that issues

not argued in the briefs are deemed waived on appeal” (quotation omitted)).

Reversed and remanded.