Trupiano v. Cincinnati Insurance Co.

654 N.E.2d 886, 1995 Ind. App. LEXIS 1020, 1995 WL 496958
CourtIndiana Court of Appeals
DecidedAugust 23, 1995
Docket30A01-9411-CV-372
StatusPublished
Cited by4 cases

This text of 654 N.E.2d 886 (Trupiano v. Cincinnati Insurance Co.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trupiano v. Cincinnati Insurance Co., 654 N.E.2d 886, 1995 Ind. App. LEXIS 1020, 1995 WL 496958 (Ind. Ct. App. 1995).

Opinions

OPINION

BAKER, Judge.

Appellants-plaintiffs Jerome and Jenny Trupiano appeal the trial court's grant of summary judgment in favor of appellees-de-fendants John J. Alkema, Syrett-Zeerip-Weidenfeller, Inc. (SZW), and Cincinnati Insurance (Cincinnati) on their claim of negli-genee. Specifically, the Trupianos allege that Alkema and SZW owed them a duty to advise them about underinsured motorist coverage and to provide an insurance policy with adequate limits for that coverage.

FACTS

SZW is an insurance agency, located in Michigan, which primarily sells casualty insurance. Alkema is an insurance agent employed by SZW and licensed to sell insurance in Michigan. Jerome Trupiano is the president, treasurer, and fifty-percent owner of a closely held corporation, Operator Specialty Company (OSC), which manufactures door and gate opening devices. OSC is a Michigan corporation with its principal place of business in Michigan.

Beginning in 1972 or 1973, Jerome hired Alkemga to be his personal insurance agent. Thereafter, in 1976, when Jerome formed OSC, he obtained insurance for the corporation through Alkema and SZW. Over the [888]*888next fourteen years, Alkema had a continuous relationship with OSC and advised OSC concerning various types of business coverage, including worker's compensation, comprehensive general liability, blanket building and contents insurance, loss of business income, and fleet automobile insurance. Initially, Alkema met directly with Jerome, at least onee a year, to discuss insurance matters. However, between 1985 and 1989, Alkema dealt with Sid Albrecht, the general manager of OSC. During that time, Alkema and Albrecht met annually to discuss and review OSC's insurance coverages. In addition, Alkema conducted an annual review of all the policies which included a review of values, building amounts, payroll, sales and premiums. Alkema also sent an annual letter to OSC detailing the type and amounts of insurance, losses incurred, projected payrolls, and premiums. In these letters, he also reviewed the adequacy of the various coverages and made recommendations regarding coverages which he felt were inadequate.

Beginning in 1985, OSC purchased an automobile insurance policy with Cincinnati through Alkema and SZW to insure its business fleet of seven automobiles. Thereafter, the policy was renewed each year, including the policy for the relevant period, May 1989 to May 1990. SZW and Alkema issued the policy in accordance with Michigan law.

In December 1989, Jerome and Jenny were involved in a two car collision in Hamilton County, Indiana. As a result, Jerome sustained serious injuries and incurred over $76,000 in medical expenses. The Cadillac that Jerome was driving was covered under OSC's policy which provided coverage to anyone occupying a covered vehicle. In addition, Jerome was specifically listed in the policy as an insured driver. OSC's policy contained $40,000 in underinsured motorist coverage. Under the policy, the amount of insurance carried by the tortfeasor would reduce the amount of underinsured motorist coverage payable under the policy. Here, the driver of the other car carried $100,000 of liability insurance and the policy limits have been paid to the Trupianos. Thus, because the Trupianos received $100,000 from the driver, they were not entitled to any benefits under their underinsured motorist coverage.1

On October 6, 19983, the Trupianos filed an amended complaint against Alkema, SZW, and Cincinnati alleging that the $40,000.00 underinsured motorist coverage was "wholly inadequate" and that Alkema and SZW were negligent in failing to advise them about and provide adequate limits of underinsured motorist coverage. The Trupianos' claim against Cincinnati is based on a theory of respondeat superior.

On April 21, 1994, Alkema and SZW filed a motion for summary judgment claiming that they did not owe a duty to the Trupianos to advise about and provide an insurance policy with a higher amount of underinsured motorist coverage. Thereafter, Cincinnati filed a motion for summary judgment. On August 2, 1994, the trial court granted Cincinnati's motion for sammary judgment and on August 11, 1994, the court granted Alkema and SZW's motion for summary judgment.

DISCUSSION AND DECISION

When reviewing a trial court's grant of summary judgment, we are bound by the same standard as the trial court and we will consider only the evidence which was designated at the summary judgment stage. Edrington v. Rush County Bd. of Com'rs (1995), Ind.App., 648 N.E.2d 397, 398. Summary judgment is appropriate where the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. We will liberally construe the non-movant's designated evidence in order to ensure that he is not denied his day in court. Rost v. Business Furniture Corp. (1993), Ind., 615 N.E.2d 431, 434.

The parties concede that Michigan substantive law is controlling. Thus, in order to recover on a theory of negligence, a plaintiff must show that the defendant owed [889]*889him a duty. The determination of whether a duty exists is a question of law for the court and, absent a duty, there is no actionable negligence. Peres v. KFC National Management Co. (1990) 183 Mich.App. 265, 454 N.W.2d 145, 146.

The Trupianos contend on appeal that the trial court erred in granting summary judgment because a genuine issue of material fact exists as to whether there was a special relationship between Alkema/SZW and OSC/Jerome which would create a duty to advise about the adequacy of the insurance coverage. Under Michigan law, an insurance agent generally does not have an affirmative duty to advise a client regarding the adequacy of a policy's coverage. Bruner v. League General Ins. Co. (1987) 164 Mich.App. 28, 416 N.W.2d 318, 320. Rather, the insured is obligated to read the policy and raise any questions concerning coverage within a reasonable time after its issuance. Id. However, a duty to advise may arise when a special relationship exists between the insurance agent or company and the policyholder. Id. In order to establish a special relationship, there must be something more than the ordinary insured-insurer relationship and a longstanding relationship alone is insufficient to create a special relationship. Id. at 821. Rather, in a longstanding relationship, there must be "some type of interaction on a question of coverage, with the insured relying on the expertise of the insurance agent to the insured's detriment." Id.

In Bruner, the plaintiff, who was injured in a hit-and-run accident in 1984, was insured under a no-fault policy issued by the defendant, an insurance agent, to her husband. The policy was issued in 1975 and renewed each year thereafter. Annually, the insurance agent sent a declaration page specifying the coverage provided under the policy. The policy in effect when the plaintiff was injured did not include uninsured motorist coverage, because the plaintiffs had never requested such protection. Id. at 819.

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Trupiano v. Cincinnati Insurance Co.
654 N.E.2d 886 (Indiana Court of Appeals, 1995)

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Bluebook (online)
654 N.E.2d 886, 1995 Ind. App. LEXIS 1020, 1995 WL 496958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trupiano-v-cincinnati-insurance-co-indctapp-1995.