Wilks v. Manobianco

330 P.3d 1003, 235 Ariz. 246, 691 Ariz. Adv. Rep. 15, 2014 WL 3673601, 2014 Ariz. App. LEXIS 126
CourtCourt of Appeals of Arizona
DecidedJuly 22, 2014
DocketNo. 1 CA-CV 13-0216
StatusPublished
Cited by1 cases

This text of 330 P.3d 1003 (Wilks v. Manobianco) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilks v. Manobianco, 330 P.3d 1003, 235 Ariz. 246, 691 Ariz. Adv. Rep. 15, 2014 WL 3673601, 2014 Ariz. App. LEXIS 126 (Ark. Ct. App. 2014).

Opinions

OPINION

NORRIS, Judge:

¶ 1 The principal issue in this appeal is whether an insurance agent’s compliance with Arizona Revised Statutes (“A.R.S.”) section 20-259.01(B) (Supp. 2013), a statute that requires insurers to offer uninsured and un-derinsured motorist coverage to their insureds, bars an insured from asserting a professional negligence claim against an insurance agent for failing to obtain the under-insured motorist coverage the insured requested and the agent agreed to procure. As we explain, the statute does not bar such a claim.

FACTS AND PROCEDURAL BACKGROUND1

¶2 In 2001, Lesley Wilks contacted the John Manobianco Insurance Agency, Inc. seeking a “full coverage” insurance policy for the two vehicles she and her husband owned. The Agency procured a policy for the Wilks-es through State Farm Mutual Automobile Insurance Company that included uninsured motorist (“UM”) and underinsured motorist (“UIM”) coverage. In 2003, the Wilkses switched to another insurer and obtained a policy that also included UM and UIM coverage. In 2004, unhappy with the service they had received from the other insurer, Lesley contacted the Agency.

¶3 Accordingly to Lesley, she told the Agency she “wanted the same insurance back____I asked for the exact same coverage that I’d had previously, full coverage,” which would have included UM and UIM coverage. In response, the Agency told Lesley “they would give me the exact same coverage I had before.” Lesley then went to the Agency’s office and was “passed a bunch of documents” and asked to “[s]ign here, here, initial.” The documents included an Arizona Department of Insurance-approved form (“DOI form”) that set out options for the selection or rejection of UM/UIM coverage. Lesley signed but did not look at the DOI form which had been marked to select UM but not UIM coverage. As before, the Agency procured the insurance through State Farm. The State Farm policy provided UM but not UIM coverage.

¶4 In September 2008, an underinsured driver rear-ended Lesley. State Farm denied Lesley’s claim for UIM coverage because she had signed the DOI form.

¶5 The Wilkses sued the Agency and its president, John Manobianco, (collectively, the “Agency”) for professional negligence in failing to procure the UIM coverage despite Lesley’s request “for the exact same coverage [she] had before.”2 The superior court granted summary judgment to the Agency, finding its “compliance with AR.S. § 20-259.01 demonstrated that [it had] fulfilled [its] duties to Plaintiffs regarding offering the UM/UIM coverage” and had “breached no duty owed to Plaintiffs.”

DISCUSSION

¶ 6 On appeal, the Wilkses argue the superior court should not have rejected their professional negligence claim against the Agency because it breached its duty of care by failing to procure UIM insurance as part of the coverage Lesley requested. The Agency argues, however, that as a matter of law, it did not breach any duty it may have [248]*248owed the Wilkses because it complied with A.R.S. § 20-259.01(B) by providing Lesley with a written offer of UIM coverage, which she rejected by signing the DOI form. Reviewing each of these arguments de novo, Ballesteros v. Am. Standard Ins. Co. of Wis., 226 Ariz. 345, 347, ¶ 7, 248 P.3d 193, 195 (2011) (summary judgment and interpretation of statute reviewed de novo), we agree with the Wilkses.

I. The Wilkses’ Professional Negligence Claim Against the Agency

¶ 7 In general, “[a]n insurance agent owes a duty to the insured to exercise reasonable care, skill and diligence in carrying out the agent’s duties in procuring insurance.” Darner Motor Sales, Inc. v. Universal Underwriters Ins. Co., 140 Ariz. 383, 397, 682 P.2d 388, 402 (1984) (quoting Quality Furniture v. Hay, 61 Haw. 89, 93, 595 P.2d 1066, 1068 (1979)) (internal quotation marks omitted). Unless AR.S. § 20-259.01(B) modifies the Agency’s duty under these circumstances, see infra ¶¶ 11-21, the Wilkses presented a genuine dispute of material fact as to whether the Agency breached this duty by failing to procure a policy with UIM coverage.

¶8 As discussed, Lesley asked for the “exact same coverage that [she] had previously, full coverage,” which had included UIM coverage. In response, the Agency told her it would “give [her] the exact same coverage [she] had before.” According to the Wilkses’ standard of care expert, an agent must “review the existing coverage in the prior policy. And make sure, when a client comes in and says they want full coverage, that they are getting what they think they are getting” and “that the coverage is the same as what they had [before].” John Ma-nobianco also agreed an agent has a duty to provide clients with the “appropriate paperwork” so they can obtain the requested coverage. And, although the Agency did not have any records that specified or disclosed the coverages the Agency had procured for the Wilkses from State Farm in 2001, see swpra ¶ 2, Manobianeo acknowledged the Agency could have called State Farm to obtain this information. This evidence created a genuine dispute of material fact as to whether the Agency exercised reasonable care in carrying out its duties to procure the insurance the Wilkses had requested.

¶ 9 Despite this evidence, the Agency argues the superior court properly granted summary judgment because Lesley signed the DOI form without looking at it. Whether Lesley acted reasonably in signing the DOI form without looking at it or, instead, reasonably relied on the Agency’s statement it would “give [her] the exact same coverage [she] had before” presents a question for the finder of fact. Darner Motor Sales, Inc., 140 Ariz. at 398, 682 P.2d at 403 (“We believe that the ‘contributory negligence’ question here tons on the reasonableness of an insured’s failure to read the policy and his reliance on statements made by the agent. It is, therefore, a question for the trier of fact.” (citations omitted)); see also A.R.S. § 12-2505 (2003) (subject to certain exceptions, claimant’s contributory negligence will not bar action, but “full damages” shall be reduced in proportion to relative degree of claimant’s fault which proximately caused injury or death). Thus, although Lesley did not look at the DOI form before signing it, her failure to do so does not bar the Wilkses’ professional negligence claim as a matter of law.

¶ 10 Accordingly, on the record before us, the Wilkses presented a genuine dispute of material fact as to whether the Agency breached the applicable standard of care by failing to procure for the Wilkses the “exact same coverage” they had before. See generally Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007) (breach is factual issue usually decided by jury).3

II. A.R.S. § 20-259.01(B)

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Cite This Page — Counsel Stack

Bluebook (online)
330 P.3d 1003, 235 Ariz. 246, 691 Ariz. Adv. Rep. 15, 2014 WL 3673601, 2014 Ariz. App. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilks-v-manobianco-arizctapp-2014.