Hague v. Bill Houston ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CHRISTINE HAGUE, individually and on behalf of MacAllister and
Aiden Hague, minors, Plaintiff/Appellant,
v.
BILL HOUSTON INSURANCE AGENCY, an Arizona Insurance Broker,
Defendant/Appellee.
_______________________________________________________________
CHRISTINE HAGUE, individually and on behalf of MacAllister and
Aiden Hague, minors, Plaintiff/Appellee,
v.
BRIAN STEVENS and ERIKA STEVENS, husband and wife,
Defendants/Appellants.
No. 1 CA-CV 13-0613
FILED 9-8-2015
Appeal from the Superior Court in Maricopa County
No. CV2010-010618
The Honorable Lisa Daniel Flores, Judge
AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH
DIRECTIONS
COUNSEL
Catanese Law Firm, P.C., Phoenix
By David J. Catanese
Counsel for Plaintiff/Appellant and Plaintiff/Appellee Christine Hague
David Bell & Associates, P.L.L.C., Phoenix
By David M. Bell, Howard L. Andari
Counsel for Defendant/Appellee Bill Houston Insurance Agency and
Defendants/Appellants Brian Stevens and Erika Stevens
MEMORANDUM DECISION
Judge Winthrop delivered the decision of the Court, in which Presiding
Judge Patricia K. Norris and Judge John C. Gemmill joined.
W I N T H R O P, Judge:
¶1 After her husband Christopher died as the result of a motor
vehicle accident, Christine Hague (“Hague”) filed a lawsuit individually
and on behalf of their sons, MacAllister and Aiden Hague, against two
independent State Farm insurance agents - the Bill Houston Insurance
Agency, Inc. (“the Houston Agency”) and Brian Stevens (“Stevens”)1
(collectively, “Defendants”) – alleging each had fallen below the applicable
standard of care by failing to properly advise her of the benefits of
purchasing uninsured motorist (“UM”) and underinsured motorist
(“UIM”) insurance coverage (collectively, “UM/UIM” coverage). Hague
alleged that, had Defendants properly advised her before the accident, she
would have purchased UM/UIM coverage limits for the motorcycle in an
amount equal to her bodily injury liability (“liability”) coverage limits,
which were $500,000 per person/$500,000 per accident
(“$500,000/$500,000”), rather than the $100,000/$300,000 UM/UIM
coverage limits she carried.
¶2 This decision addresses Hague’s appeal of summary
judgment in favor of the Houston Agency and the denial of Hague’s motion
1 Hague named both Brian Stevens and his wife, Erika Stevens, as
defendants. Erika Stevens’ only alleged involvement in this case is as Brian
Stevens’ spouse; accordingly, we refer to both Brian Stevens individually
and Brian and Erika Stevens collectively as “Stevens.”
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for a new trial, and Stevens’ appeal of the trial court’s order granting
Hague’s motion for a new trial, which reversed the court’s previous
decision to grant a directed verdict2 in favor of Stevens. For the following
reasons, we affirm summary judgment in favor of the Houston Agency and
the trial court’s denial of Hague’s motion for a new trial as to the Houston
Agency, reverse the court’s order granting Hague’s motion for a new trial
as to Stevens, and remand with directions to enter judgment in favor of
Defendants.
FACTS AND PROCEDURAL HISTORY3
¶3 Before Hague settled in Arizona, she lived in New York, and
her mother, Jacqueline Polak (“Polak”), typically purchased automobile
insurance for her through a State Farm insurance agent. In December 2000,
Hague and Christopher moved from New York to Arizona, and they
married in May 2001. At the time of the move, Hague owned a 1995 Saturn
and a 1973 International Scout Jeep. After relocating to Arizona, Hague
continued to almost exclusively rely on Polak for help regarding her
insurance needs, although on a few occasions Hague handled details such
as changing her address without Polak’s help.4
¶4 In March 2001, Hague went to the Houston Agency, an
independent State Farm insurance agent located in Scottsdale, where she
purchased automobile insurance policies for the Saturn and the Jeep, each
with $25,000/$50,000 liability and UM coverage limits; Hague expressly
rejected UIM coverage. Hague later replaced the Saturn with a 2000 Ford
Expedition, and in September 2001, Polak and Hague went to the Houston
Agency, where they obtained $100,000/$300,000 liability coverage limits on
the Ford, continued the $25,000/$50,000 liability coverage limits on the
Jeep, and purchased $100,000/$300,000 UM coverage limits for both
vehicles, but declined UIM coverage as to each vehicle. By January 2004,
the Ford had $100,000/$300,000 liability coverage limits, the Jeep had
$25,000/$50,000 liability coverage limits, and both vehicles had
2 We alternately refer to the motion as one for judgment as a matter of
law. See Ariz. R. Civ. P. 50(a) (“Judgment as a Matter of Law”).
3 Although some minor factual disputes exist among the parties, the
material facts of this case are generally undisputed.
4 In 2006, Polak moved to Arizona, where she lived with Hague and
Christopher.
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$100,000/$300,000 UM/UIM coverage limits. In other words, the Ford’s
liability and UM/UIM coverage limits were equal, and the UM/UIM
coverage limits on the Jeep were significantly larger than the liability
coverage limits.
¶5 In April 2005, Polak, on behalf of herself and Hague,
purchased insurance for a 2004 Yamaha 600 CC motorcycle she had given
to Christopher. The Yamaha insurance had liability and UM/UIM
coverage limits set equally at $100,000/$300,000.5
¶6 In June 2005, Bill Houston retired and closed the Houston
Agency, and Mike Kish (“Kish”), a State Farm agency field executive, was
assigned as the temporary servicing agent for Hague and Polak. In October
2005, insurance on the Yamaha was renewed through Kish, with liability
and UM/UIM coverage limits again set equally at $100,000/$300,000.
¶7 On December 12, 2005, Polak increased the liability coverage
limits of all three vehicles – the Yamaha, Ford, and Jeep - from
$100,000/$300,000 to $500,000/$500,000, but she did not increase the
UM/UIM coverage limits on the vehicles. Instead, on December 20, 2005,
Hague signed an “Acknowledgement of Coverage Selection or Rejection”
form expressly rejecting the opportunity to increase the UM/UIM coverage
limits on the Jeep, and on January 10, 2006, Polak signed
Selection/Rejection forms acknowledging her decision to increase the
liability coverage limits for the Yamaha and Ford policies to
$500,000/$500,000, but rejecting the opportunity to increase the UM/UIM
coverage limits on those policies.6
5 It is irrelevant whether the UM/UIM election was made by Polak or
Hague because both were named as insureds under the Yamaha policy and
the election applied to all persons named as insureds. See Ariz. Rev. Stat.
(“A.R.S.”) § 20-259.01(B) (2015) (“The selection of limits or rejection of
coverage by a named insured or applicant on a form approved by the
director shall be valid for all insureds under the policy.”).
6 The Selection/Rejection forms warned in part as follows:
Arizona law requires that insurers make available Uninsured
Motor Vehicle Coverage. Uninsured Motor Vehicle Coverage
pays you and your passengers for bodily injury damages
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¶8 Meanwhile, in letters dated December 27, 2005, State Farm
informed Hague and Polak that, effective January 1, 2006, Stevens would
become their new State Farm servicing agent. Kish’s office faxed the signed
Selection/Rejection forms to Stevens on January 22, 2006. As a result, the
three motor vehicle policies in the Hague household – the Yamaha, Ford,
resulting from an accident for which an uninsured driver is
legally liable up to your coverage limits.
Arizona law also requires that insurers make available
Underinsured Motor Vehicle Coverage. Underinsured Motor
Vehicle Coverage protects you if you are involved in an
accident for which the other driver is legally liable and bodily
injury damages to you or your passengers exceed the other
driver’s bodily injury liability limits. It provides protection
up to your Underinsured Motor Vehicle Coverage limits for
damages in excess of the amount collected from the other
driver or the other driver’s insurance.
I acknowledge that in accordance with the law of the State of
Arizona the company has given me the opportunity to
purchase Uninsured Motor Vehicle Coverage and
Underinsured Motor Vehicle Coverage in an amount equal to
my motor vehicle bodily injury liability coverage.
....
I understand and agree that this rejection of coverage or
selection of limits will apply to this policy, to any policy that
is a reinstatement, transfer, substitution or modification of
this policy and to all future renewals of this policy or such
other policy. I also understand that this rejection or selection
is valid and binding on all insureds, including my spouse,
under the policy. If I decide to select another option at some
future time, I must let the company know in writing.
I have read and I understand the above explanation and offer
of Uninsured Motor Vehicle Coverage and Underinsured
Motor Vehicle Coverage. I also understand that I have the
opportunity to ask for an additional explanation from my
agent.
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and Jeep – all had liability coverage limits of $500,000/$500,000 and
UM/UIM coverage limits of $100,000/$300,000. The $500,000/$500,000
liability and $100,000/$300,000 UM/UIM coverage limits remained on the
Yamaha, and Stevens remained Hague’s insurance agent, through the time
of Christopher’s accident.
¶9 On April 2, 2008, Christopher died when the Yamaha
motorcycle he was operating collided with the back (rear passenger-side
portion) of a van making a left turn at an intersection. Immediately before
the accident, Christopher was observed weaving through traffic by making
multiple lane changes at a high rate of speed while travelling northbound
on Scottsdale Road. At the time of the collision, he was travelling
approximately eighty-five miles per hour in a posted forty-five mile-per-
hour speed zone, and witnesses observed the motorcycle travelling on one
wheel shortly before impact.7 After Christopher’s death, the van driver’s
insurance company, without formally acknowledging any fault on the part
of its insured, paid its liability limit of $100,000, and State Farm paid its UIM
limit of $100,000.
¶10 On March 29, 2010, Hague filed a complaint, alleging the
insurance proceeds she received were insufficient to fully compensate her
for Christopher’s death, and the Houston Agency and Stevens had fallen
below the necessary standard of care in acting as her insurance agents
because they had failed to recommend the Yamaha’s UM/UIM coverage
limits be increased to equal its liability coverage limits. Hague alleged that,
when she and Polak went to the Houston Agency to purchase automobile
insurance in 2001, although they purchased liability insurance, they
declined to purchase UM/UIM insurance with coverage limits equal to the
liability insurance based on information they received from a female
insurance broker (later identified by Hague only as “Patty”), who informed
them that purchasing such a significant amount of UM/UIM insurance
“was only necessary if they did not have good health care insurance
7 The details of the accident recounted in paragraph nine of this
decision were taken from the Scottsdale Police Department’s traffic
accident report. That report was attached as an exhibit to Defendants’
separate statement of facts in support of their motion for summary
judgment and listed as a defense exhibit at trial, but was not offered or
admitted in evidence at trial. Christopher was listed on the accident report
as travelling at a “speed too fast for conditions,” and the driver of the van
was documented as having taken “no improper action.”
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coverage.”8 Hague further alleged that, after Stevens became her insurance
agent, he failed to explain the risks, consequences, or benefits of UM/UIM
coverage, even after she purchased insurance for the motorcycle. Hague
maintained that, had she been properly advised about the protections
afforded by UM/UIM coverage, she would have purchased UM/UIM
insurance with coverage limits equal to her liability coverage limits.
¶11 Defendants moved for summary judgment on Hague’s claims
against them, arguing that, for several years before the Yamaha policy was
purchased, Hague and/or Polak had selected UM/UIM coverage limits for
Hague’s policies that were equal to or greater than her liability coverage
limits, indicating Hague had not relied on the advice allegedly given by
“Patty.” Defendants further noted Polak had initially purchased insurance
for the Yamaha from the Houston Agency with equal liability and
UM/UIM coverage limits, again demonstrating her lack of reliance on
“Patty’s” advice, and when the decision was later made to increase the
liability coverage limits of the Yamaha policy to $500,000/$500,000 but
continue the UM/UIM coverage limits at $100,000/$300,000, Polak had
signed the Selection/Rejection form warning her of the potential
consequences of doing so. Citing A.R.S. § 20-259.01(A) and (B), Defendants
maintained (1) they had fulfilled the statutory duty of offering, in writing,
UM/UIM coverage with limits not less than the liability limits of the policy;
(2) under Tallent v. National General Insurance Co., 185 Ariz. 266, 268, 915 P.2d
665, 667 (1996), no duty existed for them to provide a further explanation of
UIM coverage; (3) any duty of the insurance agents did not go beyond that
of the principal insurance company (State Farm); and (4) even assuming
Defendants had such duties, those duties were not breached. Hague
responded that, although A.R.S. § 20-259.01(A) and (B) set forth the duties
of an insurance company, the statute did not refer to insurance agents, who
Hague asserted were subject to a heightened standard of care given their
special relationship with their insureds. Following briefing and oral
argument, the trial court took the matter under advisement, and later
8 The complaint did not specify the date of the 2001 meeting at the
Houston Agency, but subsequent testimony by Hague and Polak made
clear the complaint was referring to the September 2001 meeting, at which
Polak and Hague obtained the $100,000/$300,000 liability coverage limits
on the Ford, continued the $25,000/$50,000 liability coverage limits on the
Jeep, and purchased $100,000/$300,000 UM coverage limits for both
vehicles, but declined UIM coverage as to both vehicles. As acknowledged
in her complaint and reflected in the record, however, Hague subsequently
purchased $100,000/$300,000 UM/UIM coverage limits on the vehicles.
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granted summary judgment in favor of the Houston Agency, but denied
summary judgment as to Stevens.9
¶12 The matter proceeded to a jury trial on Hague’s claim against
Stevens. Hague testified and presented testimony from Polak, Stevens, and
Frederick C. Berry, Jr., (“Berry”) who opined as to the applicable standard
of care for a reasonable insurance agent.10
¶13 After Hague rested at the close of her case-in-chief, Stevens
moved for a directed verdict, arguing that (1) A.R.S. § 20-259.01(A) and (B)
established the statutory duties applicable to Stevens, and Stevens had met
the applicable standard of care by providing Hague and Polak a written
offer of UM/UIM coverage limits equal to the liability coverage limits on
the Yamaha, and (2) in any event, Hague had not met her burden of
showing she had been damaged by any breach on the part of Stevens
because she had failed to provide evidence the driver of the van was at fault
for the April 2008 accident; thus, Hague could not show she would have
been eligible to recover more than the $100,000 UIM coverage limits she had
9 With regard to Stevens, the court reasoned as follows:
As for the policies sold to [Hague] and/or Ms. Polak
after 2005, it is undisputed that the UM/UIM coverage
purchased varied; in some years, it equaled the bodily injury
coverage and in other years, it was less than the bodily injury
coverage. The parties’ experts disagree about whether
Defendant Brian Stevens had a duty to explain the risks and
benefits of UM/UIM coverage to Plaintiff and/or Ms. Polak
in this situation, and whether he met the standard of care for
a reasonable seller of insurance coverage.
10 Berry testified in part that, in his judgment, the standard of care for
an insurance professional in Arizona is to not only fully explain the risks
and benefits of UM/UIM coverage, but to strongly recommend the insured
purchase UM/UIM coverage equal to his or her liability limits. Berry
opined that, by failing to do so once he became aware of the “gap” in
coverage, Stevens fell below the standard of care of an insurance agent.
Berry further maintained that, although providing the written form
required by A.R.S. § 20-259.01 addressed the obligation of the insurance
company to make UM/UIM coverage available, “providing the form has
nothing to do with the standard of care of insurance producers in Arizona,”
and “[t]here is no case law at all governing the standard of care for
insurance producers in Arizona like Mr. Stevens. It doesn’t exist.”
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already received from her State Farm policy. After considering lengthy
argument by Hague, the trial court found Hague had failed to present
evidence of the facts of the accident sufficient to establish fault, and denied
motions to reopen by Hague. The trial court then granted Stevens’ motion
for a directed verdict.
¶14 The trial court entered a signed judgment in favor of
Defendants, and Hague moved for a new trial. The trial court denied the
motion for a new trial as to the Houston Agency but granted the motion as
to Stevens after concluding Hague’s testimony had been sufficient to find
some degree of fault on the part of the van’s driver.
¶15 On September 3, 2013, the trial court issued a signed minute
entry entering judgment in favor of the Houston Agency and granting
Hague a new trial as to Stevens. Both Hague and Stevens timely appealed.
This court has jurisdiction pursuant to A.R.S. § 12-2101(A)(1) and (5)(a)
(Supp. 2014).
ANALYSIS
I. Standard of Review
¶16 Summary judgment is proper when no genuine issue of
material fact exists and the moving party is entitled to judgment as a matter
of law. Ariz. R. Civ. P. 56(a); accord Orme Sch. v. Reeves, 166 Ariz. 301, 309,
802 P.2d 1000, 1008 (1990). A motion for summary judgment should be
granted if the facts produced in support of the claim or defense have so little
probative value, given the quantum of evidence required, that no
reasonable person could find for its proponent. See Orme Sch., 166 Ariz. at
309, 802 P.2d at 1008. In deciding a motion for summary judgment, a trial
court applies the same standards that it uses in ruling on a motion for
judgment as a matter of law. See id.
¶17 Judgment as a matter of law lies where “there is no legally
sufficient evidentiary basis for a reasonable jury to find for that party on
that issue.” Ariz. R. Civ. P. 50(a). The underlying question is whether “any
substantial evidence could lead reasonable persons to find the ultimate
facts to support a verdict.” Goodman v. Physical Res. Eng’g, Inc., 229 Ariz. 25,
28, ¶ 6, 270 P.3d 852, 855 (App. 2011) (citations omitted).
¶18 Instead of the de novo standard of appellate review applicable
when evaluating a grant of summary judgment or judgment as a matter of
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law,11 we apply an abuse of discretion standard when reviewing a trial
court’s decision to grant or deny a new trial. See McBride v. Kieckhefer
Assocs., Inc., 228 Ariz. 262, 266, ¶ 16, 265 P.3d 1061, 1065 (App. 2011) (citing
City of Glendale v. Bradshaw, 114 Ariz. 236, 237-38, 560 P.2d 420, 421-22
(1977); Delbridge v. Salt River Project Agric. Improvement & Power Dist., 182
Ariz. 46, 53, 893 P.2d 46, 53 (App. 1994)). “We apply a more liberal standard
when reviewing an order granting a new trial than an order denying one.”
Id. (citing Caldwell v. Tremper, 90 Ariz. 241, 246, 367 P.2d 266, 269 (1962);
Englert v. Carondelet Health Network, 199 Ariz. 21, 25, ¶ 5, 13 P.3d 763, 767
(App. 2000)).
II. The Houston Agency
¶19 Hague argues the trial court erred in granting summary
judgment in favor of the Houston Agency and in denying her motion for a
new trial. We disagree.
¶20 In Arizona, every insurer12 writing automobile liability or
motor vehicle liability policies must offer in writing to the named insureds
UM/UIM coverage with limits not less than the bodily injury liability limits
of the policy. A.R.S. § 20-259.01(A)-(B). However, our supreme court has
consistently rejected imposing a duty on insurers to further explain
UM/UIM coverage to prospective purchasers of that coverage. See Tallent,
185 Ariz. at 268, 915 P.2d at 667 (“The imposition of a requirement for an
explanation of coverage is, we believe, both unwarranted by the statute and
unwise.”); accord Ballesteros v. Am. Standard Ins. Co. of Wis., 226 Ariz. 345,
350, ¶ 22, 248 P.3d 193, 198 (2011) (rejecting imposing a comprehension
requirement onto § 20-259.01, despite its “remedial” nature). See also
Newman v. Cornerstone Nat’l Ins. Co., 237 Ariz. 35, 36-37, ¶¶ 7-11, 344 P.3d
337, 338-39 (2015) (applying the reasoning of Tallent and Ballesteros in
holding that a written notice offering UM/UIM coverage does not need to
include the premium price for a valid written offer of UIM coverage under
A.R.S. § 20-259.01); accord Garcia v. Farmers Ins. Co. of Ariz., 191 Ariz. 410,
412, ¶ 19, 956 P.2d 537, 539 (App. 1998) (citing Tallent, 185 Ariz. at 268, 915
P.2d at 667).
11 See Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003)
(summary judgment); Shoen v. Shoen, 191 Ariz. 64, 65, 952 P.2d 302, 303
(App. 1997) (directed verdict/judgment as a matter of law).
12 An “insurer” is defined as “every person engaged in the business of
making contracts of insurance.” A.R.S. § 20-104 (2015).
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¶21 Against this statutory backdrop, we also recognize that, as a
general rule, persons who hold themselves out to the public as possessing
special knowledge, skill, or expertise must perform their activities in a
manner commensurate with the standard of their profession; otherwise,
they may be held liable under ordinary tort principles of negligence for
damage caused by their failure to adhere to the standard. Darner Motor
Sales, Inc. v. Universal Underwriters Ins. Co., 140 Ariz. 383, 398, 682 P.2d 388,
403 (1984). Insurance agents perform a personal service for their clients,
advising them about the types and extent of coverage available;
accordingly, insureds often rely, not unreasonably, on the agent’s expertise
when choosing an appropriate insurance contract. Id. (citations omitted).
Consequently, in Arizona, insurance agents owe “a duty of ‘reasonable
care, skill, and diligence’ in dealing with clients.” Webb v. Gittlen, 217 Ariz.
363, 367, ¶ 20, 174 P.3d 275, 279 (2008) (quoting Darner, 140 Ariz. at 397, 682
P.2d at 402); accord Wilks v. Manobianco, 237 Ariz. 443, 445, ¶ 6, 352 P.3d 912,
914 (2015) (holding that an insurance agent’s compliance with A.R.S. § 20-
259.01 does not preclude a common law negligence claim against the agent
for failure to procure UIM coverage the insured has allegedly requested);
see also Sw. Auto Painting & Body Repair, Inc. v. Binsfeld, 183 Ariz. 444, 448,
904 P.2d 1268, 1272 (App. 1995) (holding that a material question of fact
existed whether an insurance agency had breached the standard of care
applicable to the duty owed its clients). The general rule in Arizona is that
a defendant may be held liable if the defendant’s conduct contributed to the
result and if that result would not have occurred ‘but for’ the defendant’s
conduct. Ontiveros v. Borak, 136 Ariz. 500, 505, 667 P.2d 200, 205 (1983).
¶22 In granting summary judgment in favor of the Houston
Agency, the trial court reasoned as follows:
It is undisputed that Defendant Bill Houston Agency
sold the initial policy [covering the Yamaha motorcycle] to
Ms. Polak in April 2005, and the policy sold had equal limits
for bodily injury coverage and UM/UIM coverage. This was
the only transaction between Plaintiff (and/or her mother)
and Defendant Bill Houston Agency. The parties’ experts
agree that Defendant Bill Houston Agency was not required
to provide any explanation of UM/UIM coverage in this
situation.
The Court finds that there is no genuine issue of
material fact with regard to Defendant Bill Houston Agency’s
meeting the standard of care when he sold the initial policy in
April 2005.
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IT IS ORDERED granting summary judgment as to all
claims against Defendant Bill Houston Agency.
¶23 Hague argues the Houston Agency had a duty to exercise
reasonable care, skill, and diligence in offering her insurance, and the
standard of care applicable to its duty required the Houston Agency to
strongly recommend she purchase UM/UIM coverage at limits equal to or
greater than the liability limits. Hague maintains the trial court erred in
granting summary judgment because, had the court applied the standard
of care advocated by her expert witness (Berry), she could have
demonstrated a breach of that standard of care and resulting harm arising
directly from that breach.
¶24 In analyzing Hague’s argument with respect to the Houston
Agency, we need not and do not decide whether Arizona should adopt the
standard of care espoused by Hague and Berry. Instead, we conclude that,
even were such a heightened standard of care to apply, summary judgment
was appropriate because, as recognized by the trial court, the undisputed
material facts demonstrate the Houston Agency met that standard when it
sold the initial Yamaha policy to Polak in April 2005. Hague’s core
allegation against the Houston Agency is that Polak would have purchased
UM/UIM insurance with coverage limits equal to the liability coverage
limits had Polak and Hague been properly advised about the protections
afforded by UM/UIM coverages. In fact, however, that is exactly what
Polak did when she purchased the Yamaha policy with identical
$100,000/$300,000 liability and UM/UIM coverage limits. The Houston
Agency offered, and Polak accepted, UM/UIM coverage limits “not less
than the liability limits for bodily injury.” A.R.S. § 20-259.01(A)-(B). Polak
and Hague did not alter those coverage limits when renewing the Yamaha
policy in October 2005, and by that time, Mike Kish had replaced Bill
Houston as their servicing agent. Consequently, when Polak decided in
December 2005 to increase the liability coverage limits of the Yamaha policy
to $500,000/$500,000 without a corresponding increase in the UM/UIM
coverage limits, the Houston Agency was no longer her servicing insurance
agent, and neither Hague nor Polak ever contacted the Houston Agency for
the transaction of increasing the liability coverage limits of the Yamaha
policy without simultaneously increasing the UM/UIM coverage limits.
¶25 Moreover, even were we to conclude the Houston Agency
earlier breached the applicable standard of care through the alleged
statements of its agent, “Patty,” the facts make clear that both Hague and
Polak rejected “Patty’s” alleged advice long before purchasing insurance
for the Yamaha from the Houston Agency. In fact, by no later than January
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2004, the Ford had equal $100,000/$300,000 liability and UM/UIM
coverage limits, and the Jeep had $100,000/$300,000 UM/UIM coverage
limits, despite having only $25,000/$50,000 liability coverage limits. Thus,
the premise of Hague’s argument - that she and Polak believed UM/UIM
coverage was unnecessary based on “Patty’s” alleged statement – falls flat
because her and Polak’s actions belie her argument. Hague and Polak
obviously knew enough about the nature and value of UM/UIM insurance
coverage to purchase a significant amount of that coverage (in an amount
equal to or greater than their liability coverage limits) under their vehicles’
policies, and it is simply too speculative for a trier of fact to reasonably
conclude they relied on “Patty’s” alleged bad advice years later when
purchasing from a different agent, especially when they did not rely on that
advice when buying insurance through the first agent.13 Because Hague
cannot demonstrate that any breach of the standard of care by the Houston
Agency – no matter the standard - caused her damage, the trial court did
not err in granting summary judgment in favor of the Houston Agency or
abuse its discretion in denying Hague’s motion for a new trial.14 See Orme
Sch., 166 Ariz. at 309, 802 P.2d at 1008; Pullen v. Pullen, 223 Ariz. 293, 296,
¶ 10, 222 P.3d 909, 912 (App. 2009).
III. Stevens
¶26 Stevens argues the trial court erred in reversing judgment as
a matter of law and granting Hague a new trial because (1) Stevens had no
duty to explain UM/UIM coverage beyond the statutory requirements of
A.R.S. § 20-259.01, and (2) Hague failed to establish legal entitlement to
UM/UIM benefits with substantial evidence of fault on the part of the van
driver. Because we find the second issue dispositive, we address only that
issue.
¶27 Hague’s UIM claim arises from legal rights to pursue a
recovery against an underinsured third-party tortfeasor (the van driver).
13 Further, on multiple occasions over many years, Hague and Polak
signed UM/UIM Selection/Rejection forms that required them to make
affirmative decisions regarding UM/UIM coverage and contained the
cautionary and explanatory language set forth in footnote 6 of this decision.
Polak acknowledged she could understand all of the language contained in
those forms.
14 Because we affirm on this basis, we do not address the Houston
Agency’s other arguments in support of affirming summary judgment and
the denial of Hague’s motion for a new trial.
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The applicable State Farm insurance policy states that an insured is entitled
to recover as UIM benefits damages that the insured is “legally entitled to
collect” from “the owner or driver of the uninsured motor vehicle or
underinsured motor vehicle.” (Emphasis omitted.) In order to be legally
entitled to collect, “the insured must be able to establish fault on the part of
the uninsured motorist.” Voland v. Farmers Ins. Co. of Ariz., 189 Ariz. 448,
451, 943 P.2d 808, 811 (App. 1997) (citation omitted); accord Transnat’l Ins.
Co. v. Simmons, 19 Ariz. App. 354, 356-57, 507 P.2d 693, 695-96 (1973) (“The
words ‘legally entitled to recover’ simply mean that the insured must be
able to establish fault on the part of the uninsured [or underinsured]
motorist which gives rise to damages and must prove the extent of those
damages.”). Thus, for Hague to establish her entitlement to recover UIM
insurance, she was required to prove fault on the part of the van driver
involved in the April 2008 collision.
¶28 Before trial, Stevens made clear that fault was a disputed issue
Hague was required to prove. In the parties’ joint pretrial statement,
Stevens asserted the issue of fault on the part of the van driver involved in
the fatal collision with Christopher was contested.15
¶29 At trial, in response to her counsel’s query as to how
Christopher had passed away, Hague, who did not witness the accident,
testified without objection, “I guess he was driving down Scottsdale Road
and the gentleman turned and he hit into him.”16 Hague also responded
affirmatively when next asked the compound question, “Did you bring a
claim against this other driver that turned –- what happened was the
gentlemen [sic] driver turned left in front of him?” Hague presented no
other evidence of the details of the accident, although she testified she had
collected $100,000 each from the van driver’s insurance company and from
State Farm through her UIM insurance coverage. When Hague’s counsel
asked, “[a]nd did they tell you how much fault they put on the other
15 Stevens maintained Christopher “was the only motorist at fault or
was the principal motorist at fault for the collision that resulted in his
death,” and that due to Christopher’s “sole or nearly total fault for causing
the accident that resulted in his death,” Hague had been fully compensated
by the amounts previously paid through insurance.
16 Similarly, Stevens acknowledged during his testimony that he had
been made “aware” the case involved an accident between Christopher and
the driver of a van, in which “Mr. Hague struck the van as it was making a
left turn” at an intersection.
14
HAGUE v. BILL HOUSTON et al.
Decision of the Court
driver,” counsel for Stevens objected on hearsay and foundation grounds,
and the trial court sustained the objection. Hague did not otherwise seek
to admit the Scottsdale Police Department’s traffic accident report or any
other documents addressing the issue of fault, and she did not present
testimony from any police officers, accident reconstructionists, or witnesses
present at the accident.
¶30 After Hague rested at the close of her case-in-chief, Stevens
moved for a directed verdict (judgment as a matter of law), arguing (1)
A.R.S. § 20-259.01(A) and (B) established the statutory duties applicable to
Stevens, and Stevens had met the applicable standard of care by providing
Hague and Polak a written offer of UM/UIM coverage limits equal to the
liability coverage limits on the Yamaha, and (2) in any event, Hague had
not met her burden of showing she had been damaged by any breach on
the part of Stevens because she had failed to provide evidence the driver of
the van was at fault for the April 2008 accident; thus, Hague could not show
she would have been eligible to recover more than the $100,000 UIM
coverage limits she had already received from her State Farm policy.
¶31 Counsel for Hague argued that the fact the insurance
companies had paid under their policies should be sufficient to find fault
on the part of the van driver, but the trial court noted that insurance
companies may pay a claim for “cost of defense kind of reasons that don’t
involve an actual decision and an actual investigation into a determination
of fault,” and stated, “I don’t know if they did [an investigation or found
fault] or not because there was no evidence presented to me on that.”
Counsel for Hague then argued that both Hague and Stevens had referred
to “a person who turned left at an intersection in front of Mr. –- we know
the facts of the accident.” The court replied, however, that Hague had failed
to “put on any evidence of the facts of the accident” except “hearsay
testimony about he said someone turned left, but that is -– that is not
enough to establish fault.”
¶32 Counsel for Hague moved to reopen her case, but counsel for
Stevens objected, arguing “we supplemented our disclosure to be very clear
that we contested liability here,” and noting the pretrial statement had been
“correct[ed]” by redacting mention of the van’s driver as being “at fault.”
Counsel for Hague argued that “the issue isn’t how much [the van driver]
was at fault” but “whether underinsured coverage was triggered,” but the
trial court rejected the argument and denied serial motions to reopen the
case:
15
HAGUE v. BILL HOUSTON et al.
Decision of the Court
Well, [counsel], I’m sorry that you didn’t see this. I
have to say these questions have been occurring to me all last
week after we had the pretrial conference. I was frankly
wondering how you were going to prove your case. And [] I
was having an open mind to whatever it is that you decided
to present.
But you’ve rested. I mean, you’ve built your entire
case on the theory that you’ve gone forward with and you’ve
rested.
And –
....
[Counsel], I’m sorry, but I have heard enough. And
there is – the plaintiff has not provided evidence of frankly
it’s causation evidence that Ms. Hague was caused damage
because of any decision – well, actually it goes back to the
motorcycle accident. There is no proof of [fault related to]
that.
The trial court then granted Stevens’ directed verdict motion.
¶33 After entering judgment in favor of Defendants, however, the
trial court granted Hague’s motion for a new trial as to Stevens, reasoning
as follows:
The Court considered the parties’ papers related to the
instant motion, and reviewed the arguments of counsel
related to Defendant’s motion for a directed verdict. Upon
reflection, the Court finds that reasonable jurors could find
that Plaintiff’s uncontradicted testimony – her “yes” answer
to counsel’s question that included “what happened was the
gentleman driver turned left in front of him?” – was sufficient
to establish some degree of fault on the part of the
underinsured driver. For that reason, it was error for the
Court to enter judgment as a matter of law in favor of
Defendant, and a new trial is warranted.
On September 3, 2013, the trial court issued a signed minute entry entering
judgment in favor of the Houston Agency and granting Hague a new trial
as to Stevens.
16
HAGUE v. BILL HOUSTON et al.
Decision of the Court
¶34 Stevens argues the trial court erred in reversing its directed
verdict ruling and granting a new trial as to Stevens because Hague failed
to introduce substantial evidence from which the jury could determine that
the van driver involved in the April 2008 collision with Christopher was
legally at fault. We agree.
¶35 Even assuming the ambiguous testimony provided was true,
see Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 543, 789 P.2d 1040,
1044 (1990),17 it goes no further than to state at most that, as Christopher
was proceeding down Scottsdale Road, he was involved in a collision with
a driver executing a left turn in front of him. No testimony was provided
regarding such relevant facts as the direction of either motorist, each
motorist’s speed, or whether either driver had the right-of-way.18 Although
we are aware that, in some instances, these and other potentially pertinent
facts might not be ascertained, the jury must at least be presented with a
“sufficient evidentiary basis for a reasonable jury to find for [a] party on
[an] issue.” Ariz. R. Civ. P. 50(a). Hague’s testimony was itself admittedly
speculative, and to find fault on the part of the van driver based on the
testimony presented, the jury would have to do more than draw inferences
– it would have to speculate as to the material facts.19 Speculation is
insufficient to prove the necessary elements of Hague’s claim. See, e.g.,
Badia v. City of Casa Grande, 195 Ariz. 349, 357, ¶ 29, 988 P.2d 134, 142 (App.
1999). In this case, fault was clearly a contested issue Hague was required
to prove, and the testimony presented failed to set forth any substantial
evidence about the accident from which a reasonable jury could evaluate
and determine whether the van driver violated any traffic laws or otherwise
17 We agree with Hague that a directed verdict is improper when a
court must weigh the credibility of witnesses to determine the material facts
presented. See Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287,
¶ 12, 9 P.3d 314, 318 (2000). Here, however, no assessment of witnesses’
credibility is necessary to address the accident testimony.
18 As previously noted, the traffic accident report was not offered or
admitted in evidence at trial. See supra note 7.
19 For example, from the sparse testimony and lack of other evidence
regarding fault admitted at trial, the jury would have had to speculate
whether Christopher and the van driver were travelling in opposite
directions before the collision occurred, or whether Christopher was
following the van driver who was turning left in front of him. See generally
A.R.S. §§ 28-730(A) (2012), -772 (2012).
17
HAGUE v. BILL HOUSTON et al.
Decision of the Court
acted negligently, much less was at fault for the accident.20 See Goodman,
229 Ariz. at 28, ¶ 6, 270 P.3d at 855.
¶36 Because Hague failed to establish legal entitlement to
UM/UIM benefits with admissible evidence of fault on the part of the van
driver, the trial court abused its discretion in reversing its directed verdict
ruling and granting a new trial as to Stevens. Accordingly, we reverse the
court’s order granting Hague’s motion for a new trial.21
20 We also reject Hague’s argument that the payment of liability and
UIM benefits under the insurance companies’ policies constitutes evidence
of fault on the part of the van driver in this case. As the trial court
recognized, insurance companies may pay or settle claims for a variety of
reasons, even when their insureds are not at fault. See Brown v. Progressive
Ins. Co., 860 A.2d 493, 508, ¶ 54 (Pa. Super. Ct. 2004) (“Progressive
ultimately settled a [UIM] claim for $25,000.00 that it reasonably believed
to be worth nothing. Cases may settle for any number of reasons, including
reasons which are unrelated to the true value of the claim.”). Here, the van
driver’s insurance company paid without acknowledging fault on the part
of its insured, and we disagree with the suggestion of Hague’s counsel that
Stevens’ testimony explaining the types of insurance could be construed to
indicate a concession of fault on the part of the van driver. Moreover, even
were we to assume arguendo that a determination of fault could be inferred
from Stevens’ testimony, the testimony provides no facts from which a jury
could evaluate and determine the relative degrees of fault of the two
drivers, and Hague’s testimony does nothing to address this
deficiency. The testimony presented simply fails to provide facts sufficient
to present a jury issue on fault.
21 Because we reverse on this basis, we do not address Stevens’
additional arguments, including Stevens’ challenge to the trial court’s
denial of Stevens’ motion in limine to preclude the testimony of Hague’s
expert, Berry.
18
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Decision of the Court
CONCLUSION
¶37 For the foregoing reasons, we affirm summary judgment in
favor of the Houston Agency and the trial court’s denial of Hague’s motion
for a new trial as to the Houston Agency, reverse the court’s order granting
Hague’s motion for a new trial as to Stevens, and remand with directions
to enter judgment in favor of Defendants. Defendants are awarded their
taxable costs on appeal contingent upon compliance with Rule 21, ARCAP.
:ama
19