Murray v. Farmers Insurance Company of Arizona ....

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
JESSYKA MURRAY, AN INCAPACITATED PERSON, THROUGH HER
GUARDIANS AND PARENTS, ROBERT MURRAY AND MARCIA MURRAY,
FORMERLY HUSBAND AND WIFE; AND ROBERT MURRAY AND MARCIA
MURRAY, FORMERLY HUSBAND AND WIFE,
Plaintiffs/Appellants/Cross-Appellees,
v.
FARMERS INSURANCE COMPANY OF ARIZONA; FOREMOST INSURANCE
COMPANY GRAND RAPIDS, MICHIGAN; RANDY JONES INSURANCE
AGENCY, INC., AN ARIZONA CORPORATION; AND RANDY JONES AND
DEANNA JONES, HUSBAND AND WIFE,
Defendants/Appellees/Cross-Appellants.
No. 2 CA-CV 2014-0123
Filed January 19, 2016
Appeal from the Superior Court in Pima County
No. CV20124962
The Honorable Carmine Cornelio, Judge
AFFIRMED IN PART; REVERSED IN PART
COUNSEL
Haralson, Miller, Pitt, Feldman & McAnally, P.L.C., Tucson
By Stanley G. Feldman and Thomas G. Cotter
Counsel for Plaintiffs/Appellants/Cross-Appellees
MURRAY v. FARMERS INS. CO.
Opinion of the Court
Lewis Brisbois Bisgaard & Smith, LLP, Phoenix
By Carl Mariano and Michael P. Obert, Jr.
Counsel for Defendants/Appellees/Cross-Appellants
and
Jeffry A. Miller, San Diego, California
Pro Hac Vice
OPINION
Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Miller and Chief Judge Eckerstrom concurred.
E S P I N O S A, Judge:
¶1 In this insurance agent malpractice action, appellants
Jessyka Murray and her parents Robert and Marcia Murray (the
Murrays) seek the reversal of the trial court’s order granting a new
trial on all issues and the remand of the matter for a new trial on
damages only. They also petition this court to reverse certain partial
summary judgments entered by the court and its ruling on their
motion made pursuant to Rule 49(c), Ariz. R. Civ. P. The Murrays
lastly request reversal of the trial court’s interpretation of their
umbrella policy. Appellees Randy Jones, the Randy Jones Insurance
Agency, Farmers Insurance Company of Arizona (Farmers) and
Foremost Insurance Company (Foremost) cross-appeal, contending
Jones’s compliance with the requirements of Arizona’s
Uninsured/Underinsured Motorist Act precludes the Murrays’
claims. For the following reasons, we affirm in part and reverse in
part.
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MURRAY v. FARMERS INS. CO.
Opinion of the Court
Factual and Procedural Background
¶2 “We view the facts in the light most favorable to
upholding the trial court’s ruling.” Hammoudeh v. Jada, 222 Ariz. 570,
¶ 2, 218 P.3d 1027, 1028 (App. 2009). Jones and the Randy Jones
Insurance Agency were authorized by Farmers to offer and sell
insurance coverage to Jones’s clients through Farmers. For twenty
years, Robert and Marcia 1 purchased their automobile and
homeowners insurance from Jones. Before he became their agent,
the Murrays had purchased only minimum liability limits and
matching minimum uninsured motorist (UM) and underinsured
motorist (UIM) coverage. With Jones as their agent, over the years
the Murrays added a one-million-dollar personal umbrella,
increased each auto policy’s liability limits to 250/500K and added a
Foremost insurance policy for their off-road vehicle with liability
limits of 250/500K.2 Jones, however, did not recommend that they
increase their UM/UIM coverage above the minimum limits of
30/60K for their auto policy or 25/50K for their off-road vehicle, or
that they buy UM/UIM in limits corresponding to their liability
coverage.
¶3 Robert and Marcia testified that when they discussed
UM/UIM coverage with Jones, he advised them they did not need
increased UM/UIM limits because their family had health insurance
through Robert’s employer. Jones, however, denied telling the
Murrays “that if they had health insurance they d[id]n’t need to buy
any UM/UIM or as much UM/UIM insurance.”
¶4 In November 2010, Jessyka, then seventeen, was a
passenger in a two-vehicle accident that involved both an uninsured
1For
clarity and convenience, we will use the Murrays’ first
names when referring to them individually.
2 Auto policy limits are expressed as two numbers, e.g.,
250/500K. The first number is the maximum amount the policy’s
coverage will pay per person in an accident and the second number
is the maximum the policy will pay per accident.
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MURRAY v. FARMERS INS. CO.
Opinion of the Court
motorist and an underinsured motorist. She sustained a traumatic
brain injury that permanently incapacitated her, and Robert and
Marcia were appointed her guardians.
¶5 In August 2012, Robert and Marcia, individually, and as
guardians of Jessyka, filed a complaint against Jones, the Randy
Jones Insurance Agency, Farmers, and Foremost alleging
professional negligence, consumer fraud under A.R.S. § 44-1522 and
insurance fraud under A.R.S. § 20-443. Farmers and Foremost were
included as defendants based on vicarious liability for Jones.3
¶6 In July 2013, Jones moved for summary judgment on all
claims, pointing out that the Murrays had signed UM/UIM
Selection Forms for each of their policies and arguing their selection
was “valid for all insureds” under A.R.S. § 20-259.01. The trial court
denied Jones’s motion, finding that his compliance with the statute
did not insulate him from liability.
¶7 After a four-day trial, the jury returned a seven to one
verdict of $180,000 in favor of the Murrays. Before the jury was
discharged, the Murrays orally moved to have the jury deliberate
further on grounds the verdict was non-responsive to the submitted
issues, citing Rule 49(c), Ariz. R. Civ. P. After briefing and
argument, the trial court concluded that Rule 49(c) did not apply,
accepted the verdict and discharged the jury.
¶8 The Murrays later filed a motion for additur or new trial
on damages that the trial court denied. It ultimately, however,
vacated the judgment and ordered a new trial on all issues. The
Murrays appealed and Jones cross-appealed from the denial of his
motion for summary judgment. This court has jurisdiction pursuant
to A.R.S. §§ 12-120.21(A) and 12-2101(A)(1), (5)(a).
3Forconvenience, we will refer to appellees Jones, the Randy
Jones Insurance Agency, Farmers and Foremost collectively as
“Jones.”
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MURRAY v. FARMERS INS. CO.
Opinion of the Court
Rule 49(c), Ariz. R. Civ. P.
¶9 The Murrays first argue the trial court abused its
discretion by denying their motion filed pursuant to Rule 49(c).
That rule provides that if a “verdict is not responsive to the issue
submitted to the jury, the court shall call the jurors’ attention
thereto, and send them back for further deliberation.” We review
the application of court rules de novo. Haroutunian, 218 Ariz. 541,
¶ 22, 189 P.3d at 1122.
¶10 A party who believes a jury verdict is inconsistent,
defective, or nonresponsive, must move, before the jury is excused,
for resubmission of the case to the jury pursuant to Rule 49(c).
See Trustmark Ins. Co. v. Bank One, Ariz., NA, 202 Ariz. 535, ¶ 39, 48
P.3d 485, 493 (App. 2002). An objection based on Rule 49(c)
provides an opportunity to correct error with “minimal effort and
expense.” Id. ¶ 40. A court will resubmit a case to the jury where its
verdict is clearly inconsistent, defective, or nonresponsive. See, e.g.,
Gray v. Gardiner, 92 Ariz. 208, 210, 375 P.2d 562, 563 (1962) (“patent
inconsistency” where “impossible” to find issues in favor of either
plaintiffs or defendant and not make award in some amount);
Fornara v. Wolpe, 26 Ariz. 383, 389-91, 226 P. 203, 204-05 (1924)
(defective verdict where recovery amount less than instructed); Piper
v. Bear Med. Sys., Inc., 180 Ariz. 170, 179, 883 P.2d 407, 416 (App.
1993) (verdict awarding punitive damages but zero compensatory
damages rendered it unresponsive), superseded by statute, Uniform
Contribution Among Tortfeasors Act, 1984 Ariz. Sess. Laws, ch. 237,
as recognized in Watts v. Medicis Pharm. Corp., 236 Ariz. 511, ¶¶ 31, 38,
41, 342 P.3d 847, 854-56 (App. 2015); Farmers Ins. Co. v. Tallsalt, 191
Ariz. 177, 180, 953 P.2d 921, 924 (App. 1997) (verdict nonresponsive
where counterclaim not addressed), vacated in part on other grounds,
192 Ariz. 129, 962 P.2d 203 (1998); cf. Walsh v. Advanced Cardiac
Specialists Chartered, 229 Ariz. 193, ¶ 14, n.1, 273 P.3d 645, 649, 650
n.1 (2012) (verdict neither defective nor unresponsive where award
of zero damages was not impermissible as matter of law).
¶11 Here, the trial court had instructed the jury that if it
found Jones was at fault, it “must then determine how much
additional UM/UIM coverage the Murrays would have purchased
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MURRAY v. FARMERS INS. CO.
Opinion of the Court
up to $1,890,000.”4 Evidence at trial showed that the Murrays had
the option of purchasing UM/UIM coverage in limits of 50/100K,
100/300K or 250/500K. The jury’s verdict of $180,000, however, did
not reflect any option available to the Murrays and, as they assert
and Farmers does not contest, the verdict “cannot be mathematically
reconciled with any UM/UIM limit that [they] could have bought
under the undisputed evidence.”
¶12 After the Murrays requested that the jury deliberate
further pursuant to Rule 49(c), the trial court noted that the parties
had agreed to “le[ave] the verdict form open” as to the amount of
additional UM/UIM coverage that might have been purchased. It
posed the question of how it would instruct the jury post-verdict,
noting the difficulty of resubmitting the instruction without telling
the jury, in essence, “pay attention to the evidence and redecide the
case.”5 The court concluded that a verdict could be “flawed” but
4 Thisis the maximum amount of UM/UIM benefits the
Murrays could have purchased under their Farmers’ policies:
UM Claimed UIM Claimed Total Claimed
Farmers $250,000 $250,000 $500,000
Foremost $250,000 $250,000 $500,000
Farmers $1,000,000 combined $1,000,000
Umbrella
Total Claimed $2,000,000
Total Received ($110,000)
Potential 1,890,000
Damages
5 The Murrays requested the court reinstruct the jury by
directing them to find for the defendants or for the Murrays “in the
amount of [$]890[,000] or [$]1,890,000,” amounts that would
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Opinion of the Court
responsive, and was in this case. It further noted that it “c[ould]n’t
imagine . . . an instruction that wouldn’t, to some degree or another,
comment on the evidence and direct [the jury’s] decision.” Finally,
it agreed with Jones that Rule 49(c) involved “more of a . . . failure to
follow the legal issues in the case than the evidentiary decision
making.”
¶13 The jury’s verdict was within the instructed range, the
error was not one of law, and we agree with the trial court’s
assessment that any attempt to direct the jury to correct its verdict to
conform to the available policy limits would have constituted a
comment on the evidence. We therefore cannot say the court erred
by refusing to require the jury to further deliberate pursuant to
Rule 49(c). See Walsh, 229 Ariz. 193, ¶ 14, n.1, 273 P.3d at 649, 650
n.1; see also Ariz. Const. art. VI, § 27 (“Judges shall not charge juries
with respect to matters of fact, nor comment thereon, but shall
declare the law.”).
Order for New Trial on All Issues
¶14 The Murrays next contend the trial court abused its
discretion when, after denying their motion for a new trial on
damages, it ordered a new trial on all issues, rather than only
damages. The court ordered the new trial after finding:
(1) The jury’s verdict is likely a result of
sympathy, and/or prejudice, and/or a
compromised verdict between liability and
damages.
(2) The damages number was not
supported by reasonable evidence that was
submitted.
correspond to the evidence and argument presented at trial. Jones
responded that if the court told the jury “you have to go back and
reach a verdict that’s based on one of these numbers, it’s purely a
comment on the evidence.”
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MURRAY v. FARMERS INS. CO.
Opinion of the Court
(3) This Court does not believe that
granting a new trial, simply on the
damages with liability already established,
will present the next jury with a case in
which the issues can be fully understood,
because they are, in this Court’s opinion,
inextricably interwoven.
¶15 “The trial court’s right to order a new trial . . . is
completely discretionary.” Martinez v. Schneider Enters., Inc., 178
Ariz. 346, 349, 873 P.2d 684, 687 (App. 1994). The decision to grant a
new trial on all issues is likewise discretionary and routinely upheld.
See Englert v. Carondelet Health Network, 199 Ariz. 21, ¶ 18, 13 P.3d
763, 770 (App. 2000) (noting absence of Arizona cases holding trial
court had abused discretion by ordering new trial on all issues).
“We review an order granting a new trial under a more liberal
standard than an order denying one, and we will not overturn the
order absent a clear abuse of discretion.” State Farm Fire & Cas. Co. v.
Brown, 183 Ariz. 518, 521, 905 P.2d 527, 530 (App. 1995); see also
Englert, 199 Ariz. 21, ¶ 14, 13 P.3d at 769 (abuse of discretion is
“‘discretion manifestly unreasonable, or exercised on untenable
grounds, or for untenable reasons’”), quoting Torres v. N. Am. Van
Lines, Inc., 135 Ariz. 35, 40, 658 P.2d 835, 840 (App. 1982).
¶16 The Murrays do not contest the trial court’s grant of a
new trial, but contend it should be limited to damages only.
Pursuant to Rule 59(h), Ariz. R. Civ. P.:
A new trial, if granted, shall be only a new
trial of the question or questions with
respect to which the verdict or decision is
found erroneous, if separable. If a new trial
is ordered because the damages are
excessive or inadequate and granted solely
for that reason, the verdict shall be set aside
only in respect of the damages, and shall
stand in all other respects.
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MURRAY v. FARMERS INS. CO.
Opinion of the Court
But, “[p]artial new trials are not recommended because they create
much opportunity for confusion and injustice.” Styles v. Ceranski,
185 Ariz. 448, 451, 916 P.2d 1164, 1167 (App. 1996). “A partial trial
should be granted when the issues are not inextricably intertwined
and can be separated without prejudice to the parties.” Englert, 199
Ariz. 21, ¶ 15, 13 P.3d at 769; see also Tovrea Equip. Co. v. Gobby, 72
Ariz. 38, 43, 230 P.2d 512, 516 (1951) (“‘It is only when the reason for
setting aside the verdict relates solely to damages disassociated from
every other contributing, related or vitiating cause that the new trial
shall be limited to the question of the amount of damages alone.’”),
quoting S. Pac. Co. v. Gastelum, 36 Ariz. 106, 126, 283 P. 719, 726
(1929). The court should resolve any doubt in favor of a new trial on
all issues. Styles, 185 Ariz. at 451, 916 P.2d at 1167.
Compromise Verdict
¶17 As its findings made clear, the trial court determined
the jury’s verdict on damages had been affected by the jury’s
findings on liability. The court found, first, that the verdict was a
compromise verdict, that is, a verdict in which “some of the jurors
have conceded liability against their judgment, and some have
reduced their estimate of the damages in order to secure an
agreement of liability with their fellow jurors[.]’” State v. Watson,
7 Ariz. App. 81, 88, 436 P.2d 175, 182 (1967), quoting Gastelum,
36 Ariz. at 125, 283 P. at 725. In such cases, a new trial confined to
the single issue of damages would be a serious injustice to the
defendant; “[h]e has never had the issue of liability determined by
the conscientious conviction of all of the jury [as] he is entitled to
have.” Gastelum, 36 Ariz. at 125, 283 P. at 725. Our supreme court
has held that where liability was “vigorously contested” and the
jury’s verdict was “so inadequate as to constitute error,” these facts
permit the inference that “certain jurors believed there was no
liability at all but consented to a smaller verdict than those jurors
convinced of liability desired to return, in order that a verdict might
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MURRAY v. FARMERS INS. CO.
Opinion of the Court
be reached[;] it follows that the issues of liability and the amount of
damages are not separable.” Id. at 124-25, 283 P. at 725. 6
¶18 Here, liability was contested and the verdict was
approximately ten percent of the amount of damages sought by the
Murrays, with no plausible rationale for the amount of the award.7
Cf. Saide v. Stanton, 135 Ariz. 76, 80, 659 P.2d 35, 39 (1983) (new trial
limited to damages where liability contested but verdict not
disproportionate to proven damages, and court unable to say verdict
represented compromise or result of passion and prejudice); Tovrea
Equip. Co., 72 Ariz. at 41-42, 230 P.2d at 514-15 (where verdict grossly
in excess of damages established by evidence, jury likely either
confused or motivated by prejudice and new trial must be on all
issues). On these facts, we are unable to say the trial court erred in
finding the jury rendered a compromise verdict. See Saide, 135 Ariz.
at 80, 659 P.2d at 39.
6At oral argument, the Murrays questioned the relevance of
Gastelum, pointing out it was decided before the Arizona Rules of
Civil Procedure were promulgated in 1956. We note however that in
Gastelum, our supreme court applied paragraph 597 of the 1913 Civil
Code, whose pertinent language is nearly identical to Rule 59(h),
quoted above. 36 Ariz. at 124-25, 283 P. at 725. We are therefore
unconvinced by the Murrays’ argument that Gastelum is outdated
and lacks relevance following the promulgation of Rule 59(h).
7The Murrays point out that Rule 59(h) provides “[i]f a new
trial is ordered because the damages are excessive or inadequate and
granted solely for that reason, the verdict shall be set aside only in
respect of the damages, and shall stand in all other respects.” As our
supreme court noted in Gastelum, however, this provision “does not
authorize the court in the exercise of its discretion to grant a new
trial of the issue of damages alone when it is clear that a retrial of
that issue disassociated from that of liability will not be fair to the
defendant.” 36 Ariz. at 125, 283 P. at 725.
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MURRAY v. FARMERS INS. CO.
Opinion of the Court
Verdict as a Result of Sympathy or Prejudice
¶19 The trial court alternatively found the verdict was a
result of sympathy or prejudice. When the Murrays disputed that
finding, the court stated:
I disagree with you. I don’t think your
liability testimony was particularly
strong. . . . The liability portion of the case
while I have already acknowledged made a
lot of common sense, from the “expert”
point of view, it was not a strong liability
case. . . . [The Murrays] are lovely people
who are committed to their daughter, who
have worked hard all their lives and didn’t
deserve to have this thing happen to them
and are about as most sympathetic a set of
plaintiffs as I have had in my courtroom in
my 14 years. Usually, a sympathetic
verdict is one that goes over the top and
gives too much money[,] . . . it can also be
one in which a reasonable jury could say
. . . you were fully informed, you signed off
on how many forms you signed off on, but
sympathy says we should give you
something.
The court concluded, “[s]o I am having a hard time explaining the
verdict. Everybody [i]s. So I will give everybody the opportunity to
go get a new verdict.”
¶20 On appeal, the Murrays dispute the trial court’s finding
that the verdict was the result of passion and prejudice. They note
that Jessyka was only allowed to be present at trial during voir dire
and that the court excluded her medical records and expenses,
pre-accident photographs, and evidence of her on-going therapy
requirements. They also point out the parties had stipulated that
Jessyka’s accident-related damages exceeded the maximum
UM/UIM coverage her parents could have purchased, two million
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Opinion of the Court
dollars,8 and they had presented evidence, though limited, showing
their health insurance was insufficient to meet Jessyka’s post-
accident needs. And yet, as they note, the jury awarded them only
$180,000.
¶21 The Murrays assert they “did nothing to evoke
sympathy” and insist the new trial should be limited to damages,
citing Saide, 135 Ariz. at 79, 659 P.2d at 38. There, our supreme court
ordered a new trial limited to the issue of damages, reasoning that
“the verdict was not disproportionate to the proven damages, and
we cannot say that the verdict represented a compromise or was the
result of passion or prejudice.” Id. at 80, 659 P.2d at 39. But the
Murrays have identified no factual parallel between the jury’s
verdict in Saide and the verdict here. And unlike in Saide, the trial
court specifically found the verdict was “likely the result of
sympathy, and/or prejudice,” stating that the Murrays did not
present a strong liability case “from the ‘expert’ point of view,” but
that they were “about [the] most sympathetic a set of plaintiffs as [it]
ha[s] had in [its] courtroom in [its] 14 years.”
¶22 As we have observed, the trial court is in the best
position to evaluate the effect of the evidence on the jury.
See Englert, 199 Ariz. 21, ¶ 18, 13 P.3d at 770; cf. Cal X-Tra v. W.V.S.V.
Holdings, L.L.C., 229 Ariz. 377, ¶ 92, 276 P.3d 11, 39 (App. 2012) (trial
judge has “unique opportunity to hear the testimony and argument,
observe its effect on the jury, and determine through his
observations that the trial had been unfairly compromised; in
contrast, we have only a cold record, which does not convey voice
emphasis or inflection, or allow us to observe the jury and its
reactions”). Given the trial court’s stated observations and the jury’s
inexplicable verdict, we are unable to rule out a verdict based on
sympathy. Consequently, we cannot say the court abused its
discretion by refusing to limit the new trial to the amount of
8 As
discussed later, the Murrays contend their maximum
UM/UIM benefit under their policies was actually three million
dollars.
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Opinion of the Court
damages.9 Cf. Gastelum, 36 Ariz. at 125-26, 283 P. at 725-26; see also
Styles, 185 Ariz. at 451, 916 P.2d at 1167; Englert, 199 Ariz. 21, ¶ 14, 13
P.3d at 770 (trial court abuses its discretion when “‘discretion
manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons’”), quoting Torres, 135 Ariz. at 40, 658 P.2d at 840.
¶23 The Murrays have cited as supplemental authority,
Tarron v. Bowen Mach. & Fabricating, Inc., 225 Ariz. 147, 235 P.3d 1030
(2010) and State v. Fischer, 238 Ariz. 309, 360 P.3d 105 (App. 2015), to
support their contention that the trial court erred by refusing to limit
the scope of the new trial to damages only. These cases, however,
do not change our analysis. In Tarron, our supreme court remanded
for a limited new trial, leaving the jury’s award of damages to the
plaintiff and certain fault allocations undisturbed. However, the
posture of that case does not resemble the one before us—the fault
allocations excluded from the new trial were not contested and, like
the jury’s award of damages, were unrelated to the issue to be
resolved at the new trial.
¶24 Fischer, in contrast, is a criminal case in which the state
appealed the trial court’s grant of the defendant’s motion for new
trial based on the weight of the evidence. 238 Ariz. 309, ¶¶ 1, 6, 360
P.3d at 107-08. This court pointed out “[a] judge may not set aside a
verdict ‘merely because, if he had acted as trier of fact, he would
have reached a different result,’ nor may he substitute his own
judgment for that of the jury” and concluded the trial court had
made factual findings not supported by the record and failed to
9 While we acknowledge the Murrays’ arguments regarding
judicial economy and fairness—in that they were not responsible for
necessitating the new trial—again, given the irrational verdict and
the trial court’s observations, we cannot simply assume, as the
Murrays suggest, that the verdict was the result of the jury’s
misunderstanding the evidence or miscalculating the award. As
noted above, any doubts as to whether prejudice would result from
a limited trial should be resolved in favor of a new trial on all the
issues. See Styles, 185 Ariz. at 451, 916 P.2d at 1167.
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consider all the evidence in reaching its conclusions. Id. ¶¶ 19, 29,
quoting Cano v. Neill, 12 Ariz. App. 562, 569, 473 P.2d 487, 493 (1970).
¶25 Neither Tarron nor Fisher address the situation here,
where the trial court made a supported finding that the jury’s
verdict intertwined issues of liability and damages and the court
consequently ordered a new trial on all issues. The court’s ruling
did not “exceed[ ] the bounds of reason” in any respect. Englert, 199
Ariz. 21, ¶ 14, 13 P.3d at 769 (we will affirm trial court’s decision if it
did not “‘exceed[] the bounds of reason by performing the
challenged act’”), quoting Toy v. Katz, 192 Ariz. 73, 83, 961 P.2d 1021,
1031 (App. 1997) (alteration in Englert).
Summary Judgment Rulings
¶26 Summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the moving party is
entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(a). We
review de novo a trial court’s grant of summary judgment and view
the evidence and all reasonable inferences therefrom in the light
most favorable to the party opposing the motion. Felipe v. Theme
Tech Corp., 235 Ariz. 520, ¶ 31, 334 P.3d 210, 218 (App. 2014).
Emotional Distress Damages Claim
¶27 The Murrays contend the trial court erred in granting
summary judgment on their claims for emotional distress damages.
They assert that “Jones’ conduct deprived [them] of UM/UIM
benefits that would have allowed them to meet many of Jessyka’s
post-accident needs,” including extending her hospitalization,
increasing her number of therapies, allowing the family residence to
be remodeled to better accommodate her needs, and providing her
with a device to allow her to communicate.
¶28 In its ruling, the trial court “acknowledge[d] the real
emotional distress of the plaintiffs in this case” but found “under
current Arizona case law, [Jones’s] negligence did not directly affect
or burden a personal right or interest of [the Murrays],” citing
Kaufman v. Langhofer, 223 Ariz. 249, 222 P.3d 272 (App. 2009). It
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Opinion of the Court
noted that the Kaufman court had reviewed Arizona case law on
emotional distress damages and that such damages were allowed
only where the tortious act directly harmed a plaintiff and burdened
a personal, as opposed to an economic interest. The trial court
further cited Reed v. Mitchell & Timbanard, P.C., 183 Ariz. 313, 903
P.2d 621 (App. 1995), for the proposition that “consequential
damages for emotional distress are not recoverable when the
plaintiff’s direct damages are pecuniary.” The trial court concluded:
Here, the direct damages from the
Defendant’s negligence is pecuniary (loss
of larger UM/UIM insurance coverage).
The case law is clear and this Court is
bound to follow and apply that law in the
ruling here.
Plaintiffs claim that as a consequence of the
loss of larger coverage, they have suffered
emotional distress. No doubt this is true.
It may also be true that the law is ‘evolving’
in the area of emotional damages.
However, the law in Arizona has not (yet)
evolved so as to allow emotional distress
damages as a consequence of pecuniary
damages.
A trial court is bound by established and
clear case law. While the facts of this case
may support further evolution (and less
restriction) on limits of emotional distress
damages, this Court must apply Reed and
Kaufman and Grant the Defendant’s Motion
for Partial Summary Judgment [on the
Murrays’] emotional distress damages.
¶29 As the trial court correctly observed, in Arizona, “a
party may recover damages for emotional distress arising out of the
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Opinion of the Court
tortious loss of property” where “the tortious act directly harmed
the plaintiff and affected or burdened a personal, as opposed to an
economic or other interest belonging to the plaintiff.” Kaufman, 223
Ariz. 249, ¶ 15, 222 P.3d at 276. Examples of personal damages are
the loss of liberty or damage to a family relationship. Reed, 183 Ariz.
at 318–19, 903 P.2d at 626–27. In applying this principle, we have
held that plaintiffs could seek emotional damages for the destruction
of their fertilized human eggs, see Jeter v. Mayo Clinic Ariz., 211 Ariz.
386, ¶¶ 73-75, 121 P.3d 1256, 1273 (App. 2005), and for suffering, as a
tenant, the annoyance and discomfort of living in inadequate
housing, see Thomas v. Goudreault, 163 Ariz. 159, 167, 786 P.2d 1010,
1018 (App. 1989).
¶30 In contrast, we have precluded the recovery of
emotional distress damages where the plaintiff’s interest was
determined to be “purely economic.” Reed, 183 Ariz. at 319, 903 P.2d
at 627. There, in a legal malpractice action, the plaintiff alleged her
attorneys had failed to adequately secure a promissory note given to
her by her former husband in connection with their divorce, which
put her financial security at risk and consequently caused her
emotional distress. Id. at 315-16, 903 P.2d at 623-24. We held that
“because the direct result of the alleged malpractice is purely
economic, the exception allowing recovery for emotional distress
when the interest affected is a personal one is not applicable.” Id. at
319, 903 P.2d at 627. Likewise, we held that a pet owner could not
recover emotional distress damages after the death of his pet due to
a veterinarian’s alleged malpractice because Arizona law classifies
animals as personal property and the veterinarian’s negligence “did
not directly harm [the plaintiff] in that it did not affect or burden a
personal right or interest belonging to him.” Kaufman, 223 Ariz. 249,
¶¶ 10, 17, 19, 222 P.3d at 275-76.
¶31 The Murrays contend that the negligent failure to sell
uninsured and underinsured coverage implicates the insured’s well-
being and is particularly likely to cause serious emotional harm.
Albeit in another context, our supreme court has recognized that an
insured’s relationship with an insurer is not a strictly financial one.
See Taylor v. State Farm Mut. Auto. Ins. Co., 185 Ariz. 174, 176, 913
16
MURRAY v. FARMERS INS. CO.
Opinion of the Court
P.2d 1092, 1094 (1996). The court noted, “[t]he insured receives
intangible benefits from the relationship, such as peace of mind.” Id.
And in Rawlings v. Apodaca, the court “recognize[d] that in buying
insurance an insured usually does not seek to realize a commercial
advantage but, instead, seeks protection and security from economic
catastrophe.” 151 Ariz. 149, 154, 726 P.2d 565, 570 (1986). The
insured, the court concluded, “seeks peace of mind from the fears
that accompany such exposure.” Id. We accept therefore for our
analysis that an insurer-insured relationship is not merely a financial
one but includes an expectation of security and protection before
and at the time of a catastrophe.
¶32 In their complaint, the Murrays stated they had “relied
on and trusted Jones in determining what insurance coverage to
obtain and what limits would provide them complete protection.”
Marcia Murray averred there were “many other examples where
Jessyka, [Robert] and I have suffered mental distress because Jessyka
did not have access to UM/UIM benefits that were equal to our auto
liability limits, and as a result she has not been able to secure needed
care, therapies and equipment.” And at trial, after being asked what
he had wanted when meeting with Jones about the Murrays’
insurance coverage prior to the accident, Robert Murray responded
that he had wanted coverage, noting: “I mean, I have a family that
you have to take care of. That’s my job. And so you want the best to
cover your family.” He also testified that after the accident he
“ha[d] to go to the community to try and raise funds to provide
some of the services that [he] couldn’t pay for because [he] didn’t
have UM and UIM coverage.”
¶33 As noted above, our review of the trial court’s ruling is
de novo and we view the evidence and all reasonable inferences in
the light most favorable to the Murrays. Felipe, 235 Ariz. 520, ¶ 31,
334 P.3d at 218. From the evidence provided and reasonable
inferences therefrom, a factfinder could conclude the Murrays
suffered direct emotional distress from Jones’s negligence that was
non-economic, that is, the loss of their reasonable expectations and
peace of mind that they and their children were insured against
economic catastrophe. We therefore conclude this is the appropriate
17
MURRAY v. FARMERS INS. CO.
Opinion of the Court
case for the “evolution” of the law contemplated by the trial court.
Accordingly, we reverse the court’s ruling and remand this issue for
further proceedings on the Murrays’ emotional distress damages
claims.
Fraud Claims under A.R.S. §§ 20-443, 20-443.01, and 44-1522
¶34 The Murrays next contend the trial court erred in
granting summary judgment on Jessyka’s claims under Arizona’s
Consumer Fraud Act (CFA), A.R.S. § 44-1522, and the insurance
fraud statute, A.R.S. §§ 20-443 and 443.01, because “as a resident of
the Murray household, Jessyka was both an insured and an express
third-party beneficiary of the Murrays’ motor vehicle and umbrella
insurance policies.”10 At a pretrial hearing, the trial court determined
that Jessyka lacked standing to bring a claim under the consumer
fraud statute, stating:
The Arizona statute requires that the act be
with the intent that others rely and that
there was, in fact, reliance. Whether it was
reasonable or not, it still requires reliance.
And Jessyka was not one who was made to,
[sic] nor the person who the reliance was
made on.
The court distinguished case law from other states cited by the
Murrays where third-party beneficiaries were found to have
standing to assert consumer fraud claims, noting differences
between Arizona’s consumer fraud statute and those of the other
states,11 and concluded that Jessyka could not bring her claim under
the statute.
10Beforetrial, the Murrays conceded the statute of limitation
had run on Robert and Marcia’s statutory fraud claims.
11As the parties do not argue there is any appreciable
difference between the insurance fraud statute and the consumer
18
MURRAY v. FARMERS INS. CO.
Opinion of the Court
¶35 Arizona’s Consumer Fraud Act (CFA) provides:
The act, use or employment by any
person of any deception, deceptive or
unfair act or practice, fraud, false pretense,
false promise, misrepresentation, or
concealment, suppression or omission of
any material fact with intent that others
rely on such concealment, suppression or
omission, in connection with the sale or
advertisement of any merchandise whether
or not any person has in fact been misled,
deceived or damaged thereby, is declared
to be an unlawful practice.
§ 44-1522(A). “The purpose of the [CFA] is to provide injured
consumers with a remedy to counteract the disproportionate
bargaining power often present in consumer transactions.” Waste
Mfg. & Leasing Corp. v. Hambicki, 183 Ariz. 84, 88, 900 P.2d 1220, 1224
(App. 1995). Our supreme court has recognized an implied private
cause of action under the act. See Sellinger v. Freeway Mobile Home
Sales, Inc., 110 Ariz. 573, 576, 521 P.2d 1119, 1122 (1974).
¶36 “It is well-settled that a person or entity need not intend
to deceive to violate the statute.” Powers v. Guar. RV, Inc., 229 Ariz.
555, ¶ 17, 278 P.3d 333, 338 (App. 2012). Nor does the statute require
that the defendant know that the misrepresentations are false. Id.
“To succeed on a claim of consumer fraud, a plaintiff must show a
false promise or misrepresentation made in connection with the sale
or advertisement of merchandise and consequent and proximate
injury resulting from the promise.” Kuehn v. Stanley, 208 Ariz. 124,
¶ 16, 91 P.3d 346, 351 (App. 2004).
fraud statute in the current context and rely solely on case law
involving the consumer fraud statute, we evaluate that statute
exclusively.
19
MURRAY v. FARMERS INS. CO.
Opinion of the Court
¶37 Jones asserts that “a viable consumer fraud claim
requires that the claimant be a party to the sale in which the
misrepresentation took place.” In support he cites Sullivan v. Pulte
Home Corp., 231 Ariz. 53, 290 P.3d 446 (App. 2012), which held that
subsequent homeowners did not have a viable private cause of
action under the CFA against the homebuilder “[b]ecause a
subsequent purchaser is not a party to the original transaction and
therefore would not encounter . . . ‘disproportionate bargaining
power.’” Id. ¶ 38 (noting plaintiff homeowners had no transaction
with homebuilder), vacated in part on other grounds, 232 Ariz. 344, 306
P.3d 1 (2013). Sullivan, however, did not involve a third-party
beneficiary of the transaction.
¶38 Because there is no published Arizona precedent
involving a claim under the CFA by a third-party beneficiary, we
examine the language of the statute. If the language is clear and
unambiguous, we apply it without resorting to other methods of
statutory interpretation. Haag v. Steinle, 227 Ariz. 212, ¶ 9, 255 P.3d
1016, 1018 (App. 2011). But if multiple plausible interpretations
exist, we then consider the statute’s context, language, subject matter
and historical background and its effects, consequences, and spirit
and purpose. Id.
¶39 We have noted that “[t]he terms of th[e] [CFA] are
obviously quite broad and are not subject to restrictive
interpretation because the Act is generally to be considered remedial
in nature.” People ex rel. Babbitt v. Green Acres Trust, 127 Ariz. 160,
164, 618 P.2d 1086, 1090 (App. 1980), superseded by statute on other
grounds, 1981 Ariz. Sess. Laws, ch. 295, § 5, as recognized in State
ex rel. Corbin v. Pickrell, 136 Ariz. 589, 667 P.2d 1304 (1983). We have
further observed that, although not limitless, the CFA’s definitions
are “expansive,” Hambicki, 183 Ariz. at 87, 900 P.2d at 1223, and that
the CFA, while applying to “consumers” through its title, provides
no definition of that term.12 See Flower World of Am., Inc. v. Wenzel,
12Although § 44-1522 does not use the term “consumer,” the
section is within article 7, titled “Consumer Fraud,” and the term
has previously been read into the section by this court. See Flower
20
MURRAY v. FARMERS INS. CO.
Opinion of the Court
122 Ariz. 319, 321, 594 P.2d 1015, 1017 (App. 1978); Sullivan, 231
Ariz. 53, ¶ 38, 290 P.3d at 454 (subsequent purchaser not within
“class of consumers” protected by implied private cause of action
under CFA); see also State v. Barnett, 142 Ariz. 592, 597, 691 P.2d 683,
688 (1984) (statutory title may aid in interpreting statute).
¶40 Although Jones would have us limit a private CFA
cause of action to the parties to the transaction involving the
misrepresentation, the broad language of the act would appear only
to require that a consumer have a relationship to the transaction.
See § 44–1522(A) (statute pertains to misrepresentations or deceptive
acts made “in connection with the sale or advertisement” of good or
service). The CFA requires that a misrepresentation or deceptive act
be made with intent that “others” rely on it, without specifying the
relationship of those “others” to the transaction. Id. Further, the
language “whether or not any person has in fact been misled,
deceived or damaged thereby,” suggests that third parties are not
excluded. Id.
¶41 The Murrays cite cases from Washington, the District of
Columbia Circuit, and Texas to support their argument that as a
third-party beneficiary Jessyka should be afforded standing under
Arizona’s CFA. See Escalante v. Sentry Ins. Co., 743 P.2d 832, 834,
839-40 (Wash. Ct. App. 1987) (vehicle passenger had standing under
Washington’s CFA because she was “an insured and a third party
beneficiary [of the driver’s UIM coverage] by virtue of the policy
coverage for passengers”); Athridge v. Aetna Cas. & Sur. Co., 351 F.3d
1166, 1176 (D.C. Cir. 2003) (child of insureds and “person potentially
insured by” policy is a consumer under act “even if he was not the
party who purchased the insurance”); Mendoza v. Am. Nat. Ins. Co.,
932 S.W.2d 605, 608-09 (Tex. App. 1996) (beneficiary of life insurance
policy has standing under consumer fraud act). Although Jones
points out that Washington’s consumer fraud act is more broadly
worded than Arizona’s, see Wash. Rev. Code § 19.86.010(2) (act
World of Am., Inc. v. Wenzel, 122 Ariz. 319, 321, 594 P.2d 1015, 1017
(App. 1978); Sullivan, 231 Ariz. 53, ¶ 38, 290 P.3d at 454; Hambicki,
183 Ariz. at 88, 900 P.2d at 1224.
21
MURRAY v. FARMERS INS. CO.
Opinion of the Court
applies to “the sale of assets and services, and any commerce
directly or indirectly affecting the people of the state of
Washington”), he differentiates the D.C. Circuit and Texas cases
because they expressly include as a “consumer” a recipient or
beneficiary of a good or service. See D.C. Code § 28-3901 (2013)
(defining “consumer” as person who “would purchase . . . or receive
consumer goods or services”); Bohls v. Oakes, 75 S.W.3d 473, 479
(Tex. App. 2002) (“A third party beneficiary may qualify as a
consumer of goods or services, as long as the transaction was
specifically required by or intended to benefit the third party and
the good or service was rendered to benefit the third party.”).
Because “consumers” are the named subject of the Act, and because
the plain meaning of that term accords with viewing a consumer as
a recipient of goods or services, see Merriam-Webster Online Dictionary,
2015, http://www.merriam-webster.com/dictionary/consumer (10 Dec.
2015), (“one that consumes” or that “utilizes economic goods”), we
do not disregard the precedent cited by the Murrays.
¶42 The Murrays further point out, pursuant to Ariz. R.
Sup. Ct. 111(c), (d), a recent unpublished decision by the Arizona
Federal District Court denying an insurance company’s motion to
dismiss a life insurance beneficiary’s CFA claim. In Moreno v. Minn.
Life Ins. Co., No. CV 14-2022-TUC-FRZ, 2015 WL 1457419, *6
(D. Ariz. Mar. 30, 2015), the court found that the plaintiff was
“specifically intended . . . to receive the benefit of the transaction.”
The court stated:
[n]o language in either the Consumer
Fraud Act or the Unfair Insurance Practices
Act suggest[s] that the beneficiary of a life
insurance policy would not also have a
cause of action in place of the insured
under similar circumstances. Nor is there
any “logical basis upon which to
distinguish [the beneficiary] from the
insured . . .” on the facts of this case.
Plaintiff also points out that at the time the
insurer is obligated to perform under a life
22
MURRAY v. FARMERS INS. CO.
Opinion of the Court
insurance policy, the insured has ceased to
exist and, therefore, consumer fraud
protection would be meaningless unless it
extended to the third-party beneficiary. . . .
In light of the broad remedial purposes of
the Consumer Fraud Act, Plaintiff’s
argument is well taken in context of a life
insurance policy. Significantly, both the
insured and insurer specifically intended
Plaintiff to receive the benefit of the
transaction.
Id. at 7 (citations omitted), quoting Gould v. Mutual Life Ins. Co. of
N.Y., 683 P.2d 207, 208 (App. 1984) (first alteration added, second
alteration in Moreno). Although the decision is neither published
nor an appellate opinion, it is well-reasoned under its facts and has
persuasive value. See Ariz. R. Sup. Ct. 111(c), (d).
¶43 In view of the broad language and remedial purpose of
the CFA, Jessyka’s status as a third-party beneficiary to the
transaction, and the persuasive reasoning of other courts that have
addressed this or similar issues, we conclude she has standing to
bring a claim under the statute. See Athridge, 351 F.3d at 1176 (third-
party beneficiary could properly bring CFA claim). We therefore
reverse the trial court’s grant of summary judgment and remand this
issue for further proceedings.
Interpretation of Umbrella Policy
¶44 The Murrays next argue the trial court erred when it
ruled that their $1,000,000 umbrella policy13 would have provided
13 Umbrella coverage “‘applies when the same insured has
purchased underlying coverage for the same risk” and “provides,
for a modest premium, coverage against catastrophic losses that
exceed the limits of the underlying coverage.’” Johnson v. Cont’l Ins.
Co., 198 Ariz. 160, ¶ 13, 7 P.3d 966, 968 (App. 2000) (emphasis
omitted), quoting St. Paul Fire & Marine Ins. Co. v. Gilmore, 168 Ariz.
159, 162, 812 P.2d 977, 980 (1991). Benefits under the policy are paid
23
MURRAY v. FARMERS INS. CO.
Opinion of the Court
$1,000,000 of combined UM/UIM coverage rather than $2,000,000
($1,000,000 for each type of coverage), but for Jones’s negligence.
They point out that § 20-259.01(H) provides: “Uninsured and
underinsured motorist coverages are separate and distinct and
apply to different accident situations,” and argue that the court’s
ruling that the “umbrella policy contained a combined $1,000,000 of
UM and UIM coverage completely undercuts A.R.S. § 20-259.01(H).”
¶45 Jones responds that the $1,000,000 maximum combined
UM/UIM benefit was clearly stated in the policy endorsement and
lawful under the statute. He notes that had the Murrays purchased
UM/UIM coverage on their umbrella policy, the terms would have
been stated in policy endorsement Form E011 3d. ed., 14 which
provides in relevant part:
For the additional premium paid, it is
agreed that this policy will provide
Uninsured and/or Underinsured Motorist
Coverage(s) payable to you and any other
insured under this policy, to the extent that
either or both coverages are a part of the
underlying insurance.
The limit of liability for Uninsured/Underinsured
Motorist Coverage is equal to the coverage
limits shown in the Limits of Liability
section of the policy Declarations Page.
The Uninsured/Underinsured Motorist
Coverage limit applicable in the event of an
occurrence is not increased regardless of
the number of covered autos, insureds,
claims made or vehicles involved in the
accident.
only after the primary coverage limits of the same insured have been
exhausted. Id.
14As stipulated by the parties in their joint pretrial statement.
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MURRAY v. FARMERS INS. CO.
Opinion of the Court
Jones maintains that under the endorsement, “the Murrays would
have been limited to a single limit of $1,000,000, ‘regardless of the
number of autos . . . claims made or vehicles involved in the
accident’” and consequently “[t]he policy limits are the same
regardless of the number of claims made or the vehicles involved.”
This court reviews the interpretation of statutes and contracts de
novo. See Grosvenor Holdings, L.C. v. Figueroa, 222 Ariz. 588, ¶¶ 9, 11,
218 P.3d 1045, 1050-51 (App. 2009).
¶46 Pursuant to § 20-259.01, when an insured purchases a
primary automobile policy, the insurer must offer both UM and
UIM motorist coverage in limits “not less than the liability limits for
bodily injury,” and the coverages “are separate and distinct and
apply to different accident situations.” As the Murrays note, courts
have invalidated limit-of-liability provisions designed to reduce or
eliminate UM/UIM coverage by setoffs or reductions when the
insured has not been fully compensated.15 The Murrays argue that
the same standards apply to umbrella policies.
¶47 Our supreme court “h[as] long held that exceptions to
coverage not permitted by the [UMA] are void.” Taylor v. Travelers
Indem. Co. of Am., 198 Ariz. 310, 315, 9 P.3d 1049, 1054 (2000). The
statute, however, expressly exempts insurers from offering UM or
UIM coverage under an umbrella policy. See § 20-259.01(L).
Subsection L specifies: “An insurer is not required to offer, provide
or make available coverage conforming to this section [UM and UIM
coverage] in connection with any . . . umbrella policy . . . .”
Umbrella policies therefore are expressly excluded from the
requirements of § 20-259.01 and the Murrays have not provided any
authority indicating that principles derived from primary auto
15See Cundiff v. State Farm Mut. Auto. Ins. Co., 217 Ariz. 358,
¶¶ 11, 15-16, 174 P.3d 270, 273-74 (2008); Taylor v. Travelers Indem. Co.
of Am., 198 Ariz. 310, ¶ 16, 9 P.3d 1049, 316 (2000); Spain v. Valley
Forge Ins. Co., 152 Ariz. 189, 193-94, 731 P.2d 84, 88-89 (1986); Calvert
v. Farmers Ins. Co. of Ariz., 144 Ariz. 291, 297, 697 P.2d 684, 690 (1985).
25
MURRAY v. FARMERS INS. CO.
Opinion of the Court
policy cases regarding UM/UIM setoffs or reductions apply equally
to umbrella policies.
¶48 In their opening brief, the Murrays make a passing
assertion that, even if permitted by statute, the umbrella policy
endorsement did not include “an unambiguous offset provision,”
“expressly reducing the limits of one coverage by the amount paid
under the second coverage.” Only in their reply brief do they
develop that argument, and at oral argument raised an additional
one selectively focusing on wording in the endorsement that the
umbrella policy would provide UM “and/or ”UIM “coverage(s).”16
They contend that “[v]iewing UM and UIM as separate coverages,”
the language of the endorsement providing “coverage limits are not
increased ‘regardless of the number of covered autos, insureds,
claims made or vehicles involved’” is to “prevent duplication of a
single coverage.” This interpretation, however, is not readily
supported by the plain language of the endorsement and context in
which the selected words appear, see Emp’rs Mut. Cas. Co. v. DGG &
CAR, Inc., 218 Ariz. 262, ¶ 24, 183 P.3d 513, 518 (2008) (where
contract provisions plain and unambiguous, they must be applied as
written, and court will not expand language “or add something to
the contract which the parties have not put there”). Nor is such an
interpretation required by the statute, because, as noted above,
Arizona insurers are not required to provide any UM or UIM
coverage as part of an umbrella policy.
¶49 The Murrays further assert that, as insureds, they could
collect the limits of separate UM/UIM coverages “[a]bsent a valid
limiting provision,” and contend that “Farmers’ endorsement does
not limit collection of the entire limits of different coverages.” But
they do not cite any authority requiring or inferring such a result
and the cases they cite for an insured’s recovery “under both
16We generally do not address arguments made for the first
time in a reply brief or at oral argument but, in our discretion, do so
here. See, e.g., State v. Shipman, 208 Ariz. 474, n.2, 94 P.3d 1169, 1171
n.2 (App. 2004); Mitchell v. Gamble, 207 Ariz. 364, ¶ 16, 86 P.3d 944,
949 (App. 2004).
26
MURRAY v. FARMERS INS. CO.
Opinion of the Court
coverages” do not involve umbrella policies. See Am. Family Mut.
Ins. Co. v. Sharp, 229 Ariz. 487, ¶ 17, 277 P.3d 192, 197 (2012); GEICO
Gen. Ins. Co. v. Tucker, 71 F. Supp. 3d 985, 988 (D. Ariz. 2014). In
view of the plain language of the umbrella policy endorsement and
the dearth of support for the Murrays’ position, we conclude the
trial court correctly ruled that had the Murrays purchased UM/UIM
coverage under their umbrella policy, they would have been limited
to a combined total of $1,000,000 for both UM and UIM.
Cross-Appeal
¶50 Jones argues on cross-appeal that the trial court erred
by denying him summary judgment on all claims, based on his
compliance with Arizona’s UM/UIM Act, § 20–259.01. In his
summary judgment motion, Jones pointed out that the Murrays had
repeatedly declined to increase their UM/UIM limits to match their
liability limits and did so on forms approved by the DOI, as required
by § 20-259.01. He noted that the forms explained the purpose of the
coverage and provided the insureds the option to purchase
UM/UIM coverage up to their liability limits. He identified one
such form, a 1998 form initialed by Marcia Murray, describing
UM/UIM coverage, in part, as follows:
It’s your choice whether to buy uninsured
motorist or underinsured motorist
coverages. Uninsured motorist coverage
pays for medical expenses, lost wages, and
pain and suffering caused by an uninsured
driver, a hit-and-run driver or a miss-and-
run driver. Underinsured motorist
coverage increases your coverage for
medical expenses, lost wages, and pain and
suffering caused by a driver who doesn’t
have enough insurance to pay for these
damages.
Based on his compliance with § 20-259.01, Jones argued he had met
his duty to the Murrays as a matter of law. The trial court denied
Jones’s motion, finding that the protection afforded to insurers
27
MURRAY v. FARMERS INS. CO.
Opinion of the Court
under § 20-259.01 does not insulate an agent “giving . . . bad advice.”
After the conclusion of the Murrays’ case and again following the
verdict, Jones moved for judgment as a matter of law on the same
grounds, but both motions were denied.
¶51 Although an order denying summary judgment is
generally not appealable, to avoid piecemeal litigation we may
consider the merits of the motion and direct entry of summary
judgment in Jones’s favor if he is “entitled to that as a matter of law
and there are no genuine issues of material fact precluding it.”
Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 7, 965 P.2d 47, 50
(App. 1998); see also State Farm Mut. Auto. Ins. Co. v. Peaton, 168 Ariz.
184, 194, 812 P.2d 1002, 1012 (App. 1990). Further, Jones preserved
the issue for appeal by reasserting it in a motion for judgment as a
matter of law. See John C. Lincoln Hosp. & Health Corp. v. Maricopa
County, 208 Ariz. 532, ¶ 19, 96 P.3d 530, 537 (App. 2004) (party
seeking to preserve summary-judgment issue for appeal, “with a
possible exception for a purely legal issue, must do so by reasserting
it in a Rule 50 motion for judgment as a matter of law or other post-
trial motion”).
¶52 The UMA requires insurers to offer UM and UIM
coverage to their insureds and “creates a ‘safe harbor’ if the insured
signs a [Department of Insurance (DOI)]-approved form rejecting
UM or UIM coverage.” Wilks v. Manobianco, 237 Ariz. 443, ¶ 7, 352
P.3d 912, 914 (2015). As to UM coverage, that act provides:
Every insurer writing automobile liability
or motor vehicle liability policies shall . . .
make available to the named insured
thereunder and by written notice offer the
insured and at the request of the insured
shall include within the policy uninsured
motorist coverage which extends to and
covers all persons insured under the policy,
in limits not less than the liability limits for
bodily injury or death contained within the
policy. The selection of limits or rejection
of coverage by a named insured or
28
MURRAY v. FARMERS INS. CO.
Opinion of the Court
applicant on a form approved by the [DOI]
director is valid for all insureds under the
policy.
§ 20–259.01(A).17 By providing that selection of limits or rejection of
coverage on a DOI-approved form shall be “valid for all insureds
under the policy,” the legislature sought to eliminate fact-intensive
inquiries regarding whether the insurer had offered UM/UIM
coverage. Ballesteros v. Am. Standard Ins. Co. of Wis., 226 Ariz. 345,
¶ 20, 248 P.3d 193, 197 (2011). Insureds are bound by the
DOI-approved form regardless of their subjective understanding of
the form. See id. ¶¶ 14-17 (notice not required to be in Spanish).
¶53 In Wilks, our supreme court held that an insurance
company’s compliance with the statute, by having its insured sign a
DOI-approved form, does not bar a claim against the insurance
agent for negligently failing to procure UIM coverage requested by
the insured. 237 Ariz. 443, ¶¶ 10-11, 352 P.3d at 915-16. Jones
argues that Wilks is distinguishable from the case at hand, noting
that in that case, the plaintiff alleged the insurance agent failed to
procure the UIM insurance she requested, while here the Murrays
contend that Jones misled them as to the nature and importance of
the UM/UIM coverage. He points out that the Wilks court
emphasized “[a]n agent’s common law duty to its clients to procure
requested UIM coverage . . . remains distinct from the duties
prescribed in § 20-259.01,” id. ¶ 11, and asserts “[u]nlike Wilks,
allowing [the Murrays] to pursue a common law negligence claim
against Jones runs directly contrary to the language and purpose of
A.R.S. § 20-259.01, which is intended to protect the insurer from
after-the-fact inquiries concerning whether UM/UIM coverage was
sufficiently offered by the insurer.” He further notes that in Wilks,
the insurance company was dismissed from the action and
17Section (B) imposes the same requirements for UIM
coverage. See § 20–259.01(B).
29
MURRAY v. FARMERS INS. CO.
Opinion of the Court
consequently could not be held vicariously liable for the agent’s
alleged negligence, unlike in this case.18
¶54 The Wilks court observed that “completing the
DOI-approved form eliminates fact questions concerning ‘whether
UM/UIM coverage was sufficiently offered’ by the insurer and
‘whether the terms of the offer were understood.’” Id. ¶ 10, quoting
Ballesteros, 226 Ariz. 345, ¶ 22, 248 P.3d at 198. Noting that the
legislature had intended to “‘protect insurers from after-the-fact
inquiries regarding the offer of coverage’” the court stated that while
the act bars inquiries related to the insurer’s offer of UM and UIM
coverage, “[f]actual inquiries related to other types of alleged
negligence or wrongdoing are neither expressly nor implicitly
barred.” Id., quoting Ballesteros, 226 Ariz. 345, ¶ 22, 248 P.3d at 198
(emphasis omitted). Here there is no dispute that the Murrays were
offered UM and UIM coverage on a DOI-approved form, which they
signed; the issue is whether they were affirmatively misled into
signing it. The statute would work an inequity if the DOI-approved
form could shield an agent from liability for having misled an
insured to sign it, assuming arguendo that the statute applies to
agents under the facts here. Because the issue is not whether the
offer of UM and UIM insurance was made and sufficiently so, but
18Jones concedes that “the Wilks Court . . . addressed the fact
that A.R.S. § 20-259.01 does not mention ‘agents’ and, therefore,
should not be interpreted to protect them to the same extent as the
insurer,” but asserts that because Wilks “did not rest its decision
solely on the absence of the word ‘agent’ in the statute, in a case like
the present one, the Court may extend protection to an agent who
complies with the statutory requirement of obtaining the insured’s
signature on a DOI-approved UM/UIM selection form.” He asserts,
“[t]his is particularly true, when, as here, the plaintiff seeks to hold
the insurance company vicariously liable for the agent’s actions.”
Under the circumstances of this case, however, we find it
unnecessary to address Jones’s argument that compliance with § 20-
259.01 could shield agents, and not only insurance companies, from
liability.
30
MURRAY v. FARMERS INS. CO.
Opinion of the Court
whether Jones violated the applicable standard of care by providing
the Murrays with misleading information about the coverage, which
induced them to reject a higher level of UM and UIM coverage, we
conclude the trial court did not err in denying Jones summary
judgment on the Murrays claims based on § 20-259.01.
Disposition
¶55 For the foregoing reasons, the trial court’s rulings are
affirmed except with respect to the Murrays’ claims for emotional
distress damages and statutory fraud, which rulings are reversed.
31