Murray v. UPS Capital Ins. Agency, Inc.

Filed 10/05/20 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
DAVID MURRAY,
Plaintiff and Appellant, G058353
v. (Super. Ct. No. 30-2018-00997998)
UPS CAPITAL INSURANCE AGENCY, ORDER MODIFYING OPINION;
INC, REQUEST FOR REHEARING
DENIED; NO CHANGE IN
Defendant and Respondent. JUDGMENT
It is ordered that the opinion filed herein on September 11, 2020, be
modified as follows:
(1) At the top of page 2, in the first sentence the word “Postal” will be
deleted and replaced with the word “Parcel”; and
(2) At the bottom of page 26, in the last sentence the word “presumption”
will be deleted and replaced with the words “reasonable inference.”
This modification does not change the judgment.
The petition for rehearing is denied.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
GOETHALS, J.
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Filed 9/11/20 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
DAVID MURRAY,
Plaintiff and Appellant, G058353
v. (Super. Ct. No. 30-2018-00997998)
UPS CAPITAL INSURANCE AGENCY, OPINION
INC,
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Gregory
H. Lewis, Judge. Reversed and remanded.
Miles L. Kavaller APC and Miles L. Kavaller for Plaintiff and Appellant.
Countryman & McDaniel, Michael S. McDaniel, Christoph M. Wahner,
and Mark P. Estrella for Defendant and Respondent.
David Murray purchased used computer equipment worth nearly $40,000,
which was damaged by the United Postal Service (UPS) while it was being transported
from California to Texas. Murray believed he purchased appropriate insurance to cover
this loss, but the insurance company denied his claim. Murray sued his insurance broker,
UPS Capital Insurance Agency (UPS Capital), for breach of contract and negligence. He
asserted UPS Capital owed him a special duty to make the insurance policy language
understandable to an ordinary person and to explain the scope of coverage. The court
granted UPS Capital’s motion for summary judgment after concluding there was no
heightened duty of care and dismissed Murray’s lawsuit.
On appeal, Murray asks us to create a new rule that brokers/agents,
specializing in a specific field of insurance, hold themselves out as experts, and are
subject to a heightened duty of care towards clients seeking that particular kind of
insurance. We decline the invitation to create a per se rule, however, we conclude
Murray raised triable issues of fact as to whether UPS Capital undertook a special duty
by holding itself out as having expertise in inland marine insurance, and Murray
reasonably relied on its expertise. We reverse the judgment and remand the matter for
further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The parties do not dispute the following facts alleged in Murray’s
complaint. In March 2018, Murray purchased computer equipment in California and
arranged for it to be transported to Texas. Murray saw on UPS’s Web site that its
liability is limited to $100 on packages with no declared value. Liability increased if the
customer declared a higher value (up to $50,000 per package) and paid an additional
charge. UPS advised Murray not to declare a higher value, but rather contact its sister
company, UPS Capital, to purchase insurance coverage.
Murray contacted UPS Capital and requested insurance coverage for a
shipment that same day from California to Texas. He completed UPS Capital’s form
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application for a “house policy coverage” and paid $350. On the form, Murray described
the shipment as used computer equipment valued at $37,000. That same day, Tokio
Marine America Insurance Company (Tokio) issued a “Marine Certificate of Insurance”
(Certificate), which Murray believed fully insured the shipment in the event of any loss
or damage by UPS.
The Certificate contained a Free From Particular Average (FPA) provision,
providing the following limitation on coverage: “Warranted free from Particular Average
unless the vessel or craft be stranded, sunk or burnt, but notwithstanding this warranty
Underwriters are to pay any loss or damage to the interest insured which may reasonably
be attributed to fire, collision or contact of the vessel and/or conveyance with any
external substance (ice included) other than water, or to discharge of cargo at port of
distress; and also to pay the insured value of any merchandise and/or goods jettisoned
and/or washed or lost overboard, and the risks of theft of or non-delivery of an entire
shipping package.”
The computer equipment was packaged on a cart with wheels and shrink
wrapped. At some point during the shipment to Texas, UPS damaged the equipment and
Murray submitted a $36,666.85 claim. Tokio informed Murray it assigned a surveyor to
inspect the damaged shipment and prepare a report. Tokio rejected the claim on the
grounds the coverage Murray purchased did not cover the loss. Specifically, the
Certificate’s FPA provision did not apply to the shipping damages. Murray later learned
the policy “covered only catastrophic losses such as the entire destruction of the vehicle
in which the shipment was carried by UPS and not damage caused by factors other than a
catastrophic loss such as mishandling the freight or other causes.”
Murray sued UPS Capital for breach of contract on the grounds it sold
Murray “an insurance product that did not cover the risks of damage to cargo in the
ordinary course or truck transport where there was no catastrophic loss.” His negligence
claim was based on the premise UPS Capital owed a special duty “to the public and to
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[Murray] . . . to exercise reasonable care in its dealings including a duty of disclosure to
inform Murray of the products available to cover in transit cargo loss and damage in the
absence of a catastrophic loss and further to fully explain technical provisions such as the
‘FPA’ [provision].” Murray also asserted UPS Capital owed a “duty of good faith and
fair dealing to its customers to give at least as much consideration to the insured’s
interests as it does to its own.” He maintained UPS Capital breached its duty of care by
“failing to fully explain the FPA provision in the [Certificate], not disclosing other
available insurance products to Murray[,] and not giving Murray the opportunity to
purchase insurance that would cover loss or damage caused by factors other than a
catastrophic loss.”
I. Summary Judgment Motion
UPS Capital filed a motion for summary judgment. It set forth the
following material facts. Murray completed and submitted a form application for “House
Policy Coverage” describing the shipment as being for “used” computer equipment. The
first page of the application form contained the following language: “Used items will not
be insured ‘All-Risk.’” In its motion, UPS Capital explained the term “All-Risk” was
“the broadest form of cargo insurance policy,” which insured “cargo in the event of
physical loss or damage from any external cause subject to exclusions of specific risks.
[Citations.]”
UPS Capital maintained that after receiving Murray’s application form, it
requested additional information from him. Because Murray described the shipment as
containing used computer equipment, UPS Capital included in its e-mail the following
statement: “FYI: We abide by FPA coverage guidelines for used goods.” The e-mail
also restated the FPA provision quoted earlier in this opinion.
In its summary judgment motion, UPS Capital explained an FPA provision
provided “limited coverage that usually applies to used and certain other categories of
goods.” It clarified this type of coverage “insures cargo only for the risk of total loss
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(such as theft), thereby eliminating an insurer’s liability for partial losses except in the
event of specifically named catastrophic perils. [Citation.]”
UPS Capital noted Murray’s initial request for insurance, submission of the
application, premium payment, and issuance of the Tokio Certificate, all took place on
the same day UPS began transporting the computer equipment. It stated the Certificate
clearly contained the FPA provision (using the language previously described in this
opinion). UPS Capital alleged the following: “Despite its inclusion in the [Certificate],
the disclaimer language on the insurance application and the e-mail from [UPS Capital]
bringing attention to the existence of the FPA provision, [Murray] never inquired with
[UPS Capital] about the meaning of ‘All-Risk’ or [‘FPA’], or ‘Free of Particular
Average’ or ‘Warranted free from Particular Average.’” It asserted, “[Murray] never
gave any indication to UPS Capital that he did not understand the meaning or effect of
the FPA coverage applicable to his shipment versus [‘All-Risk’] coverage.”
Additionally, “[Murray] never raised any questions with UPS Capital regarding the
insurance procured generally, e.g., what risks were covered, what risks were not covered,
etc.” It noted Murray never raised any questions, complaints, requests to change the
policy before the computer equipment shipped. Murray also did not tell UPS Capital he
did not understand the policy or believed the shipment was insured “in case of any loss or
damage by UPS or under [the] broader ‘All-Risk’ coverage terms.”
UPS Capital clarified Murray “never made any requests as to specific
coverage other than what [was] contained in the communications” with UPS Capital
“which merely identify the carriage, route and type, the description and value of the
cargo, etc.” UPS Capital maintained Murray never requested insurance to cover risks of
partial loss or damage and “[a]t no time” did UPS Capital “make any coverage
representations” about the purchased insurance “(e.g., it was adequate, sufficient, good,
perfect, better, full, or complete, etc.)”
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In light of the above facts, UPS Capital argued Murray’s contract cause of
action failed for the following reasons: “Given the lack of any evidence [Murray] made a
specific request for lacking coverage or the indisputable evidence that [he] accepted the
insurance provided without any inquiry or complaint, there is no evidence for [Murray] to
establish [UPS Capital] had a contractual obligation to provide the lacking coverage
much less that it breached such an obligation.”
As for the negligence cause of action, UPS Capital noted the claim was
based on two theories. First, Murray alleged UPS Capital owed “a duty of care to
disclose other available insurance products and provide an opportunity to purchase
insurance not covered in the insurance product that was procured.” Second, Murray
maintained UPS Capital had a duty of care to fully explain the Certificate’s FPA
provision. UPS Capital asserted that as a matter of law an insurance agent’s duty of care
would not include the tasks Murray raised in his complaint. It reasoned that because the
communications between it and Murray did not give rise to a special duty of care, “the
onus was on [Murray] to tell [UPS Capital what [he] needed.” Because Murray’s request
did not include any “specificity with regard to coverage needed,” UPS Capital’s general
duty of care did not include the responsibility of making sure Murray had “adequate
coverage to protect against all eventualities including the one which resulted in the denial
of coverage under the insurance procured.”
II. Opposition to Summary Judgment Motion
In his opposition, Murray cited case authority holding an insurance agent
may assume additional duties by an express agreement or holding itself out as being a
specialist. Relying on the evidence submitted by UPS Capital, Murray asserted the
broker “clearly holds itself out as specializing in inland marine insurance covering UPS
shipments [and it] acted as an agent for [Tokio,] which issued house policies for both
FPA as well as All-Risk coverage.” He added that because UPS Capital “‘holds itself
out’ as having expertise in this field” it had “a duty to inform the casual lay customers . . .
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of the basic coverage details of the insurance they are going to purchase.” Murray
elaborated UPS Capital owed a special duty because it was only a broker “of marine or
inland marine coverages, not the common homeowner’s, or automobile liability
insurance, [and] had the obligation at least to advise of, if not offer, the available
coverages and explanations of those coverages.”
To support these assertions, Murray cited to Travis Dixon’s declaration,
filed in support of the motion for summary judgment. Dixon was a Senior Marketing
Product Manager with UPS Capital. He declared UPS Capital was “a licensed insurance
broker in all 50 states” and a “wholly owned subsidiary of [UPS], but does not operate
transportation equipment, nor provide or arrange for transportation or logistics services as
does UPS and other UPS companies.”
Dixon also described the types of policies offered by UPS Capital as
follows: “[It] maintained, a ‘house’ or ‘open’ policy of insurance with insurer Tokio . . .
under which [UPS Capital had] the liberty to include customer’s shipments of cargo.”
The policy in effect provided coverage for both international shipments and domestic
shipments and was “specifically endorsed to cover U.S. domestic inland shipments by
truck[.]” He noted, “A customer’s shipment need not be transported by UPS in order to
be included by [UPS Capital] for coverage under the Policy.” To include a cargo
shipment, UPS Capital would report shipment details to Tokio, who would generate a
Certificate “thereby confirming the shipment’s inclusion for coverage under the Policy.”
Dixon confirmed Tokio issued two types of coverage. “As is consistent
with marine and inland marine insurance policies generally, there are two fundamental
types of coverage afforded under the Policy: ‘All-Risk’ and ‘FPA’ (Free of Particular
Average) . . . ‘All-Risk’ is the broadest form of coverage and insures cargo in the event of
physical loss or damage from any external cause subject to exclusions of specific risks.
‘FPA’ coverage[,] on the other hand, insures exclusively against total loss (such as theft)
except that partial losses are covered in the event of specifically named catastrophic
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perils as set forth within the FPA clause. Whether a shipment will be insured ‘All-Risk’’
or ‘FPA’ depends upon the commodity. As is consistent with marine and inland marine
insurance policies generally, used items are insured ‘FPA’ under the Policy because their
pre-shipment condition is unknown to the insurer. This is set forth on the second page of
the Policy Conditions[.]”
Murray disputed UPS Capital’s claim the application clearly denoted the
policy could not be for All-Risk coverage. As noted by Dixon in his declaration, UPS
Capital sent Murray an application containing the following language on the first page:
“Used items will not be insured ‘All-Risk.’” Dixon concluded that because Murray
completed the application and identified his shipment as being comprised of used items it
was undisputed he understood the shipment would not have All-Risk coverage. Murray
refuted this claim by pointing out the application’s second page containing payment
information. Under the section stating the cost of the policy and that there would be a
$100 deductible, the application indicated the coverage was All-Risk. Specifically, the
application contained the following statement: “Coverage: All Risk/Other (To be
completed by UPS Capital).” Nowhere on the application were the terms FPA,
FPA provision, FPA coverage, or “Free from Particular Average” mentioned.
Murray noted Dixon stated in his deposition the word “‘Other’” on the
second page of the application referred to FPA or a different kind of coverage. When
asked why the words “‘All-Risk’” were not crossed out, Dixon explained, “We just
generally leave that wide open like that. It’s ‘All Risk,’ slash, ‘Other,’ so you’re just
paying for the coverage that you’re purchasing. You’re not slashing or circling or
anything. You’re just leaving it completely open.” Dixon conceded Murray could have
purchased “All-Risk” coverage for his used computer equipment in a one-time only
shipment “if there was some type of inspection or pre-shipment survey.” Dixon said that
Murray indicated he needed coverage for the same day he purchased the equipment. If
Murray had wanted “All-Risk” coverage they would have needed time to contact Tokio
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and “see what special considerations could have been put in place.” Because none of this
information was included in the application, Murray concluded any customer could
reasonably assume the coverage was “All-Risk” despite the fine print statement on the
first page. Moreover, Murray asserted that if he had been told about this option of better
All-Risk coverage he would have delayed the shipment for the necessary survey.
Murray also disputed what reasonable inferences were created by UPS
Capital’s e-mail to him after he confirmed he was shipping used goods. The e-mail stated
the following: “FYI: We abide by FPA coverage guidelines for used goods” and quoted
the exact language Tokio would include the policy’s FPA provision. Murray explained
UPS Capital did not provide any explanation about the FPA provision listed in the e-mail.
Moreover, Murray asserted UPS Capital sent an e-mail which created the inference his
shipment would be covered for partial or total damage in transit. Specifically, the e-mail
provided the following information: “Your COI has been processed successfully and is
attached, which covers your shipment from Irvine, [California] to Spring, [Texas]. Your
original receipt of payment is also included for reference. Keep this certificate on file for
your records. As a friendly reminder, always leave any ‘Declared Value’ fields blank and
do not opt for additional package or freight liability coverage when shipping with UPS
insurance.” (Italics added.) Murray asserted he would have asked about FPA coverage,
but this “friendly reminder” caused him to believe there was no need to question the
scope of coverage because it included partial or total damage regardless of the cause. For
this reason, he disagreed with UPS Capital’s claim it was undisputed he never gave any
indication he did not understand the FPA provision or questioned the scope of insurance
procured. Murray complains, “[This] statement might be considered misleading, if not
actually misrepresenting the nature and scope of the FPA coverage.”
Murray concludes the insurance application wherein he identified the
shipment as being comprised of used items clearly conveyed the need for “insurance for
an interstate UPS motor carrier shipment of used computer equipment, making no
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distinction between coverage for a total loss or just partial loss or for that matter, the
cause of the loss.” He argues, “That should have been enough for [UPS Capital] to
advise Murray of both the FPA and All-Risk house policy options particularly where
FPA does not provide coverage for less than a total loss caused by mishandling of cargo,
a frequent cause of damage to interstate motor carrier shipments.”
The trial court granted UPS Capital’s motion for summary judgment and
dismissed the lawsuit. It concluded Murray’s claims for breach of contract and
negligence were based on UPS Capital’s purported affirmative duty to assist him in
purchasing an insurance product that covered the “risks of damage to cargo in the
ordinary course or truck transport—or at the very least, to inform [Murray] of the
availability of such products and to explain fully the technical ‘FPA’ provision.” The
court reasoned, “Generally speaking, California law is well settled as to the limited duty
of insurance brokers, which is only to use reasonable care, diligence, and judgment in
procuring the insurance requested by an insured. (Travelers Property Casualty Co. of
America v. Superior Court (2013) 215 Cal.App.4th 561, 578-579 [(Travelers)] [citations
and quotations omitted]; see also Jones v. Grewe (1987) 189 Cal.App.3d 950, 954-955.)”
The court also acknowledged there were three exceptions to the general rule outlined in
the Travelers case and Kitzpatrick v. Hayes (1997) 57 Cal.App.4th 916 [re: insurance
agents] (Kitzpatrick).)
Applying this legal authority, the trial court determined UPS Capital met its
burden of showing it “had no duty above and beyond those normally found in any agency
relationship” because Murray asked for same-day insurance coverage for used computer
equipment and was advised “All-Risk” protection was not available for cargo described
as used. The court noted Murray did not seek additional information or ask about other
insurance options. The court recognized Murray’s theory UPS Capital held itself out as
having “expertise in the inland marine insurance,” however, Murray failed to provide
evidence “that would allow a reasonable trier of fact . . . to conclude as much.” It
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reasoned, although UPS Capital sells “a specialized type of insurance,” Murray needs to
provide something more to create a reasonable inference UPS Capital “‘held itself out as
an expert in that particular field.’” In addition, the court rejected Murray’s argument
UPS Capital had an independent, affirmative duty to advise him about the relevant FPA
provision written in “‘archaic language.’” It determined this claim was contrary to
established case law.
DISCUSSION
I. Standard of Review
“Summary judgment is a severe remedy which is to be granted with
caution.” (Paper Savers, Inc. v. Nacsa (1996) 51 Cal.App.4th 1090, 1094.) “A court
shall grant a motion for summary judgment if all the papers show there is no triable issue
as to any material fact and the moving party is entitled to a judgment as a matter of law.
[Citation.]” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 370.) “We
review a trial court’s grant of summary judgment de novo. [Citation.] ‘[T]he party
moving for summary judgment bears an initial burden of production to make a prima
facie showing of the nonexistence of any triable issue of material fact; if he carries his
burden of production, he causes a shift, and the opposing party is then subjected to a
burden of production of his own to make a prima facie showing of the existence of a
triable issue of material fact.’ [Citation.]” (Casey v. Perini Corp. (2012)
206 Cal.App.4th 1222, 1228.) Once the defendant has met its burden, the party opposing
summary judgment “shall not rely upon the allegations or denials of its pleadings,” but
rather “shall set forth the specific facts showing that a triable issue of material fact exists
. . . .” (Code Civ. Proc., § 437c, subd. (p)(2).)
On appeal, “[w]e review the record and the determination of the trial court
de novo. [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990,
1003.) “In performing our de novo review, we must view the evidence in a light
favorable to plaintiff as the losing party [citation], liberally construing [the plaintiff’s]
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evidentiary submission while strictly scrutinizing defendants’ own showing and resolving
any evidentiary doubts or ambiguities in plaintiff’s favor. [Citations.]” (Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 768-769 (Saelzler).) “There is a triable
issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to
find the underlying fact in favor of the party opposing the motion in accordance with the
applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
850, fn. omitted.)
II. Issues on Appeal
In his appellate briefing, Murray focuses on the negligence cause of action,
and not the breach of contract action. We appreciate the issue of UPS Capital’s
contractual obligation overlaps with the primary issue of his negligence claim, i.e.,
whether UPS Capital had a special duty of care to procure adequate insurance and assist
Murray in understanding the scope of coverage. However, as noted by UPS Capital, by
failing to set forth any legal analysis on the contract claim Murray has waived any other
challenges to the court’s ruling on the contract claim. (Badie v. Bank of America (1998)
67 Cal.App.4th 779, 784-785 [appellant must present reasoned argument]; In re Marriage
of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3 [reviewing court may disregard
contentions unsupported by legal or factual analysis]; Kim v. Sumitomo Bank (1993)
17 Cal.App.4th 974, 979.)
III. Negligence
Murray contends the trial court erred in finding that the complaint did not
adequately allege negligence liability because he failed to present facts establishing UPS
Capital owed a heightened duty to advise Murray that All-Risk insurance was available
and/or explain the limitations of FPA coverage. We found no published cases on the
issue of whether insurance brokers, selling one kind of policy, automatically assume
additional duties simply because they are specialists, implicitly holding themselves out as
having expertise in that given field of insurance. Murray proposes we create a per se rule
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imposing a heightened duty of care for all specialized agents/brokers. While we decline
to institute such a rule, we conclude public policy supports the creation of a reasonable
inference of expertise when there is evidence the agent specializes in a particular field of
insurance. In this case, the undisputed evidence of UPS Capital’s specialization, in
addition to Murray’s other evidence, created a triable issue of material fact that if found
true in Murray’s favor would show UPS Capital assumed a special duty to advise Murray
about the limited coverage available to ship his used goods with UPS.
A. General Rules Regarding Any Agency Relationship
As a general rule, an insurance agent “assumes only those duties found in
any agency relationship such as ‘reasonable care, diligence, and judgment in procuring
the insurance requested by an insured.’ [Citations.]” (Paper Savers, Inc. v. Nacsa (1996)
51 Cal.App.4th 1090, 1095 (Nacsa).) An insurance agent has no duty to affirmatively
advise an individual seeking insurance about different or additional coverage. (Jones v.
Grewe (1987) 189 Cal.App.3d 950, 954; see also Gibson v. Government Employees Ins.
Co. (1984) 162 Cal.App.3d 441, 452 [holding no fiduciary duty “to (1) make available to
them a particular kind of insurance, (2) advise them of the availability of such coverage
elsewhere in the industry, or (3) advise them of inadequacies in coverage of which
plaintiffs should, as reasonable persons, have themselves been aware”].)
However, an insurance agent may assume a greater duty to the insured
when one of the following three exceptions arise: “(a) the agent misrepresents the nature,
extent or scope of the coverage being offered or provided [ . . . ], (b) there is a request or
inquiry by the insured for a particular type or extent of coverage [ . . . ], or (c) the agent
assumes an additional duty by either express agreement or by ‘holding himself out’ as
having expertise in a given field of insurance being sought by the insured.” (Fitzpatrick,
supra, 57 Cal.App.4th at p. 927).)
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“‘[W]hether a duty of care exists is a question of law for the court.
[Citations.] Also, whether, and the extent to which, a new duty is recognized is
ultimately a question of public policy. [Citation.]’ [Citation.]” (Fitzpatrick, supra,
57 Cal.App.4th at p. 920.) Any extension of these existing exceptions or creation of a
new duty is ultimately a question of public policy. (Id. at p. 920.)
B. Extended Duty of Care
As noted above, the Fitzpatrick case delineated three exceptions to the
general rule limiting an agent’s duty of care. Murray asserts specialized agents, such as
UPS Capital, are “holding themselves out as having expertise” and fall within
Fitzpatrick’s third exception (Exception C). We found no case law specifically defining
the phrase “holding themselves out as having expertise.” In determining what factors
should be considered when applying this exception, it is helpful to first parse through
existing case law.
The 1987 Jones case provides the starting framework for determining what
constitutes “holding out” oneself out as having expertise. (Jones, supra, 189 Cal.App.3d
at p. 954.) In Jones, a minor fell into a swimming pool and suffered serious injuries. (Id.
at p. 953.) After settling with the family, the apartment building owners (landlords) filed
a lawsuit against the agents who insured the apartment building, arguing they breached
their duties by not providing enough insurance to cover the apartment building’s
liabilities. (Ibid.) The landlords argued they were relying on the expertise of the
insurance agents due to their past relationship of purchasing policies and history of
relying on the agent’s advice on insurance matters. (Id. at p. 956.)
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The court’s majority sustained the agent’s demurrer, adopting the reasoning
1
provided by a 1984 Iowa Supreme Court opinion and a treatise on insurance law.
(Jones, supra, 189 Cal.App.3d at p. 954.) Relying on Sandbulte, the majority in Jones
held an insurance agent only assumes “those duties normally found in any agency
relationship” and “[t]he mere existence of such a relationship imposes no duty on the
agent to advise the insured on specific insurance matters.” (Jones, supra, 189 Cal.App.3d
at p. 954.) But the court also recognized an agent may “assume additional duties by an
express agreement or a holding out,” and that “the agent may be liable to the insured for
losses which resulted as a breach of that special duty.” (Id. at pp. 954-955.)
“The mere allegation in a complaint . . . that an insured has purchased
insurance from an insurance agent for several years and followed his advice on certain
insurance matters [was] insufficient to imply the existence of a greater duty. Such
reliance is not at all uncommon when an insured has done business with an insurance
agency over a period of time. [Citation.] Nor can the existence of a broader agency
relationship warranting the imposition of a greater duty be reasonably inferred from the
complaint’s allegation that respondents had assured appellants of the adequacy of their
liability coverage. As the court noted in Sandbulte . . . an insured’s request for ‘sufficient
coverage’ and an agent’s assurance that the policy provided ‘adequate’ coverage do not,
in and by themselves, imply an ‘expanded principal-agent relationship.’ Such an
exchange usually occurs within the context of the general principal-agent relationship.
1
Our Supreme Court embraced the holding of Sandbulte v. Farm Bureau
Mut. Ins. Co. (Iowa 1984) 343 N.W.2d 457, 464 (Sandbulte), which cited extensively to
16A Appleman, Insurance Law & Practice (1981) § 8836, pp. 64-66.) However, in 2010
the Iowa Supreme Court overruled Sandbulte in Langwith v. American National General
Insurance Co. (Iowa 2010) 793 N.W.2d 215, 223-224 (Langwith), abandoning the
“restrictive requirements for an expended agency duty.” And then Langwith was
legislatively overruled the following year; the Legislature codified the requirements of
Sandbulte in Iowa Code section 522B.11(7). In short, Sandbulte is still good law in
Iowa.
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‘Purchasers of insurance generally seek “sufficient coverage.”’ [Citation.] To imply the
existence of a broader agency agreement from such an exchange, the Sandbulte court
said, would in effect make the agent ‘a blanket insurer for his principal.’ [Citation.]”
(Jones, supra, 189 Cal.App.3d at p. 956.)
While the Jones majority held continued reliance was not enough to imply
expertise, the court declined to define what would have implied expertise. Further, the
court considered public policy implications and ultimately declined to expand the
principal-agent relationship duty because “[n]either an insurance agent nor anyone else
has the ability to accurately forecast the upper limit of any damage award in a negligence
action against the insured by a third party.” (Jones, supra, 189 Cal.App.3d at p. 957.) In
short, because the landlords had unfettered access to the information required to properly
calculate their liability insurance, whereas the insurance agent did not, and because future
catastrophes are unforeseeable, the responsibility ultimately rested with the landlords to
determine their upper limit. (Ibid.)
In his dissent, Justice Lui concluded the complaint stated facts from which
a special duty could reasonably be inferred. (Jones, supra, 189 Cal.App.3d at p. 958 (dis.
opn. Lui, J.).) He read the complaint to say the agents “represented themselves to be
experts at procuring appropriate liability insurance and encouraged appellants to depend
and rely on their advice, service, and expertise; they also expressly and impliedly
represented that the insurance protection obtained by them was ‘adequate.’” (Ibid.)
Justice Lui noted the majority relied on Sandbulte, which had declined to find an
expanded agency agreement “but noted situations where a special duty might arise, for
example, when ‘there is a long-established relationship of entrustment between insurance
counselor or agent and client from which it clearly appears that the counselor appreciated
that there was a duty to take the initiative in giving comprehensive advice to [the] client
on insurance matters. . . .’ [Citation.]” (Ibid.)
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Justice Lui also noted the Sandbulte court relied on “Appleman, Insurance
Law and Practice (1981) section 8836, at pages 64-66 as follows: ‘Ordinarily, of course,
an insurance agent assumes only duties normally found in an agency relationship . . . and
he assumes no duty to advise the insured merely by such relationship. However, where
an agent holds himself out as a consultant and counselor, he does have a duty to advise
the insured as to his insurance needs, particularly where such needs have been brought to
the agent’s attention. And in so doing, he may be held to a higher standard of care than
that required of the ordinary agent since he is acting as a specialist. Accordingly, the
agent may be liable to an insured for the damage suffered by his failing to inform him as
to a potential source of loss and by his failing to recommend insurance therefor.’”
(Jones, supra, 189 Cal.App.3d at p. 958 (dis. opn. Lui, J.).)
Fast forward 25 years, and the Iowa Supreme Court has overruled its
Sandbulte, supra, 343 N.W.2d 457 decision in Langwith, supra, 793 N.W.2d at page 224.
It stated the following: “[T]he circumstances under which an expanded agency
agreement could arise were narrowly circumscribed in Sandbulte: ‘the agent holds
himself out as an insurance specialist, consultant or counselor and is receiving
compensation for consultation and advice apart from premiums paid by the insured.’
[Citation.] Although this court cited some authority for its holding in Sandbulte, we gave
no rationale for such a restrictive approach. [¶] Our examination of the general principles
governing agency relationships convinces us that a more flexible method of determining
the undertaking of an insurance agent is appropriate.” (Langwith, supra, 793 N.W.2d. at
p. 221.)
Relying heavily on The Restatement Third of Agency the court in Langwith
determined an insurance agent’s ordinary duty can be changed and expanded by
agreement of the parties. (Langwith, supra, 793 N.W.2d at p. 221.) “The defendants
have advanced no reason, nor have we identified one, that would justify the limitations
placed on the circumstances that might be considered in determining the duty undertaken
17
by an insurance agent, as stated in Sandbulte. Therefore, we hold that it is for the fact
finder to determine, based on a consideration of all the circumstances, the agreement of
the parties with respect to the service to be rendered by the insurance agent and whether
that service was performed with the skill and knowledge normally possessed by insurance
agents under like circumstances. [Citation.]” (Langwith, supra, 793 N.W.2d at p. 221.)
The Langwith expansion of the exception was legislatively overturned in
2011 (2011 Iowa Acts ch. 70, § 45), when the Legislature enacted Iowa Code section
522B.11(7), which provided, inter alia the following: “Unless an insurance producer
holds oneself out as an insurance specialist, consultant, or counselor and receives
compensation for consultation and advice apart from commissions paid by an insurer, the
duties and responsibilities of an insurance producer are limited to those duties and
responsibilities set forth in Sandbulte . . . .” The Legislature determined insurance
brokers should not have higher or greater duties except in narrowly defined
circumstances.
This above history is noteworthy because it highlights how the Jones court
disagreed with and refused to adopt all of Sandbulte’s analysis and holding. Neither the
majority nor dissenting opinion mentioned the Iowa Supreme Court’s restrictive approach
in defining an agent’s expanded duty (that was later codified). Instead, the Jones court
adopted a totality-of-circumstances analysis, leaving it to the fact finder to examine
multiple factors to decide if the insurance broker/agent assumed a special duty by holding
themselves out as having expertise. As we will now discuss, other courts in California
have adopted a similar flexible approach.
Returning to California jurisprudence, in 1997 the appellate court in
Fitzpatrick carefully examined the existing applicable case law and synthesized three
succinct exceptions to the “no duty” principle announced in Jones. (Fitzpatrick, supra,
57 Cal.App.4th pp. 923-927.) The Fitzpatrick first exception, when “the agent
misrepresents the nature, extent or scope of the coverage being offered or provided”
18
(Exception A), was based on the court’s analysis of three cases. (Fitzpatrick, supra,
57 Cal.App.4th at p. 927, citing Nacsa, supra, 51 Cal.App.4th 1090 [agent
misrepresented policy provided full coverage to replace business personal property in
case of total loss]; Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110 (Desai)
[agent misrepresented insured getting 100 percent replacement cost coverage with real
property insurance policy]; and Free v. Republic Ins. Co. (1992) 8 Cal.App.4th 1726(Free) [homeowner specifically inquired if coverage limits adequate to rebuild home].)
The second exception, when “there is a request or inquiry by the insured for
a particular type or extent of coverage” (Exception B), was based on the Fitzpatrick
court’s analysis of Westrick v. State Farm Insurance (1982) 137 Cal.App.3d 685(Westrick). (Fitzpatrick, supra, 57 Cal.App.4th at p. 927.) In Westrick, an insurance
agent failed to disclose facts about immediate coverage for a recently purchased truck in
response to a specific inquiry about coverage. (Westrick, supra, 137 Cal.App.3d at
pp. 688-689.) The court determined the agent had a duty to explain a limiting provision
to the insured because the insured made prior inquiries regarding coverage of a welding
truck under his existing policy and the agent had superior knowledge of the scope of the
2
policy’s automatic coverage clause. (Id. at pp. 691-692.)
Relevant to this case, the Fitzpatrick court described the third exception,
Exception C, as applying when “the agent assumes an additional duty by either express
agreement or by ‘holding himself out’ as having expertise in a given field of insurance
being sought by the insured (as in Kurtz).” (Fitzpatrick, supra, 57 Cal.App.4th at p. 927,
citing Kurtz, Richards, Wilson & Co. v. Insurance Communicators Marketing Corp.
(1993) 12 Cal.App.4th 1249 (Kurtz).) The court briefly described the Kurtz case, where
2
We disagree with Murray’s contention this case supports his appeal.
Exception B required evidence of a request or inquiry for specific insurance to create a
special duty. Murray only presented evidence he did not understand inland marine
insurance and he was relying on UPS Capital’s expertise to select appropriate coverage.
Thus, the Westrick case is not applicable.
19
the court overruled an order sustaining a demurrer without leave to amend after
concluding the complaint alleged the plaintiff “in its quest for group medical, life and
accident insurance for its employees, had relied on the defendant broker ‘who held
themselves out as expert brokers and agents in the field.’” (Fitzpatrick, supra,
57 Cal.App.4th at p. 925.)
In the Kurtz case, plaintiffs were “not knowledgeable in the field of
medical, life, and accident insurance, and throughout the process of obtaining insurance
relied on” the insurance brokers. (Kurtz, supra, 12 Cal.App.4th at pp. 1254-1255.) As
part of the application process, plaintiff’s treasurer signed a certificate stating the group
plan was not subject to the Medicare provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 (TEFRA). Before signing the certificate, plaintiff asked the
agent what it meant. (Id. at p. 1255.) The agent responded plaintiff was not subject to
the Medicare provisions of TEFRA and “urged him to sign the certificate.” (Ibid.) Two
years later, several employees became seriously ill and the insurance company cancelled
the policy and demanded reimbursement for amounts paid out because the insured falsely
represented on the certificate that it was not subject to Medicare. (Ibid.) Plaintiff sued
the agent for fraud, negligent misrepresentation, and negligence. (Ibid.)
On the element of duty, the Kurtz court rejected the agent’s argument it
only owed a duty to the insurer and not the insured. (Kurtz, supra, 12 Cal.App.4th at
p. 1257.) It acknowledged the general no duty rule set forth in Jones and noted “[a]n
agent may assume additional duties by an agreement or by holding himself or herself out
as having specific expertise. [Citation.]” (Ibid.) The court concluded the complaint
alleged facts that if true would establish the agents “entered into a relationship with [the
insured,] which [give] rise to a duty of care, including a special duty assumed when they
held themselves out as experts on TEFRA.” (Ibid.) Unfortunately, for purposes of our
analysis, the court in Kurtz did not specify what facts established the agents held
themselves out as experts on TEFRA. However, what was plainly obvious in this case
20
was there was evidence the parties’ interaction created a dependent relationship, whereby
the client became reliant on the expert advice of the insurance agent. Due to multiple
factors, the court ruled a jury could reasonably conclude the agent assumed additional
duties to correctly advise his client and meet his specific insurance needs.
Returning to the Fitzpatrick case, the court granted an insurance agent’s
motion for summary judgment, rejecting the insured’s argument Exceptions B and C
applied, or that public policy called for an expanded duty of care. (Fitzpatrick, supra,
57 Cal.App.4th at pp. 929-930.) In that case, a family (the insured) sued their agent,
alleging he negligently failed to advise about the availability of a personal umbrella
policy in addition to an automobile policy. In arguing Exception C applied, the insured
presented the following facts: (1) the agent knew the insured wanted the upper limits of
coverage, and despite knowing State Farm offered a $1 million personal umbrella policy
at no substantial additional costs, the agent told the insured the coverage procured was
adequate; and (2) State Farm held its agents out as experts in giving advice regarding
coverage and advertised this expertise in its brochure. (Id. at pp. 927-928.)
The court in Fitzpatrick rejected application of Exception C, concluding
State Farm’s brochure (which the insureds never saw) merely suggested that the insured
ask himself (and then the agent) about additional insurance needs was “far from a
‘holding out’ of special expertise . . . .” (Id. at p. 929.) The court noted the brochure “in
very bland terms” suggested “that the insured ask himself or herself—and perhaps then
the agent—about additional insurance needs.” (Ibid.) The advertisement was insufficient
evidence the agent was holding itself out as experts in the car insurance field.
The court also rejected the “invitation” to expand the duties of insurance
agents and brokers to affirmatively volunteer advice about the need for additional
umbrella coverage. (Fitzpatrick, supra, 57 Cal.App.4th at p. 929.) “The factors cited by
[the insured] in favor of such an expanded duty, e.g., the longtime relationship between
them and their agent, the generally superior knowledge of the agent regarding coverages,
21
the agent’s review of the policies issued, etc., were almost all present in the authorities
discussed above in which the courts have steadfastly refused to find any such enlarged
duty. Even if we were disposed to expand the scope of tort duties generally, which we
are not, this record simply does not present an appropriate basis upon which to do so.”
(Id. at pp. 929-930.)
In their briefing, UPS Capital and Murray both cite to Travelers, supra,
215 Cal.App.4th 561. Murray asserts Travelers supports his position that Exception C
applies to specialists. We agree with UPS Capital’s reading of the case as merely
reaffirming settled law that insurance brokers owe a limited duty to their clients unless
the agent assumes additional duties. (Id. at pp. 579-580.) While the case provides a
helpful outline of the general rule, it does not offer any insight into what characterizes
holding oneself out as having expertise in a field of insurance.
Both UPS Capital and Murray also discuss Williams v. Hilb, Rogal &
Hobbs Ins. Services of California, Inc. (2009) 177 Cal.App.4th 624, 628 (Williams), a
more helpful case that applied Exception C. In the Williams case, the owner of a
spray-on truck bed lining dealership brought an action against an insurance agency (the
agency) after an injured worker obtained a multimillion dollar judgment. (Id. at p. 627.)
The owner alleged the agency was liable for negligently “advising on, procuring, and
maintaining an insurance package for a new business venture that did not include workers
compensation insurance.” (Ibid.) The trial court determined the agency was liable and
the appellate court agreed, concluding there was ample evidence the agency’s
representative (the agent) held herself out as having expertise in the insurance needs of
the dealership, creating a special duty of care. (Id. at pp. 637, 640.)
The court in Williams specifically highlighted the following evidence as
being relevant to its analysis: (1) the agent previously worked with the owners to bundle
insurance plans needed for other dealerships and represented herself as “‘the expert on
the product necessary to satisfy [the dealership’s] insurance needs’”; (2) the agent told
22
the owners a meeting to discuss insurance plans was not necessary because of her
expertise; (3) the owner did not request specific insurance and asked the agent for
insurance “needed to operate the business”; (4) the owner understood the agent was “the
go-to person” for dealership insurance needs; (5) the owner filled in basic information but
left blank all the portions of the application relating to insurance coverages; (6) the agent
selected the insurance coverages and did not give it to the owner to review before she
submitted it to the insurance company; (7) the agent was aware that employees spraying
paint had “the most dangerous jobs and that it would be important for a sprayer’s
employer to know if its insurance provided coverage for on-the-job injuries”; (8) she was
aware workers compensation insurance was mandatory in California; and (9) the agent
represented and marketed the insurance package as having been specifically designed for
the owner. (Williams, supra, 177 Cal.App.4th at pp. 627-628.) It was not until after one
of the sprayers became severely injured in a fire that the owners learned they did not have
the necessary workers compensation coverage. (Id. at p. 629.)
The court rejected the agency’s argument there was no legal basis for
finding the agent’s expertise “created a heightened duty to [the owners], because ‘[a]ny
expertise that she possessed did not extend to worker’s compensation insurance, which
was outside the scope of her alleged expertise concerning the insurance needs of [the
dealership,’ and because [the owners] ‘never knew about the supposed expertise, and
never relied on it.’” (Williams, supra, 177 Cal.App.4th at p. 637.) The court noted the
first claim was contradicted by the agent’s own claims her staff calculated workers
compensation premiums and she spoke with the owners about such insurance before she
sent her insurance proposal. The second claim was refuted by the owner’s testimony he
understood the agent was “‘the go-to person’” for the dealership’s insurance needs and he
relied on her expertise and selection of insurance coverages. (Ibid.) The court held there
was “plenty of evidence” to support the trial court’s finding the agent “held herself out as
having expertise in the insurance needs of . . . [the] dealerships . . . .” (Ibid.)
23
UPS Capital argues Williams is inapplicable to the facts because “[t]he
special expertise that formed the basis for the application of the exception was not merely
selling a particular bundle of insurance products exclusively for [the truck lining]
dealerships but rather being an expert on the products necessary to satisfy a new
dealership’s insurance needs.” However, this analysis misstates the exception. The law
does not necessitate an insurance agent be an expert in the needs of a particular client, nor
does it only require the agent to procure what is mandated by law. Rather, Williams
applied Exception C because the agent held herself out “‘as having expertise in a given
field of insurance being sought by the insured.’ [Citation.]” (Williams, supra,
177 Cal.App.4th at p. 636.) Therefore, contrary to UPS Capital’s argument, to satisfy
Exception C, there need only be evidence UPS Capital held itself out as having expertise
in inland marine insurance, it did not need to be an expert in Murray’s particular needs.
We are also not persuaded by UPS Capital’s interpretation of the case as
narrowly defining an agent’s heightened duty as not including the obligation to present or
explain insurance options. It maintains the duty was limited to procuring insurance
legally required. The court in Williams determined that when an agent assumes
additional duties, this may include a duty to advise because the insured is relying on
“some level of expertise with respect to” the client’s insurance needs. (Williams, supra,
177 Cal.App.4th at p. 637.) The court unequivocally stated liability was based on the
agent’s “failure to advise [the owner] of the necessity for [worker’s compensation]
insurance, and that it was not included in her package for [the] dealerships.” (Ibid.,
italics added.) It ruled the agent “breached the duty she assumed by holding herself out
as ‘the expert on the product necessary to satisfy [the dealership’s] insurance needs.’”
(Ibid.) We are unaware of any reason why the duty to advise would be limited to only
state-mandated insurance. Because an insured is relying on the agent’s expertise, the
duty to advise logically extends to relevant coverage information within the agent’s
24
“expertise in a given field of insurance being sought by the insured.” (Fitzpatrick, supra,
57 Cal.App.4th at p. 927.)
C. Our Resolution of the Factors Relevant to Exception C
As mentioned, published case law in California regarding Exception C has
not yet addressed the question of whether insurance brokers, who sell specialized
insurance, impliedly hold themselves out as experts. Our review of existing case
authority revealed courts have adopted a flexible approach to determining whether a
broker or agent has undertaken a heightened duty. We conclude neither case authority
nor public policy support creation of a per se rule regarding specialists, but rather courts
must utilize a totality of the circumstances approach.
Cases such as Jones and Fitzpatrick explain an agent cannot be deemed a
specialist based on factors such as the length of the relationship with the insured, the
agent’s general superior knowledge regarding coverages, evidence the agent reviewed the
policies, or unread brochures merely advertising agents are well trained to answer
questions. Those courts also acknowledged the outcome in their cases would be different
if the agent was an acknowledged specialist or consultant. The Kurtz and Williams cases
expanded the scope of inquiry, focusing on factors relevant to examining the nature of the
parties’ interactions. It acknowledged the term “holding out” encompassed more than
marketing tools (advertising and brochures) and could be based on an agent’s reputation
as the “go-to” specialist for a particular industry. Furthermore, the Williams court
determined it can be reasonable to infer agents who customize insurance packages or sell
exclusively to a distinct class of insured, by their actions, were proffering their expertise.
It recognized another relevant factor for courts to consider is the degree of control the
agent asserted in the relationship; if the agent selected the policy for the client then he or
she has created an expectation of reliance in the agent’s expertise in meeting the client’s
specific needs.
25
Additionally, we note the phrase “holding out” outside the context of
insurance cases has multiple meanings. The dictionary offers the following definitions:
(1) “to present as something realizable,” (2) “proffer” and (3) “to represent to be.”
( [as of Aug. 4, 2020]).
Estate/paternity cases, often consider whether a father “openly holds out” the child as his
natural child. (See Estate of Burden (2007) 146 Cal.App.4th 1021, 1028.) These cases
agree the phrase “holds out” is synonymous with the term “acknowledge,” which is
commonly defined as “‘“[T]o show by word or act that one has knowledge of and agrees
to (a fact or truth) . . . [or] concede to be real or true . . . [or] admit.”’” (Id. at p. 1029.)
Such far-reaching definitions align with the Williams multi-factor approach
as well as public policy. As our society has evolved, the insurance industry has become
more sophisticated and developed highly specialized policies, such as insuring body
3
parts, e.g., Lloyd’s insured actress America Ferrera’s smile for $10 million. There are
countless industries that require specialized insurance coverage, and to meet these ever-
changing needs, agents/brokers have developed expertise and skill sets tailored to their
particular specialty. While general insurance brokers should continue to benefit from the
public policy of protecting them from becoming “‘a blanket insurer for his principal’”
(Jones, supra, 189 Cal.App.3d at p. 956), the same cannot be said for this emerging
group of highly specialized insurance brokers/agents. In light of all the above, we
conclude evidence of specialization at a minimum creates a presumption the agent/broker
anticipates their clients will rely on their acknowledged expertise and supports courts
imposing an extended duty.
3
[as of Aug. 4, 2020].
26
E. Analysis
As the moving party, UPS Capital had the initial burden to make a prima
facie showing there was no triable issue of material fact regarding whether it owed
Murray a heightened duty of care. It asserted the “undisputed communications” did not
give rise to a special duty because the “onus was on Murray to tell UPS Capital what he
needed.” It stated an agent’s general duty of care would not include advising Murray
about the adequacy of coverage. Like the trial court, we conclude UPS Capital carried its
burden of production and the burden shifted to Murray. (Casey, supra, 206 Cal.App.4th
at p. 1228.)
We conclude Murray satisfied his burden. While UPS Capital’s evidence
adequately refuted application of Exception B (applicable when there is a
request/inquiry), Murray’s evidence raised a triable issue of material fact regarding
application of Exception C.
Murray relied upon the following evidence to support his argument there
was a triable issue of material fact regarding whether UPS Capital held itself out as
having expertise in marine inland insurance. First, UPS Capital only offered one type of
policy to one-time shippers, which had limited coverage depending on the type of goods
being shipped (All-Risk or FPA provisions). Second, the policy was specifically
endorsed to cover domestic inland shipments by truck. Third, USP Capital was a
subsidiary of UPS, a shipping company. Fourth, in addition to being a licensed insurance
broker in 50 states, UPS Capital acted as the agent for one insurance company, offering
only Tokio’s versions of inland marine insurance policy.
Fifth, UPS Capital offered UPS shippers its one “house” policy that was
anything but understandable, especially to a one-time customer unfamiliar with marine
transport insurance. The crucial provision explaining coverage is contained in a single,
27
4
lengthy, 95-word sentence. While the clause used ordinary sounding words, the scope
of coverage is impossible to decipher. Phrases like “Warranted free from Particular
Average” and “discharge of cargo at port of distress” are abstruse and require an
unexperienced reader to guess at the meaning. Moreover, the policy inexplicably
provided coverage for “any loss or damage” attributed to “conveyance with any external
substance (ice included) other than water . . . . .” (We are unsure, but we read this to
mean loss caused by the solid state of water was covered, yet damage caused by the
liquid or gas state of water were not.) In any event, UPS Capital offered its customers
only one marine inland policy (with two types of limited coverage), both of which plainly
required some level of expertise to fully understand.
Murray presented additional evidence from which the trier of fact could
reasonably infer UPS Capital was a highly specialized broker holding itself out as having
expertise in inland marine insurance. As described in Murray’s declaration, a UPS agent
recommended he call UPS Capital to secure the necessary insurance for his shipment of
used computer equipment. UPS’s referral suggested UPS Capital was the industry’s
acknowledged “go-to” broker for inland marine shipping needs. UPS did not offer
Murray a list of possible insurance brokers to choose from, suggesting only UPS Capital
possessed the expertise to assist Murray with purchasing the correct policy for his UPS
shipment.
Furthermore, UPS Capital selected the policy for Murray. After Murray
contacted UPS Capital, an agent provided him with a two-page application/payment
4
The FPA provision stated the following: “Warranted free from Particular
Average unless the vessel or craft be stranded, sunk or burnt, but notwithstanding this
warranty Underwriters are to pay any loss or damage to the interest insured which may
reasonably be attributed to fire, collision or contact of the vessel and/or conveyance with
any external substance (ice included) other than water, or to discharge of cargo at port of
distress; and also to pay the insured value of any merchandise and/or goods jettisoned
and/or washed or lost overboard, and the risks of theft of or non-delivery of an entire
shipping package.”
28
form, having the universally recognized UPS logo in the top right-hand corner. The first
line simply stated the application was for “House Policy Coverage,” next to the UPS
logo, without any further explanation as to the type of policy. The rest of the application
required Murray to provide basic contact information, a description of the type of goods,
and specifications regarding how the shipment was packaged. Thus, the relationship was
unlike the customers described in Jones and Fitzpatrick, in which the individual
purchasing a general policy knows better than the agent about the risks of loss and the
insured asset. In addition, above the signature line was the following disclaimer: “The
carrier will rely on the representations provided by you in, and in connection with, this
application when making decisions regarding any policy we may issue.” A jury could
reasonably infer the application was created by a specialty broker having expertise in
selecting appropriate policies for their clients. Further evidence UPS Capital was holding
itself out as having expertise in this niche market was its e-mail to Murray advising him
to leave “any ‘Declared Value’ fields blank” on the UPS forms and to “not opt for
additional package or freight liability coverage when shipping with UPS insurance.”
(Underline omitted.) UPS Capital knowledge and advice about UPS’s shipping forms
and whether it was necessary to purchase additional coverage in addition to its Tokio
policy are additional factors suggesting it was holding itself out as having expertise in
inland marine shipping insurance.
Looking at all of Murray’s evidence, we conclude he met his burden
opposing the motion for summary judgment. “[L]iberally construing [Murray’s]
evidentiary submission while strictly scrutinizing [UPS Capital’s] own showing and
resolving any evidentiary doubts or ambiguities in [Murray’s] favor” (Saelzler, supra,25 Cal.4th at p. 768), we conclude the evidence could allow a reasonable trier of fact to
find Exception C applicable. Accordingly, the case must be remanded to permit a jury to
resolve the triable issue of material fact as to whether UPS Capital was holding itself out
29
as having expertise in a specialized area of insurance, and therefore, assumed a
heightened duty of care.
DISPOSITION
We reverse the judgment and remanded the matter for further proceedings.
Appellant shall recover his costs on appeal.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
GOETHALS, J.
30