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Fink v. Brown & Brown Program Insurance Services Inc.

United States District Court, D. Arizona

April 11, 2018

Edward Fink, Plaintiff,
v.
Brown & Brown Program Insurance Services Incorporated, Defendant.

          ORDER

          Douglas L. Rayes United States District Judge

         At issue is Defendant Brown & Brown Program Insurance Services, Inc.'s motion to dismiss, which is fully briefed. (Docs. 9, 11, 12.) For the following reasons, the motion is denied.[1]

         I. Background

         On August 21, 2013, Plaintiff Edward Fink was injured in an accident caused by non-party Cole Cantreel's negligence. (Doc. 1-1 at 8.) Cantreel was underinsured to pay Plaintiff's damages, and Plaintiff's own underinsured motorist policy also was insufficient. (Id.)

         Before the accident, Plaintiff obtained insurance coverage from non-party James LaVerdi, an insurance salesman for non-party All Insurance, LLC, which was owned and operated by non-party Charles Fritsinger. (Id. at 6-8.) Plaintiff claims he requested uninsured and underinsured motorist coverage equal to his liability coverage of two million dollars, but LaVerdi did not procure such coverage. (Id. at 7.)

         On August 10, 2015, Plaintiff sued Fritsinger and other defendants for negligence. (Id. at 9.) He sought damages in the amount of the underinsured motorist coverage he would have had but for Fritsinger's negligence in adequately training, supervising, or instructing LaVerdi. (Id. at 8-9.)

         Fritsinger had purchased an error and omissions (“E&O”) policy from Defendant, effective December 2012 through December 2013, and renewed the policy through December 2014. (Id. at 9.) Defendant, however, did not recommend or address the need for retroactive coverage when Fritsinger purchased the policy, nor did Defendant recommend or address the need for tail coverage when Fritsinger cancelled his E&O policy in October 2014. (Id. at 10.) Fritsinger consequently did not have E&O coverage to defend against Plaintiff's claim because his policy was effective after the date Plaintiff procured his policy, and Fritsinger cancelled his E&O policy prior to the date Plaintiff filed the initial lawsuit. (Id. at 9.) Fritsinger therefore agreed to assign his right to pursue a professional negligence claim against Defendant to Plaintiff. (Id. at 10.)

         Plaintiff, standing in Fritsinger's shoes, filed this professional negligence action against Defendant in Arizona state court on September 15, 2017. The complaint alleges that Defendant negligently failed to “explain the need for or recommend” retroactive or tail coverage when Fritsinger purchased and cancelled his E&O policy. (Id. at 10-11.) Defendant removed the action pursuant to this Court's diversity jurisdiction, and now moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docs. 1, 9.)

         II. Legal Standard

         A successful Rule 12(b)(6) motion must show that the complaint lacks a cognizable legal theory or fails to allege facts sufficient to support such a theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a cognizable legal theory will survive a motion to dismiss only where it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Although the court must take “the well-pled factual allegations in the complaint as true, [it is] ‘not bound to accept as true a legal conclusion couched as a factual allegation.'” Id. (quoting Twombly, 550 U.S. at 555).

         III. Discussion

         Defendant asserts that insurance brokers do not have a duty “to advise insureds about the adequacy or appropriateness of the insurance coverage they purchase, or to inform them about optional coverage that might be available.” (Doc. 9 at 4 (quoting BNCCORP, Inc. v. HUB Int'l Ltd., 400 P.3d 157, 166 (Ariz.Ct.App. 2017)). Instead, Defendant contends that, as a matter of law, insurance brokers need only provide the insurance coverage that the client requests. (Id.) Because Plaintiff's complaint at most alleges that Defendant failed to recommend additional coverage, Defendant argues that Plaintiff has not pled facts that establish Defendant breached its duty of care under Arizona law.

         Defendant's argument rests entirely on the Arizona Court of Appeals' description of the applicable duty in BNCCORP. Plaintiff asserts that, in relying on BNCCORP, Defendant improperly conflates duty and breach. (Doc. 11 at 1, 5.) Specifically, in Arizona a licensed insurance agent owes his or her client a duty “to exercise reasonable care, skill and diligence in carrying out the agent's duties in procuring insurance.” Darner Motor Sales, Inc. v. Universal Underwriters Ins. Co., 682 P.2d 388, 402 (Ariz. 1984). Plaintiff asserts that whether an insurance agent must explain the need for or recommend retroactive or tail coverage in order to satisfy this duty is a question of fact that cannot be resolved on a motion to dismiss. The Court agrees.

         To establish negligence, Plaintiff must prove: (1) Defendant had a duty to conform to a certain standard of care; (2) Defendant breached that standard of care; (3) a causal connection between Defendant's conduct and the resulting injury; and (4) actual damages. Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). “The first element, whether a duty exists, is a matter of law for the court to ...


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