Cosper v. Farmers Insurance Co.
2013 OK CIV APP 78
Okla. Civ. App.2013Background
- Cospers sued their agent Ott and Farmers for issuing a homeowners policy with replacement cost exceeding actual cash value, causing higher premiums.
- Statutory remedy: 86 O.S.2011 § 4804 requires fire loss and premium reimbursement; plaintiffs did not suffer a fire loss and do not claim under § 4804.
- Trial court dismissed; defendants moved to dismiss; standard: cannot be without doubt that relief is possible; review de novo.
- Plaintiffs asserted multiple common-law theories (negligence, misrepresentation, constructive fraud, fiduciary duty) based on alleged duties to procure appropriate coverage and inform about options.
- Court held § 4804 is exclusive where its conditions exist; since no fire loss, common-law theories fail and petition insufficient to state a cognizable claim.
- Conclusion: trial court’s dismissal affirmed; § 4804 exclusive remedy in this context.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is § 4804 the exclusive remedy for over-insurance claims? | Cospers rely on the statutory remedy; common-law claims are viable. | § 4804 provides the exclusive remedy; no fire loss means § 4804 not triggered. | Yes; § 4804 is exclusive; not applicable here. |
| Did defendants owe any common-law duties (negligence, misrepresentation, fiduciary) to procure or advise coverage? | Cospers allege duty to procure appropriate coverage and inform options. | Insurers/agents owe no such general duty to advise or ensure adequacy. | No; no duty found to support those claims. |
| Can constructive fraud or fiduciary-duty claims survive without a duty under negligence/misrepresentation? | Constructive fraud and fiduciary duty applicable due to special relationship. | No breach of duty without underlying negligence/misrepresentation duty. | Constructive fraud and fiduciary claims fail without an independent duty. |
Key Cases Cited
- Swickey v. Silvey Companies, 979 P.2d 266 (Okla. Civ. App. 1999) (no general duty to advise insured on coverage)
- Rotan v. Farmers Ins. Group of Companies, 83 P.3d 894 (Okla. Civ. App. 2004) (no duty to advise or procure adequate coverage)
- Silver v. Slusher, 770 P.2d 882 (Okla. 1988) (insurer relationship at arms' length; no statutory duty to explain UIM coverage)
- Scoufos v. State Farm Fire and Casualty Co., 41 P.3d 366 (Okla. 2001) (statutory intent/conditions critical when no common-law right exists)
- Darrow v. Integris Health, Inc., 176 P.3d 1204 (Okla. 2008) (pleading sufficiency; may plead entitlement to relief without identifying theory)
- Rogers v. Meiser, 68 P.3d 967 (Okla. 2003) (statutory remedy can bar common-law relief when rights created by statute)
- Patel v. OMH Medical Center, Inc., 987 P.2d 1185 (Okla. 1999) (constructive fraud requires breach of legal/equitable duty)