Wilks v. Manobianco
330 P.3d 1003
Ariz. Ct. App.2014Background
- In 2001–2004 Lesley Wilks dealt with John Manobianco Insurance Agency (the Agency) to obtain “full coverage” auto insurance; she asked for the same coverages she previously had (which included UIM).
- The Agency told her it would provide the same coverage, handed her DOI-approved selection/rejection form for UM/UIM, which she signed without reading; the form selected UM but not UIM.
- State Farm issued the policy (procured by the Agency) providing UM but not UIM; in 2008 an underinsured driver hit Lesley and State Farm denied UIM benefits because she had signed the DOI form.
- The Wilkses sued the Agency for professional negligence for failing to procure UIM coverage they allege was requested and promised; the superior court granted summary judgment for the Agency, finding compliance with A.R.S. § 20-259.01(B).
- On appeal the court reviewed de novo and found genuine disputed facts whether the Agency exercised reasonable care in procuring the requested coverage and held the statute does not bar the negligence claim against the agent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether agent’s compliance with A.R.S. § 20-259.01(B) bars negligence claim | Wilks: statute protects insurers only; agent can be liable for failing to procure requested UIM | Agency: signed DOI form means statutory offer was made and forecloses claim | Statute does not bar this negligence claim; genuine fact issues remain |
| Whether agent breached duty to procure requested coverage | Wilks: agent promised same coverage and failed to verify prior policy; expert says agent must confirm prior coverage | Agency: Wilks negligently signed form without reading it, relieving agent | Fact question for trier of fact on breach and insured’s reasonable reliance; summary judgment improper |
| Whether signing DOI form as matter of law precludes claim | Wilks: reliance on agent’s promise can be reasonable; failure to read is a fact issue | Agency: form rejection of UIM is dispositive | Signing without reading does not defeat negligence claim as a matter of law |
| Whether A.R.S. § 20-259.01(B) extends litigation immunity to agents | Wilks: statute applies to insurers only, not agents | Agency: statute’s validation of DOI form should protect agents too | Court: statute addresses insurers; even if construed for agents, it wouldn’t immunize agent for failing to procure requested coverage |
Key Cases Cited
- Ballesteros v. Am. Standard Ins. Co. of Wis., 226 Ariz. 345, 248 P.3d 193 (Ariz. 2011) (holding insurer’s use of DOI form satisfies statutory offer requirement and limits after-the-fact claims about offer)
- Darner Motor Sales, Inc. v. Universal Underwriters Ins. Co., 140 Ariz. 383, 682 P.2d 388 (Ariz. 1984) (insurance agent owes insured duty to exercise reasonable care in procuring insurance)
- Millers Nat’l Ins. Co. v. Taylor Freeman Ins. Agency, 161 Ariz. 490, 779 P.2d 365 (Ariz. Ct. App. 1989) (agent acting for insurer must comply with insurer’s statutory duties and may be liable to insurer for failure)
- Gipson v. Kasey, 214 Ariz. 141, 150 P.3d 228 (Ariz. 2007) (breach of duty is typically a question for the jury)
- National Securities, Inc. v. Johnson, 14 Ariz. App. 31, 480 P.2d 368 (App. 1971) (distinguishing insurer from agent for purposes of who "makes" insurance)
- Newman v. Cornerstone Nat’l Ins. Co., 234 Ariz. 377, 322 P.3d 194 (Ariz. Ct. App. 2014) (standard for viewing facts and inferences on summary judgment against the movant)