Lead Opinion
This case requires us to determine whether a life insurance agent owes a duty of care to the intended beneficiary of a life insurance policy. Additionally, we must decide whether a life insurance agent can be liable for negligent misrepresentation when he provides information to the insured and the intended beneficiary regarding the beneficiary designation listed on the life insurance policy. If we determine that an intended beneficiary is owed a duty of care and that a life insurance agent providing information regarding the identity of a beneficiary is a proper defendant in a negligent misrepresentation action, then we must determine whether there is a genuine issue of material fact that would preclude summary judgment. For the reasons set forth below, we find that a life insurance agent owes a duty of care to an intended beneficiary of a life insurance policy and that a life insurance agent can be liable for negligent misrepresentation. Since we also determine that genuine issues of material fact exist in this case, summary judgment should not have been granted.
I. Factual Background and Proceedings.
Pursuant to a stipulation and order entered in 1989, Thomas Pitts (Tom) became responsible for child support payments for the benefit of his daughter, Jamie Pitts, born April 28, 1987. As part of his support obligation, Tom was required to maintain $35,000 of life insurance payable to his daughter for as long as his child support obligation continued. Unless the child was
In 1993, Tom and the plaintiff, Michele Pitts (Michele), were married. That same year, they met with Donald Schiffer, an agent for Farm Bureau Life Insurance Company (Farm Bureau), to discuss life insurance. Tom and Michele were interested in purchasing a life insurance policy that would satisfy Tom’s child support obligation and provide a benefit to Michele if she were to survive Tom. Tom purchased a life insurance policy from Farm Bureau, and on August 30, 1993, Tom signed a beneficiary designation listing Tom’s daughter as the primary beneficiary for the first $50,000 in proceeds and listing Michele as the beneficiary of the “balance of [the] proceeds, if any.” On December 28, 1995, Tom completed and filed a new beneficiary designation form. After the change, Tom’s daughter was the primary beneficiary of the first $35,000 of life insurance proceeds, and the balance was to be paid to Michele if she survived Tom.
According to Michele, shortly after Tom’s support obligation ended in April 2005, Tom asked Schiffer to change the beneficiary designation on the life insurance policy so that his daughter would no longer be the primary beneficiary of the first $35,000 of insurance proceeds. Michele “believe[d] Tom filled out paperwork to complete this change, but [she did] not know what he did with the paperwork.” Michele claims that on separate occasions Schiffer told her and Tom that Tom’s daughter was no longer listed as a beneficiary under the policy and that Michele was now the sole beneficiary. These exchanges occurred in person and over the telephone.
After Tom passed away in November 2007, Michele went to Schiffer’s office to fill out the paperwork needed to claim the proceeds of the life insurance policy. Schiffer allegedly told Michele, in the presence of her parents, that she would be receiving the full amount of Tom’s life insurance proceeds — about $108,000. While she was in the office, Schiffer’s telephone rang, and she heard him say, “Are you sure?” and “Tom and I always talked about percentages for the kids.” After he hung up the telephone, Schiffer informed Michele that Tom’s daughter was still the primary beneficiary for the first $35,000 in insurance proceeds and as a result, Michele would only receive about $74,000.
On November 25, 2009, Michele filed suit against Schiffer and Farm Bureau.
The district court found that “[i]t [was] undisputed that Mr. Pitts did not execute a written request to make Plaintiff the primary beneficiary” and therefore Schiffer’s failure to remove Tom’s daughter as a beneficiary “was not a product of negligence, but rather resulted from his lack of authority to remove [her] as the primary beneficiary without Thomas Pitts’ written request.” The district court then granted Farm Bureau’s motion for summary judgment in its entirety and dismissed the case.
Pursuant to Iowa Rule of Civil Procedure 1.904(2), Michele filed a motion to enlarge the findings of fact and conclusions of law. Michele claimed that as the intended beneficiary of the policy, Schiffer owed her a duty of care. Michele also claimed there were disputed issues of material fact that precluded entry of summary • judgment. Specifically, Michele claimed that Schiffer told her, her husband, and her parents that she was the sole beneficiary on the policy. Based on these statements, Michele claimed a jury could reasonably find in her favor on the negligence and negligent misrepresentation claims. The district court denied the motion, and Michele appealed. We transferred the case to the court of appeals, which affirmed the district court. Michele sought further review, which we granted.
II. Standard of Review.
The district court granted Farm Bureau’s motion for summary judgment. “We review a district court’s grant of a motion for summary judgment for errors of law.” Seneca Waste Solutions, Inc. v. Sheaffer Mfg. Co.,
“if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Id. at 411 (quoting Iowa R. Civ. P. 1.981(3)). In other word's, summary judgment is appropriate “if the record reveals a conflict only concerns the legal consequences of undisputed facts.” City of Cedar Rapids v. James Props., Inc.,
III. The District Court’s Ruling.
The district court held Tom’s oral statements were insufficient to impose a duty-on Schiffer to change the beneficiary of the policy. Specifically, the district court stated,
It is undisputed that Mr. Pitts did not execute a written request to make Plaintiff the primary beneficiary. Thomas Pitts knew the procedures that he must follow to make Plaintiff the sole beneficiary, as he had previously changed his beneficiary designation under those terms on two separate occasions. Thus Defendant Schiffer’s failure to act was not a product of negligence, but rather resulted from his lack of authority to remove [Tom’s daughter] as the primary beneficiary without Thomas Pitts’ written request.
The district court then granted Farm Bureau’s motion for summary judgment and dismissed the entire case.
The district court erred when it granted summary judgment on all of plaintiffs claims. Michele was not claiming that Tom followed the proper procedures and that the beneficiary had actually been changed. She was claiming that, despite the beneficiary designation, Tom intended her to be the sole beneficiary of his policy. According to her petition, Schiffer’s negligence and negligent misrepresentations led to Tom’s daughter remaining as the primary beneficiary on a portion of the proceeds of Tom’s life insurance at the time of his death, which caused her to lose $35,000 in life insurance proceeds. The question presented by this case is not as simple as whether Tom’s oral expression of his desire to change the beneficiary on his policy was effective or whether it gave Schiffer the authority to change the beneficiary. The questions are whether Schif-fer was negligent in responding to Tom’s oral request, if made, and whether Schiffer made negligent misrepresentations after allegedly receiving Tom’s oral request.
We therefore reverse the district court’s grant of summary judgment on the ground stated in its initial judgment. If we reverse a district court’s decision to grant summary judgment on one ground, however, we may still affirm the ruling on alternative grounds raised but not ruled on below and subsequently urged on appeal. Kern,
IV. Michele’s Negligence Claim.
Michele alleged that Schiffer owed both her and Tom a duty to use reasonable professional skill. According to Michele, Schiffer breached that duty by “failing to take action to change the beneficiary designation upon Thomas J. Pitts’s request,” “failing to deliver the necessary paperwork to Thomas J. Pitts to effectuate a change in the beneficiary designation after [his] request to make a change,” and “failing to display a degree of skill reasonably or ordinarily necessary in performing as an agent in the insurance business.” These failures resulted in Michele not being designated as the primary beneficiary for all of the proceeds of Tom’s policy. ■'
A. Did Schiffer Owe Michele a Duty of Care? Farm Bureau claimed that Michele was not the beneficiary, that Schiffer only owed a duty to Tom, and that he did not owe a duty to Michele since no
Generally, “[a]n actionable claim of negligence requires the existence of a duty to conform to a standard of conduct to protect others, a failure to conform to that standard, proximate cause, and damages.” Thompson v. Kaczinski,
In this case, any duty that Schiffer owed to Tom or Michele would arise out of their agency relationship as insurance agent, insured and intended beneficiary. See Langwith,
The scope of the duties an insurance agent owes his client has recently been the subject of both litigation and legislation. In Sandbulte v. Farm Bureau Mutual Insurance Co.,
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. Some of the circumstances that may be considered by the fact finder in determining the undertaking of the insurance agent include the nature and content of the discussions between the agent and the client; the prior dealings of the parties, if any; the knowledge and sophistication of the client; whether the agent holds himself out as an insurance specialist, consultant, or counselor; and whether the agent receives compensation for additional or specialized services.
Id. at 222 (citation omitted).
The legislature responded by amending Iowa Code section 522B.11.2011 Iowa Acts ch. 70, § 45. The new act “declares that the holding of Langwith is abrogated to the extent that it overrules Sandbulte and imposes higher or greater duties and responsibilities on insurance producers than those set forth in Sandbulte.” Id. (emphasis added). The new subsection also states that “[ujnless 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.” Id. (emphasis added).
These cases and the statute address what duties an insurance agent owes the insured, not who the agent can be liable to when those duties are breached.
the use of such skill as is required to accomplish the object of his employment. If he fail[ed] to exercise reasonable care, diligence, and judgment in this task, he is liable to his principal for any loss or damage occasioned thereby.
Collegiate Mfg.,
Michele claims that as the intended beneficiary of Tom’s life insurance policy, Schiffer owed her a duty as well. We acknowledge and dismiss Farm Bureau’s claim that because Michele was not designated as the primary beneficiary for the first $35,000 in proceeds, she cannot show that she was the person Tom intended to be the beneficiary of the first $35,000 in proceeds. Michele is not listed as the primary beneficiary of the first $35,000 in proceeds. This is evidence of Tom’s intent, but this fact, in and of itself, is not dispositive. The fact that Michele is not named as the primary beneficiary only establishes that she is not the designated beneficiary and that the necessary steps were not taken to change the beneficiary from Tom’s daughter to Michele. The fact that Michele is not actually designated as the beneficiary does not establish why Michele is not the beneficiary, nor does it establish that Tom did not intend Michele to be the beneficiary. Michele claims this was precisely what Tom intended, but his intent was frustrated by Schiffer’s negligence. Thus, cases such as Kubin v. Kubin,
We also note that despite Farm Bureau’s contention, Michele is not claiming that Schiffer owed her a duty based solely on her status as a family member of the deceased. Michele’s true claim is that when an insured intends for a particular person to be the beneficiary of a life insurance policy, and the insured expresses that desire to his or her life insurance agent, the agent procuring insurance for the insured owes the insured’s intended beneficiaries a duty of care to procure the insurance requested. We now address that claim.
Michele claims by analogy that Schreiner v. Scoville,
The “[district court found Eickholt’s devise to Schreiner had adeemed when her interest in the property was transformed from an interest in real property into an interest in personal property.” Id. Since there were no express bequests relating to
Schreiner filed suit, alleging that “Sco-ville was negligent in failing to properly advise Eickholt” and that “Scoville negligently failed to draft Eickholt’s testamentary instruments in a way that protected and fulfilled her true testamentary intent.” Id. Since Scoville and Schreiner did not have an attorney-client relationship, Sco-ville moved to dismiss for failure to state a claim, and the district court granted the motion. See id.
On review, we began by noting the longstanding rule that “absent special circumstances such as fraud or collusion, an attorney is liable for professional malpractice only to a client.” Id. (emphasis added). We stated,
This privity requirement flows from the Supreme Court case of National Savings Bank v. Ward, 100 U.S. (10 Otto) 195, 200, 203,25 L.Ed. 621 , 623, 624 (1880), and is premised upon two basic concerns. First, absent a requirement of privity, parties to a contract for legal services could easily lose control over their agreement. Second, imposing a duty to the general public upon lawyers would expose lawyers to a virtually unlimited potential for liability.
Id. (citation omitted). At the time, there was a trend towards allowing an intended beneficiary of a testamentary instrument to bring a claim “when the testamentary instruments themselves are rendered invalid in whole or in part as a direct result of attorney error.” Id. at 681-82. We noted the following justifications for altering the privity requirements in certain circumstances:
“[0]ne of the main purposes which the transaction between defendant and the testator intended to accomplish was to provide for the transfer of property .to plaintiffs; the damage to plaintiffs in the event of invalidity of the bequest was clearly foreseeable; it became certain, upon the death of the testator without change of the will, that plaintiffs would have received the intended benefits but for the asserted negligence of defendant; and if persons such as plaintiffs are not permitted to recover, for the loss resulting from negligence of. the draftsman, no one would be able to do so, ¡and the policy of preventing future harm would be impaired.”
Id. at 682 (quoting Lucas v. Hamm,
In light of these considerations, we concluded that “a lawyer owes a duty of care to the direct, intended, and specifically identifiable beneficiaries of the testator as expressed in the testator’s testamentary instruments.” Id. That limited group of plaintiffs would be permitted to bring a claim “only when as a direct result of the lawyer’s professional negligence the testator’s intent as expressed in the testamentary instruments is frustrated in whole or in part and the beneficiary’s interest in the estate is either lost, diminished, or unrealized.” Id. at 683. We specifically noted that “a beneficiary who is simply disappointed with what he or she received from the estate will have no cause of action against the testator’s lawyer.” Id.
Michele argues the relationship between an insured, an insurance agent, and the intended beneficiary of a life insurance policy is analogous to the relationship between a testator, an attorney, and the intended beneficiary of a testamentary instrument. This analogy has been accepted by other jurisdictions. See Jones v. Hart
In its resistance to the application for further review, Farm Bureau argues that the court of appeals was correct when it noted that subsequent opinions limited the scope of our holding in Schreiner. The court of appeals cited to Carr v. Bankers Trust Co.,
The dispute in Carr began when an investment advisor for the Iowa Trust misappropriated over $65 million in trust assets, which led to the removal of the trustees.
In determining whether summary judgment for the defendants was appropriate, we discussed the limitations on liability that were imposed in Schreiner and Hol-sapple. Id. at 906. We discussed the rationale of those eases, and we reaffirmed the principle that liability must be limited to those who were “specifically intended to benefit from the [transaction].” Id. We noted “[njothing in the present record shows that either [the custodian or the attorneys] could have foreseen the trustees’ reliance on their performance in their individual capacities.” Id. at 907. We held that without evidence that the defendants “could reasonably know or have foreseen that the individual trustees were relying on the performance of the custodial or legal services for the protection of their own jobs, finances, and reputations,” it was inappropriate to impose a duty to the plaintiffs on the defendants. Id. Summary judgment was therefore appropriate. Id. The holding in Carr does not address the duty a defendant owes to the intended beneficiary of a life insurance policy. Additionally, Michele is exactly the person Schiffer could reasonably know and foresee was relying on his professional performance for her protection. Therefore, Carr is not at odds with imposing a duty of care on Schiffer to Michele in this case.
Farm Bureau also argues that “public policy advises against the imposition of a duty in this situation.” They claim that recognizing that “a legal duty exists between an insurance agent and the family member of a policy owner would create the potential for sharp conflicts of interest whenever the policy owner’s express instruction contradicts the family member’s desire.” (Emphasis added.) In J.A.H. ex reí. R.M.H. v. Wadle & Associates,
We were also mindful of the potential “threat to the professional relationship between the testator and the lawyer” that might exist if “intended beneficiaries” were allowed to bring suits against attorneys. Schreiner,
Other jurisdictions have found “that an intended beneficiary can recover from another’s insurance agent if the intended beneficiary can prove that intent to benefit him, or her, was a direct purpose of the transaction between the insured and agent mid the other elements of negligence.” Parlette v. Parlette,
[t]he critical element in establishing a duty [to a third party who claims to have been damaged by an agent’s failure to procure insurance] is the foreseeability of harm to a potential plaintiff. Liability will not lie against an [insurance agent] if a third-party’s injury or loss was not foreseeable.
1 Jeffrey E. Thomas & Francis J. Mootz, New Appleman on Insurance Law Library Edition § 2.07[1], at 2-84 (2011) [hereinafter Appleman ] (footnotes omitted).
One court that has faced this issue found it unnecessary to impose a duty on insurance agents to intended beneficiaries. In Mims v. Western-Southern Agency, Inc.,
[t]he threshold inquiry under either a negligence or contract theory is essentially identical: “The question herein is not [a] dispute between the contracting parties ... as to the terms of the contract, but one as to whom the insured intended to make a gift by way of insuring his life for same.”
Id. (quoting Bosse v. Basse,
Iowa’s “substantial compliance” doctrine has been summarized as follows:
It is apparently the law in Iowa that where it appears that an insured clearly intended to change the beneficiary named in a policy of insurance permitting such a change, and that prior to his death he gave written notice to. the insurer of the change intended, the law will give effect to the change although the insured has not complied with all of the formalities specified in the contract for effecting a change of beneficiary, provided his failure in that regard was excusable under all the circumstances. In other words, proof of clear intent, plus written notice to the insurer prior to death, appears to be enough, under Iowa law, to effect the desired change, where the failure to meet all the requirements is excusable.
Franck v. Equitable Life Ins. Co.,
In order to limit the potential liability of insurers, avoid conflicts of interests, and not interfere with the insured-insurer relationship, we will require a plaintiff to show that he or she was the “direct, intended, and specifically identifiable beneficiar[y]” of the policy as well as the other elements of negligence. Schreiner,
B. Was Summary Judgment Appropriate? Michele claims she was the intended beneficiary of the entire policy, including the first $35,000. Farm Bureau disputes this claim and states that Tom’s daughter was the intended beneficiary of the first $35,000 of the policy and that Michele was only the intended beneficiary of the balance of the proceeds. If Michele truly is the intended beneficiary of the entire policy, as she claims, then Schiffer owed her a duty of care with respect to the $35,000. If she cannot establish that fact, then Schiffer did not owe her a duty of care. See Jones,
Facts are disputed when reasonable minds could disagree on how these issues of fact should be resolved. Seneca Waste Solutions,
In her affidavit opposing Farm Bureau’s motion for summary judgment, Michele claims that in April 2005, shortly after his support obligation ended, “Tom asked Schiffer to change the beneficiary designation on his policy so that Jamie Pitts would no longer be the primary beneficiary of the first $35,000 in proceeds.” Michele believed Tom filled out the necessary paperwork to complete the change in beneficiary, but she does not know what he did with it. Michele claims that
in 2006 Tom came home from a meeting with Schiffer and told [her] that [she] would receive all of the proceeds from [Tom’s] life insurance policy when he passed away.... Tom told [Michele] that he was sure because Schiffer told him that [Michele] was now the sole beneficiary.
Michele also claims that two weeks after Schiffer met with Tom, Schiffer confirmed
In an interrogatory, Michele asked Schiffer what procedure he normally follows when an insured makes an oral request to change a beneficiary. Schiffer responded,
If an insured orally requests a change in his or her life insurance beneficiary designation, I inform the insured that such a change may only be made in writing by the owner of the policy. If the insured desires to go forward with the change, I work with the insured to complete the paperwork necessary to make the change, and submit the written request to Farm Bureau’s home offices.
In its reply brief in support of its motion for summary judgment, Farm Bureau claimed that the statements Tom made to Michele regarding his beneficiary designation are inadmissible hearsay, or a violation of the parol evidence rule, and therefore the statements could not be considered when ruling on a motion for summary judgment. One day before the district court granted summary judgment and dismissed the case, Farm Bureau filed a motion in limine to exclude any statements made by Tom on the ground that they are inadmissible hearsay.
We start by examining the applicability of the parol evidence rule to Michele’s negligence claim. “The parol evidence rule forbids use of extrinsic evidence to vary, add to, or subtract from a written agreement.” I.G.L. Racquet Club v. Midstates Builders, Inc.,
Again, Michele is not claiming that Tom successfully changed the beneficiary on his life insurance policy by complying, or substantially complying, with its terms. She is claiming that Tom intended her to be the primary beneficiary of the entire policy, and Schiffer’s negligence prevented that from occurring. Tom’s intent and belief about who was named as the primary beneficiary on his policy are both relevant and material considerations. With this use of the statements in mind, we now consider Farm Bureau’s claim that some of the evidence contained in Michele’s affidavit constitute inadmissible hearsay.
The first statements Farm Bureau claims are inadmissible hearsay are Tom’s alleged statement to Schiffer at a meeting in 1993 “that the child support obligation was only to be secured by life insurance until [Tom’s daughter] turned 18” and that Tom asked Schiffer to remove his daughter as the primary beneficiary of the entire policy once his support obligation terminated because he wanted Michele to be the sole beneficiary of the proceeds. Statements of the declarant’s intent are an exception to the hearsay rule. Iowa R. Evid. 5.803(3). Under rule 5.803(3), statements of a declarant’s intent to act are admissible “to prove declarant engaged in the intended action.” 7 Laurie Kratky Dore, Iowa Practice Series, Evidence § 5.803:3, at 836-37 (2011) (citing state and federal cases applying the doctrine established in Mutual Life Ins. Co. v. Hillmon,
Schiffer’s statement to Tom would be admissions of a party opponent and would be excluded from the hearsay rule under rule 5.801(d)(2). However, Tom relayed those statements to Michele, interposing another layer of hearsay. In order to be admissible, the statements Tom made to Michele must fall within another exemption or exception to the hearsay rule. Id. r. 5.805. The only possible exception that applies is the exception found in rule 5.803(3), which makes admissible
[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declar-ant’s will.
Michele acknowledges that Tom’s statement does not relate to the terms of a will. However, she argues that it does relate to the designation of a beneficiary of a life insurance policy and that the scope of rule 5.803(3) should be extended to include statements like Tom’s. See Primerica Life Ins. Co. v. Watson,
This interpretation runs counter to the express language of rule 5.803(3), which, by its terms, only admits “a statement of memory or belief to prove the fact remembered or believed [if] it relates to the execution, revocation, identification or terms of declarant’s will.” When the language of the rule is clear, we need not search for meaning beyond the words used. We therefore decline to adopt Arkansas’s expanded interpretation of its version of rule 5.803(3). Therefore, any statements that Schiffer may have made to Tom that Tom then relayed to Michele are inadmissible hearsay.
Even without Tom’s statement to Michele that, according to Schiffer, she was now the primary beneficiary of the entire policy, there is still enough evidence to create a factual dispute over who Tom’s intended (not actual) beneficiary was and whether he expressed that intent to Schif-fer. There are also statements from Schif-fer to Michele herself where he stated that Michele was now the sole beneficiary. The alleged admissions by Schiffer would also be admissible.
As noted above, Michele must also point to evidence in the written instrument itself that identifies her as the intended beneficiary of the entire policy. According to the last written beneficiary designation, Michele was the primary beneficiary of all but $35,000 in proceeds, which were payable to Tom’s daughter as required by a court order. In other words, Tom’s intent, expressed in the policy itself, was that Michele would receive all policy proceeds except for those that were required by court order to be payable to Tom’s daughter. In 2005, when Tom’s child support obligation ended, Tom was no longer required to maintain any life insurance naming his daughter as the beneficiary. Thus the policy provides evidence that Tom intended for all proceeds that were not required to satisfy his child support obligation to be paid to Michele.
Having established that Michele has produced evidence from the written instrument itself that she was the intended beneficiary, we now turn to the question of whether summary judgment was appropriate.
A party is entitled to summary judgment when the record shows no genuine issue of material fact and that the mov*110 ing party is entitled to a judgment as a matter of law.... “In deciding whether there is a genuine issue of material fact, the court ... afford[s] the nonmoving party every legitimate inference the record will bear.”
Kern,
Assuming all of Michele’s factual allegations are true, it is reasonable to infer that Tom told Schiffer he wanted to change the beneficiary of his policy. It is also reasonable to infer that Schiffer responded as he indicated in his interrogatory and that he provided Tom with the paperwork necessary to change a beneficiary, the paperwork that Michele believed Tom filled out. Based on Sehiffer’s alleged statement to Michele, it is reasonable to infer that Schiffer believed that Tom had provided him with the paperwork necessary to make the change. If Tom provided Schiffer with the paperwork necessary to change his beneficiary designation, but the beneficiary designation was not changed, it is reasonable to infer that some negligence on Schiffer’s part led to Tom’s beneficiary designation remaining unchanged.
Michele and Schiffer dispute whether Tom intended to change the beneficiary of his policy and whether he requested to change the beneficiary of his policy. They dispute what representations Schiffer made to Michele regarding the status of the beneficiary designation. Depending on how these factual disputes are resolved it might be reasonable to infer that Schiffer’s negligence was the reason that Michele was not the primary beneficiary of the entire policy. Accordingly, there were disputed issues of material fact and summary judgment on this claim was inappropriate.
V. Michele’s Negligent Misrepresentation Claim.
Michele asserted a claim of negligent misrepresentation against Farm Bureau and Schiffer. Farm Bureau moved for summary judgment on this count, alleging “[t]he undisputed material facts establish that Plaintiffs negligent misrepresentation claim should also be dismissed because Plaintiff cannot prove, as a matter of law, that she was harmed in a transaction with a third party.” In its December 9, 2010 decision, the district court did not specifically address the negligent misrepresentation issue. Instead, after determining Schiffer’s failure to act was based on a lack of authority, the court stated “the matter is hereby dismissed.” One week later, Michele filed a motion to enlarge, claiming there were disputed facts that precluded summary judgment on Michele’s negligent misrepresentation claim. The motion was denied.
We will begin our discussion with a brief review of the tort of negligent misrepresentation. When a negligent misrepresentation results in personal injury or property damage, the claim is treated like any other negligence claim. Van Sickle Constr. Co. v. Wachovia Commercial Mortg., Inc.,
(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.
(3) The liability of one who is under a public duty to give the1 information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.
Restatement (Second) of Torts § 552, at 126-27 (1977).
Our past cases have held that only those who are “in the business of supplying information to others” can be liable for negligent misrepresentation. Meier v. Alfa-Laval, Inc.,
This narrowing of the universe of potential defendants liable for negligent misrepresentations promotes fairness by ensuring that those liable are only those who supply information in an advisory capacity and are “manifestly aware” of how the information will be used and “intend[ ] to supply it for that purpose.” The restriction also ensures that those liable are “in a position to weigh the use for the information against the magnitude and probability of the loss that might attend the use of the information if it is incorrect.”
Van Sickle,
When determining ' whether a person is in the business of supplying information to others, we consider several factors. We distinguish between relationships that are arm’s-length and adversarial and those that are advisory. Sain,
We have found accountants, appraisers, school guidance counselors and investment brokers all fall within this class of potential defendants. Sain,
A life insurance agent falls somewhere between these two groups. On the. one hand, an insurance agent, like a retailer, sells a .product to a customer. This is clearly an arm’s-length transaction — the type of relationship that cannot give rise to an action for negligent misrepresentation. Any information given to the prospective customer at this time would be incidental to the negotiations. At the time Schiffer sold the policy to Tom, their relationship was that of seller and buyer, a relationship that is. clearly arm’s-length and adversarial, as opposed to advisory, in nature. Farm Bureau states, “The only transaction at issue in this case is the purchase of the Policy from Schiffer.” If that were the case, then Schiffer would not be a proper defendant in a negligent misrepresentation action.
However, Michele does not claim that Schiffer made negligent misrepresentations when Tom purchased the policy in 1993. She claims that at some point in 2006, Schiffer told her that Tom’s daughter was no longer the primary beneficiary on the policy. At that point, Tom was already an insured. “[T]he relationship between an insured and an insurance agent is one of principal/agent.” Langwith,
Other jurisdictions have recognized that negligent misrepresentation actions can be brought against insurance intermediaries. 1 Appleman, § 2.05[2][d][i], at 2-33 (listing cases permitting the cause of action). Like Iowa, these jurisdictions apply the definition of negligent misrepresentation that is found in section 552 of the Restatement (Second) of Torts. See, e.g., Merrill v. William E. Ward Ins., 87 Ohio App.3d
These holdings are consistent with our rule limiting liability to those in the business of supplying information. When Schiffer allegedly advised Tom and Michele that Tom’s daughter was no longer the primary beneficiary on the policy, he was functioning as Tom’s agent. The advisory nature of the principal-agent relationship supports allowing a claim of negligent misrepresentation. See Sain,
We conclude Schiffer is among the class of defendants against whom an action for negligent misrepresentation may be brought. When Schiffer allegedly made the misrepresentations at issue in this case, he was acting as an insurance agent providing information regarding the identity of a beneficiary of a life insurance policy to both the insured and the intended beneficiary of the policy. The information was therefore provided “ ‘in the course of his business,. profession or employment.’ ” Id. at 690 (quoting Restatement (Second) of Torts, § 552, at 126). The information Schiffer provided was not given for his own benefit but was instead provided for the benefit of Michele and her husband. See Sain,
Even though Michele was not the policyholder, she is a proper plaintiff in an action against Schiffer. Liability for negligent misrepresentation is “limited to loss suffered ... by the person ... for whose benefit and guidance [the defendant] intended] to supply the information or
Schiffer and Michele dispute what representations Schiffer made to her. Michele’s affidavit alleges that she asked Schiffer whether Tom’s daughter was still the primary beneficiary under Tom’s policy and Schiffer told her that Tom’s daughter “was no longer a beneficiary under the policy.” In response to an interrogatory, Schiffer stated that while Michele may have answered the telephone from time to time when he called Tom, he could not recall any specific conversations he may have had with Michele subsequent to Tom purchasing the life insurance. There is, therefore, a genuine issue of material fact as to whether Schiffer told Michele that Tom’s daughter was no longer the primary beneficiary on the policy. This disputed fact is clearly material to the outcome of this case. Summary judgment is therefore inappropriate at this time. See Seneca, Waste Solutions,
VI. Respondeat Superior.
Pitts’s respondeat superior claim against Farm Bureau was dismissed along with the negligence and negligent misrepresentation claims. As long as Schiffer’s liability remains unclear, it is impossible to resolve this issue on summary judgment. Accordingly, the district court’s order dismissing this claim is reversed as well.
VII. Disposition.
The district court erred when it granted Farm Bureau’s motion for summary judgment and dismissed the case. There is a genuine issue of material fact in dispute as to whether Michele was the intended beneficiary of all the proceeds of Tom’s policy and whether Schiffer’s negligence led to Tom’s intent not being carried out. There is also a factual dispute over whether Schiffer made negligent misrepresentations to Michele. These disputes over material facts make summary judgment inappropriate at this time. Having found no alternative ground on which to affirm the district court’s grant of summary judgment, we reverse the decision of the district court, vacate the decision of the court of appeals, and remand the case for further proceedings.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.
Notes
. It is unclear if this beneficiary designation was effective as it does not show that it was recorded at the home office of Farm Bureau.
. From this point on, unless Schiffer’s individual actions are being discussed, "Farm Bureau” refers collectively to Schiffer and Farm Bureau.
.The original complaint also alleged a breach of fiduciary duty, which was dismissed in the district court’s order granting Farm Bureau's motion for summary judgment. Pitts has not appealed this ruling, and therefore we will not consider the alleged breach of fiduciary duty.
. Farm Bureau has not argued on appeal that the economic loss rule creates a bar to recovery in this case. The economic loss rule is based on “[t]he well-established general rule ... that a plaintiff who has suffered only economic loss due to another’s negligence has not been injured in a manner which is legally cognizable or compensable.” Neb. Innkeepers, Inc. v. Pittsburgh-Des Moines Corp.,
We have recently decided a case involving the application of the economic loss rule. Instead of ”delineat[ing] the precise contours of the economic loss rule in Iowa” we examined whether the case has "characteristics that bring it within the scope of the economic loss rule.” Annett Holdings,
There is another potential problem regarding the application of the economic loss rule in this case. We have recognized at least three qualifications to the economic loss rule: cases where the duty of care arises out of a principal-agent relationship, claims of negligent misrepresentation, and professional negligence claims against attorneys and accountants. Id. We have not held that these are the only qualifications to the rule, however. See id.; see also Van Sickle,
Whatever the merits, Farm Bureau has not raised the economic loss rule on appeal or before the district court. Our rule is that issues not argued on appeal are deemed waived. See State v. Seering,
. In Duffie v. Bankers’ Life Ass’n of Des Moines,
Duffie is not applicable to the case at bar. First, the insurer’s negligence in Duffie prevented the deceased from obtaining the policy he had applied for and paid for. Unlike in Duffie, Schiffer’s alleged negligence did not prevent Tom from obtaining an insurance policy. Thus, Tom’s estate has not suffered any damage as a result of Schiffer's alleged negligence. The absence of damages would preclude the estate from bringing a successful negligence action. Second, Duffie was decided decades before Schreiner, and if Duffie were decided today, the result might be different in light of that case. The widow in Duffie was named in the application.
We also note that in the North Western reporter, the plaintiff’s name is spelled "Duffy.” See Duffy,
. We take this opportunity to reiterate that "[b]ecause the duty analysis in this case is based on agency principles and involves economic loss, the duty analysis adopted by this court in Thompson v. Kaczinski,
. Farm Bureau has not argued that Schiffer’s statements to Michele would constitute inadmissible hearsay. Therefore, we will consider the statements Michele alleges Schiffer made to her when reviewing the motion for summary judgment.
. While this case concerns the existence of a duty, the concepts relating to duty that are discussed in the Restatement (Third) of Torts apply to those situations where tortious conduct causes physical and emotional harm, not economic loss. We will therefore continue to use the principles we have developed based on section 552 of the Restatement (Second) of Torts.
Dissenting Opinion
(dissenting).
I respectfully dissent. For the reasons stated herein, I would affirm the well-reasoned decision of the court of appeals.
I. The Majority Incorrectly Eliminates the Previous Legal Requirement that the Plaintiffs Status as Intended Beneficiary of the Asset Had to Appear in the Decedent’s Written Documentation.
The majority’s opinion is an unwarranted expansion, not an application, of existing Iowa law. In Schreiner v. Scoville, we held that an attorney who drafted a will leaving an interest in property to a beneficiary could be liable in negligence for failing to take additional steps to protect the beneficiary’s interest when the property was sold before the testator died.
We reaffirmed the same basic limitation in Holsapple v. McGrath,
an unrealized expectation of benefits must be shown; a plaintiff must show that the testator (or here, the grantor) attempted to put the donative wishes into effect and failed to do so only because of the intervening negligence of a lawyer.
Id.; see also Carr v. Bankers Trust Co.,
The majority changes that law. It does so by removing the limitation that the intent to provide for the beneficiary must have been “expressed in” the written instrument. See Holsapple,
The majority points out that Michele was the designated beneficiary for all but $35,000 of the life insurance proceeds. The majority goes on to emphasize that “the plaintiff must produce evidence from the written instrument itself that indicates the plaintiff is the intended beneficiary of
Allowing people to file suits alleging that someone who wasn’t their agent negligently failed to arrange for them to receive a benefit — without written proof they were supposed to receive that benefit — will lead to uncertainty and instability. We would be better off sticking to the Schreiner rule that if the intent expressed in the written instrument is fully implemented, no challenge by an alleged beneficiary will be allowed. Schreiner,
The only exception to that pattern cited by the majority is Parlette v. Parlette, a decision of Maryland’s intermediate appellate court.
The mother sued the father (her ex-spouse) for fraud and negligence, among other claims. Id. at 667-68. The court held that the negligence action could proceed to the jury. Id. at 670. Although Parlette did not involve written documentation showing that the mother was supposed to be the beneficiary, it has several distinctive facts. The agent was not disinterested but was in a position to receive
Meanwhile, there is a substantial body of law declining to allow “intended beneficiaries” to maintain negligence actions against life insurance agents. See, e.g., Jackson Nat’l Life Ins. Co. v. Cabrera,
If suits by “intended beneficiaries” are going to be allowed, there are good reasons to limit them to situations where documentary proof exists that the plaintiff was the intended beneficiary of the proceeds at issue. The insured is no longer around to speak to his or her own intent. All we know for certain is that the insured did not make a legally valid designation of the plaintiff as beneficiary. A documentary proof requirement, as we recognized in Schreiner and Holsapple, protects a legally binding document from being circumvented by an opportunistic claim that the decedent intended otherwise. If negligence law can be used without limitation to modify the beneficiaries set forth in a written instrument, then the instrument is drained of much of its legal force.
It makes sense for the life insurance company to require the change in beneficiary to be made in writing. This avoids competing claims to the same proceeds. It also avoids fraudulent claims. Allowing a negligence recovery without written documentation as to the proceeds at issue permits an end run around the contractual safeguard of requiring the change to be in writing. The result is to expose the insurer to potentially paying twice on the same death claim. Here, the daughter as the named beneficiary collects the $35,000 while another $35,000 must be paid to the widow as the “intended” beneficiary if she wins her negligence claim.
Moreover, while Farm Bureau and the agent, Schiffer, are separate parties in this case, many life insurance policies are sold by captive agents employed by the insurer. Could today’s majority holding apply equally to captive agents? Again, the negligence claim based on mere oral testimony eviscerates the otherwise enforceable contract requirement that changes to the beneficiary designation must be in writing.
Here, we do not really know whether Tom Pitts still wanted his daughter to get the $35,000 upon his death and never executed the written change form for that reason. He may have been mulling over the matter in his own mind or stalling on having a difficult discussion with his wife.
I also disagree with the majority’s view that there is no potential for conflicts of interest. See generally J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C.,
The majority dismisses this concern by stating that Michele is not asserting a duty based on her status as a family member but as an intended beneficiary, “a much more circumscribed group.” I fail to see how this eliminates the potential for conflict of interest.
II. The Economic Loss Rule Should Preclude the Existence of a Duty in This Case.
The majority’s ruling also carves out an unwarranted exception to the economic loss rule. “As a general proposition, the economic loss rule bars recovery in negligence when the plaintiff has suffered only economic loss.” Annett Holdings, Inc. v. Kum & Go, L.C.,
In Annett Holdings, we reiterated the “well-established general rule ... that a plaintiff who has suffered only economic loss due to another’s negligence has not been injured in a manner which is legally cognizable or compensable.” Id. at 503 (citation and internal quotation marks omitted). We further explained that the rule “is by no means limited to the situation where the plaintiff and the defendant are in direct contractual privity.” Id. at 504. “[T]he stranger economic loss rule” applies to cases where the plaintiff sues the defendant seeking recovery of pure economic losses suffered due to the defendant’s negligent performance of a contract with a third party. Id. (“In a complex society such as ours, economic reverberations travel quickly and widely, resulting in potentially limitless liability.”). We also noted three qualifications to the economic loss rule: (1) “actions asserting claims of professional negligence against attorneys and accountants”; (2) “negligent misrepresentation claims”; and (3) “when the duty of care arises out of a principal-agent relationship.” Id. Michele’s general negligence claim falls into none of these exceptions. She is not asserting a professional negligence claim, nor is she alleging that she was a principal to whom an agent breached a duty.
The economic loss rule recognizes that many events may have a ripple effect leading to financial consequences in our complex society and generally honors the allocation of those risks by contract. “Th[e] rule is partly intended to prevent ... the tortification of contract law.” Annett Holdings,
The unfortunate side effect of the majority’s ruling is to give a nonparty to a contract more rights than a party to the contract would have. Tom’s estate could not have sued Farm Bureau because he failed to execute and return a new beneficiary designation form. Farm Bureau honored its contract with Tom. Yet now a putative beneficiary can effectively modify those contractual obligations through the device of a tort suit.
The majority correctly notes that the duty analysis in Thompson v. Kaczinski,
I recognize that the majority’s holding appears to be limited to insurance agents. But there is no reason to deviate from the economic loss rule here.
III. The Majority’s Opinion Is Inconsistent with Recent Legislation.
As noted by the court of appeals, while this case was on appeal the General Assembly enacted the following legislation:
7. a. 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 v. Farm Bureau Mut. Ins. Co.,343 N.W.2d 457 (Iowa 1984).
b. The general assembly declares that the holding of Langwith v. Am. Nat’l Gen. Ins. Co., (No. 08-0778) [793 N.W.2d 215 ] (Iowa 2010) is abrogated to the extent that it overrules Sandbulte and imposes higher or greater duties and responsibilities on insurance producers than those set forth in Sandbulte.
2011 Iowa Acts ch. 70, § 45 (emphasis added) (amending Iowa Code § 522B.11 (2009)).
Sandbulte had set forth a bright-line rule that an insurance agent does not owe a duty to advise his or her client regarding the client’s insurance needs unless “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.”
The specific issue in both Langwith and Sandbulte was the extent of the agent’s duties to his or her client. Sandbulte had reiterated an earlier holding that agents have a duty “to use reasonable care, diligence, and judgment in procuring the insurance requested by an insured.”
What is not debatable, however, is that the majority opinion recognizes a duty on the part of insurance agents that has not heretofore been recognized in Iowa. In 2011, the legislature put up a stop sign after we modified our previous law of agent’s duties based on the Restatement (Third) of Agency and a much larger and
IV. Under the Majority’s Own Reasoning, There Is No Basis for a Negligent Misrepresentation Claim.
The majority engages in a thorough and accurate review of our negligent misrepresentation precedents. Ultimately, though, its analysis is undermined by a lack of conceptual clarity.
The majority has correctly described the two forks in the road. Generally speaking, if A (or A’s agent) negligently provides false information to B to guide B in a transaction with C, then a potential negligent misrepresentation claim may lie. However, if A (or A’s agent) negligently provides false information to B in a transaction with A, then this is the classic situation involving only two parties where the tort of negligent misrepresentation is not available. See generally Sain v. Cedar Rapids Cmty. Sch. Dist.,
According to the majority: “When Schif-fer allegedly advised Tom and Michele that Tom’s daughter was no longer the primary beneficiary on the policy, he was functioning as Tom’s agent.” I agree that to the extent Sehiffer made a negligent misrepresentation in his capacity as Tom’s agent to Tom regarding the status of beneficiaries, a potential claim for negligent misrepresentation by Tom (or his estate) may lie. In this scenario, Sehiffer is like the guidance counselor in Sain. Id. at 126-28. He was supplying information, as insurance agents do, to his client Tom to guide Tom in a transaction with a third party, namely Farm Bureau. Id.
However, the majority’s reasoning does not support a negligent misrepresentation claim by Michele. Michele had no ability to designate beneficiaries under the life insurance policy. The only action she could have taken was to try to influence Tom to take some action. Thus, any statements made to her by Sehiffer as Tom’s agent were not statements for her guidance in dealings with someone else; they were statements for her guidance in dealings with Tom. See id. at 126. Put another way, could Michelle have sued Tom for negligently misrepresenting that she was going to receive the $35,000? Clearly not. Therefore, she cannot sue a person who was making statements on Tom’s behalf either. See Haupt v. Miller,
The majority cites a treatise to try to suggest that its position is within the legal mainstream. See 1 Jeffrey E. Thomas & Francis J. Mootz, New Appleman on Insurance Law Library Edition § 2.05[2][d][i], at 2-33 to 2-34 (2011). However, this treatise discussion is part of a section entitled, “Intermediaries’ Liability to Insureds.” Id. at 2-28. The only actual case cited by the majority where a putative beneficiary was allowed to sue the insured’s agent is Merrill v. William E. Ward Ins., 87 Ohio App.3d 583,
Finally, even if I agreed with the majority that Michele could bring a negligent misrepresentation claim against Schiffer, the majority cannot credibly explain why it does not affirm summary judgment for Farm Bureau on that claim. According to the majority, Schiffer was acting as Tom’s agent; indeed, that is essential to the majority’s analysis. So there is no basis for Farm Bureau to be vicariously liable for Tom’s conduct under respondeat superior.
For the foregoing reasons, I dissent and would affirm the dismissal of the negligence and negligent misrepresentation claims.
CADY, C.J., and WATERMAN, J., join this dissent.
. The majority points out that Farm Bureau failed to make a specific argument concerning the economic loss rule. I do not believe that was necessary because the economic loss rule is simply an aspect of the overall duty question that is at the core of this case. In my view, we should proceed to apply the proper law to the duty question, including the economic loss rule. However, given the majority’s decision to reserve the application of the economic loss rule to the present facts for another day, I simply make these comments to set forth my views at this time.
. The relationship between an intended beneficiary and an insurance agent is not one of principal/agent. “Agency ... results from (1) manifestation of consent by one person, the principal, that another, the agent, shall act on the former’s behalf and subject to the former's control and, (2) consent by the latter to so act.” Pillsbury Co. v. Ward, 250 N.W.2d
Apart from her general negligence claim, Michele has a separate negligent misrepresentation claim, which is defective for reasons I discuss below.
. The majority’s conclusion regarding duty is also contrary to a venerable precedent of this court. In Duffie v. Bankers’ Life Ass’n of Des Moines, the widow of a life insurance applicant brought an action as designated beneficiary in the application alleging that the insurer’s negligent delay in processing the application deprived her of the insurance policy proceeds.
. I acknowledge that terms like "arm’s length” and "adversarial” would not apply to Schiffer’s alleged conversations with Tom and Michele. See Sain,
. Notably, there was considerable written documentation to establish the decedent’s intent to make his children the beneficiaries, unlike here. See part I of my dissent, above.