Lead Opinion
OPINION
¶ 1 The principal issue in this appeal is whether an insurance agent’s compliance with Arizona Revised Statutes (“A.R.S.”) section 20-259.01(B) (Supp. 2013), a statute that requires insurers to offer uninsured and un-derinsured motorist coverage to their insureds, bars an insured from asserting a professional negligence claim against an insurance agent for failing to obtain the under-insured motorist coverage the insured requested and the agent agreed to procure. As we explain, the statute does not bar such a claim.
FACTS AND PROCEDURAL BACKGROUND
¶2 In 2001, Lesley Wilks contacted the John Manobianco Insurance Agency, Inc. seeking a “full coverage” insurance policy for the two vehicles she and her husband owned. The Agency procured a policy for the Wilks-es through State Farm Mutual Automobile Insurance Company that included uninsured motorist (“UM”) and underinsured motorist (“UIM”) coverage. In 2003, the Wilkses switched to another insurer and obtained a policy that also included UM and UIM coverage. In 2004, unhappy with the service they had received from the other insurer, Lesley contacted the Agency.
¶3 Accordingly to Lesley, she told the Agency she “wanted the same insurance back____I asked for the exact same coverage that I’d had previously, full coverage,” which would have included UM and UIM coverage. In response, the Agency told Lesley “they would give me the exact same coverage I had before.” Lesley then went to the Agency’s office and was “passed a bunch of documents” and asked to “[s]ign here, here, initial.” The documents included an Arizona Department of Insurance-approved form (“DOI form”) that set out options for the selection or rejection of UM/UIM coverage. Lesley signed but did not look at the DOI form which had been marked to select UM but not UIM coverage. As before, the Agency procured the insurance through State Farm. The State Farm policy provided UM but not UIM coverage.
¶4 In September 2008, an underinsured driver rear-ended Lesley. State Farm denied Lesley’s claim for UIM coverage because she had signed the DOI form.
¶5 The Wilkses sued the Agency and its president, John Manobianco, (collectively, the “Agency”) for professional negligence in failing to procure the UIM coverage despite Lesley’s request “for the exact same coverage [she] had before.”
DISCUSSION
¶ 6 On appeal, the Wilkses argue the superior court should not have rejected their professional negligence claim against the Agency because it breached its duty of care by failing to procure UIM insurance as part of the coverage Lesley requested. The Agency argues, however, that as a matter of law, it did not breach any duty it may have
I. The Wilkses’ Professional Negligence Claim Against the Agency
¶ 7 In general, “[a]n insurance agent owes a duty to the insured 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.,
¶8 As discussed, Lesley asked for the “exact same coverage that [she] had previously, full coverage,” which had included UIM coverage. In response, the Agency told her it would “give [her] the exact same coverage [she] had before.” According to the Wilkses’ standard of care expert, an agent must “review the existing coverage in the prior policy. And make sure, when a client comes in and says they want full coverage, that they are getting what they think they are getting” and “that the coverage is the same as what they had [before].” John Ma-nobianco also agreed an agent has a duty to provide clients with the “appropriate paperwork” so they can obtain the requested coverage. And, although the Agency did not have any records that specified or disclosed the coverages the Agency had procured for the Wilkses from State Farm in 2001, see swpra ¶ 2, Manobianeo acknowledged the Agency could have called State Farm to obtain this information. This evidence created a genuine dispute of material fact as to whether the Agency exercised reasonable care in carrying out its duties to procure the insurance the Wilkses had requested.
¶ 9 Despite this evidence, the Agency argues the superior court properly granted summary judgment because Lesley signed the DOI form without looking at it. Whether Lesley acted reasonably in signing the DOI form without looking at it or, instead, reasonably relied on the Agency’s statement it would “give [her] the exact same coverage [she] had before” presents a question for the finder of fact. Darner Motor Sales, Inc.,
¶ 10 Accordingly, on the record before us, the Wilkses presented a genuine dispute of material fact as to whether the Agency breached the applicable standard of care by failing to procure for the Wilkses the “exact same coverage” they had before. See generally Gipson v. Kasey,
II. A.R.S. § 20-259.01(B)
¶ 11 The Agency argues that, as a matter of law, it did not breach any duty of
¶ 12 Section 20-259.01(B) requires insurers to offer UIM coverage by written notice to the insured. In relevant part, it provides:
Every insurer writing automobile liability or motor vehicle liability policies shall also make available to the named insured thereunder and shall by written notice offer the insured and at the request of the' insured shall include within the policy un-derinsured motorist coverage____The selection of limits or rejection of coverage by a named insured or applicant on a form approved by the [DOI] director shall be valid for all insureds under the policy____ The offer need not be made in the event of the reinstatement of a lapsed policy or the transfer, substitution, modification or renewal of an existing policy.
Id.
¶ 13 As our supreme court explained in Ballesteros, AR.S. § 20-259.01 has evolved to provide insurers certainty and protection from “after-the-fact inquiries regarding the offer of [UM/UIM] coverage.”
¶ 14 On its face, however, the statute only mentions insurers. And, indeed, only insurers are obligated to “make available” and “by written notice offer” insureds UM/UIM coverage. Based on this wording, the Wilkses argue the statute only protects insurers and not agents. The plain language of the statute supports the Wilkses’ argument. See Deer Valley Unified Sch. Dist. No. 97 v. Houser,
¶ 15 Further, consistent with the plain language of the statute, the statutory scheme distinguishes between “insurer” and “agent.” Section 20-104 (2002) defines insurer as “every person engaged in the business of making contracts of insurance.” In National Securities, Inc. v. Johnson,
¶ 16 Moreover, the Legislature could have easily included agents in A.R.S. § 20-259.01 if it had intended to do so. Indeed, it briefly did so. In 1997, the Legislature amended A.R.S. § 20-259.01 and required the DOI to “prescribe a consumer information and coverage selection form ... to be signed by the purchaser and to be used by all insurers offering automobile coverage,” including UM/ UIM coverage. 1997 Ariz. Sess. Laws, eh. 125, § 1 (1st Reg. Sess.). The Legislature required the DOI form to provide for the selection of limits or rejection of such coverage and directed that “[u]se of the form by
¶ 17 Nevertheless, the Agency argues the “selection of limits or rejection of coverage by a named insured or applicant on a [DOI form] shall be valid” provision in A.R.S. § 20-259.01(B) is sufficiently broad to bar the Wilkses’ negligence claim. Even if we could ignore that the provision’s purpose was “to protect insurers from after-the-fact inquiries regarding the offer of coverage,” Bal-lesteros,
¶ 18 Finally, citing Millers National Insurance Co. v. Taylor Freeman Insurance Agency,
¶ 19 In Millers, an insurer recovered breach of contract damages from its general agent and subagent after they failed to make a written offer of UIM coverage to one of the insurer’s insured.
¶ 20 Millers does not support the Agency’s argument that the statutory protections of A.R.S. § 20-259.01 should extend to an agent because the agent may be contractually liable to an insurer when it fails to comply with A.R.S. § 20-259.01 on the insurer’s behalf. Millers merely recognizes that the relationship between an insurer and its agent is governed by the law of agency and when an agent breaches its contractual duties to act for the insurer, the agent will be responsible for the resulting damages.
CONCLUSION
¶ 21 For the foregoing reasons, we reverse the superior court’s judgment in favor of the Agency and remand for further proceedings consistent with this opinion. Because the Wilkses are the prevailing party on appeal, we award them their costs on appeal contingent upon their compliance with Arizona Rule of Civil Appellate Procedure 21.
Notes
. We view the facts and the inferences to be drawn from those facts in the light most favorable to the Wilkses as the party against whom summary judgment was entered. See Newman v. Cornerstone Nat’l Ins. Co.,
. The Wilkses also sued State Farm for negligent training. The superior court dismissed this claim on State Farm’s motion for summary judgment. The Wilkses have not challenged that ruling, and State Farm is not a party to this appeal.
. The Agency argues Lesley did not request the same coverage she had before because she declined rental car and medical payments coverage. Lesley explained she declined those coverages only after speaking with the Agency about them. The finder of fact will have to decide whether Lesley's explanation undercuts her assertion she asked the Agency for the same coverage she had before.
. In part, the Legislature amended the statute to "eliminate the litigation that occurs because of the close scrutiny of the circumstances surrounding the offer of uninsured motorist coverage.” Ariz. State Senate, Fact Sheet for S.B. 1445, 43d Leg., 1st Reg. Sess. (Apr. 29, 1997).
. The Legislature repealed the 1997 amendment because of, inter alia, complaints from the insur-anee industry that the consumer information and coverage selection form was an administrative burden. Ariz. State Senate, Fact Sheet for S.B. 1273, 43d Leg., 2d Reg. Sess. (June 25, 1998).
. Section 20-259.01 does not require an insurer to explain UM/UIM coverage. Ballesteros,
Concurrence Opinion
¶ 22 I agree that there is a genuine issue of material fact regarding whether John Ma-nobianco breached the applicable standard of care for an insurance agent by failing to procure the coverage Lesley and Paul Wilks requested, and I thus concur in the Majority’s holding that the superior court incorrectly granted summary judgment in favor of Manobianco and his insurance agency. I write separately, however, because I believe the Majority unnecessarily focuses on whether litigation immunity under A.R.S. § 20-259.01(B) applies to insurance agents.
¶23 After acknowledging that compliance with § 20-259.01(B) forecloses litigation against insurers who provide a written offer of underinsured motorist coverage, the Majority opines that the statute does not foreclose litigation against insurance agents under the same set of circumstances. See supra ¶ 17. But reading the statute to protect not only insurers, but also agents, would in my view be consistent with § 20-259.01(B)’s directive that an insured’s choice after having been provided a written offer of underinsured motorist coverage “shall be valid for all insureds,” and would further the Legislature’s intent to protect against “after-the-fact inquiries regarding the offer of coverage.” Ballesteros v. Am. Standard Ins. Co. of Wis.,
¶24 I agree with the Majority that the Arizona Supreme Court’s decision in Bal-lesteros does not address the type of claim at issue here, and that § 20-259.01(B) only forecloses claims relating to a duty to offer or explain the nature of underinsured motorist coverage. In Ballesteros, the court held that by providing an English version of the form contemplated under § 20-259.01(B), an insurance company foreclosed a claim that the company breached its contractual duty to offer underinsured motorist coverage not withstanding the insureds’ alleged inability to understand English.
¶25 Here, the Wilkses have not asserted that Manobianco failed to offer or explain underinsured motorist coverage, but rather that he failed to look up their previous coverage and to ensure that the same coverage was being provided. Thus, I agree with the Majority that the duty Manobianco is alleged to have breached is distinct from and independent of the duty to offer and explain addressed in § 20-259.01(B). Having reached that conclusion, however, in my view, further statutory analysis is unnecessary. Accordingly, I do not join in the portion of the Majority’s opinion that addresses whether § 20-259.01(B) applies to insurance agents.