SUMMARY
This case involves the liability of an insurance agency for negligence in advising on, procuring, and maintaining an insurance package for a new business venture that did not include workers’ compensation insurance. The lack of workers’ compensation insurance was discovered after an employee was injured in a catastrophic fire during the third year of business operations. After a lawsuit in which the employee obtained a multimillion dollar judgment against the owners of the business, this suit was filed by the owners against the insurance agency. The court, following a bench trial, found the insurance agency liable, and entered judgment in favor of the owners in the amount of the judgment that remained outstanding in the underlying case. The insurance agency appeals, claiming (1) the evidence was insufficient to support a finding of negligence on its part largely because the evidence did not support any duty owed to the insured, (2) the action was barred by the statute of limitations, and (3) the trial court erred in refusing to find comparative negligence on the part of the owners, who failed to read their insurance policies.
We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
John Daniel Williams and Steven Stuart Simon were boyhood friends in Oklahoma, where Williams still lives and owns his own mortgage brokerage business. Simon moved to California, and was employed by Rhino Linings of San Diego. Rhino Linings USA, Inc. (Rhino USA), is an enterprise with dealerships throughout the country; the dealerships are engaged in the business of installing spray-on linings onto the beds of pickup trucks. Rhino USA sells dealerships, providing new owners with spray equipment, supplies, and the like. Simon proposed to Williams that the two should obtain a dealership from Rhino USA, to be located in Santa Fe Springs; Williams would provide most of the financing and Simon would be responsible for sales and managing the business onsite. Williams agreed, and the two became partners in the venture. Williams remained in Oklahoma, but was responsible for financial and administrative matters, including insurance.
Williams and Simon opened the business—Rhino Linings of Santa Fe Springs (Rhino SFS)—some time in 1999. Rhino USA referred Williams to
Thaw sent Williams a blank application form by fax, indicating that the program was “designed specifically for Rhino Liners dealers.” Williams filled in basic information, leaving all portions relating to insurance coverages blank. He signed the application, and returned it to Thaw, who selected the insurance coverages. Thaw did not send the application (which had a section for workers’ compensation insurance) back to Williams after she completed it. Thaw submitted the application to Travelers Insurance Company.
Thaw had considerable experience with insurance for Rhino Linings dealerships. Rhino USA had become a client of Thaw’s in the early to mid-1990’s and, by 1999, Thaw was handling the insurance needs of some 50 to 100 Rhino Linings dealerships. Thaw had met with Travelers Insurance personnel and helped design and develop the Rhino Linings dealership insurance package. Thaw participated in risk analysis with the Travelers underwriters, and visited Rhino USA, observing the product that was sprayed on the truck beds and the equipment used by the sprayer, including the breathing apparatus worn during application of the lining. She was aware that sprayers had the most dangerous jobs and that it would be important for a sprayer’s employer to know if its insurance provided no coverage for a sprayer’s on-the-job injuries. Thaw knew that workers’ compensation insurance is mandatory in California.
Thaw attended informational seminars for new dealers given by Rhino USA, and spoke at the seminars about the insurance needs of Rhino Linings dealerships. The package of insurance coverages Thaw participated in designing for Rhino Linings dealerships was not available through all Traveler agents; brochures with Thaw’s name on them were distributed at the Rhino USA seminars at which she spoke. Thaw represented and marketed the insurance package as having been specifically designed for Rhino Linings dealers.
By the time the one-year Travelers policy expired in January 2000, Thaw had changed her employment and had begun working for Timothy Stuart Mills Insurance Services, a predecessor company of Hilb, Rogal & Hobbs Insurance Services of California, Inc. (collectively, HRH). Thaw continued to act as insurance agent for Rhino SFS after she began working for HRH. By January 2000, Travelers was no longer offering the Rhino Linings insurance package, so Thaw, while employed by HRH, created a new insurance package, underwritten by Hartford Casualty Insurance Company, by using a Hartford “Spectrum” policy and adding additional coverages necessary for Rhino Linings dealerships, such as garagekeepers coverage. Again, the package she created for Rhino SFS from Hartford did not contain workers’ compensation insurance. In January 2001, the Hartford policy was renewed, again without workers’ compensation insurance; this time neither Thaw nor anyone at Hartford spoke to Williams or anyone else at Rhino SFS when the policy was renewed.
In July 2001, a fire at the Rhino SFS premises resulted in severe bum injuries to Kendall Mann, then the sales manager for Rhino SFS. When Williams called Thaw to report the fire, he learned for the first time that Rhino SFS did not have the necessary workers’ compensation coverage.
Mann brought a civil action against Rhino USA, Rhino SFS, Williams and Simon. Williams and Simon were provided a defense and were represented by Hartford-appointed counsel. The jury brought in a verdict against Rhino USA and Rhino SFS (the latter including Williams and Simon, jointly and
Williams and Simon (collectively, Williams) then filed this negligence action against HRH and the Robert Driver agency on July 5, 2005, seeking compensatory damages in the amount outstanding on the Mann judgment. The Driver agency obtained summary judgment, and no appeal was taken from that judgment. 2 HRH sought summary judgment on the ground that the statute of limitations had run, but its motion was denied, the court (Judge Raul Sahagun) finding the statute did not begin to run until March 2, 2004, when the Mann judgment was entered in an amount in excess of the general liability insurance policy limits.
The case proceeded to trial before Judge William J. Bimey, Jr., sitting without a jury. The court heard testimony from a number of witnesses, including Williams, Simon, Thaw, Karen Williams (John Williams’s wife), and experts for each side. In addition to the facts recounted above, the following evidence was adduced in respect of the procurement of Rhino SFS’s insurance.
1. The initial policy (January 1999).
As it happened, Robyn Thaw’s recollection of her telephone conversations with Williams in January 1999 differed from those of Williams, recounted above. Thaw testified that, prior to sending the insurance proposal to Williams, her staff had calculated premiums of $6,204 for workers’ compensation insurance, based on an annual payroll of $120,000 for three full-time workers.
3
Thaw said she called Williams in order to discuss workers’ compensation insurance, told him the annual premium would be $6,204, and told him workers’ compensation insurance was mandatory in California, but that he could buy it from someone other than the Robert Driver agency. Thaw said Williams declined to purchase workers’ compensation insurance, so the
Thaw admitted that she never provided Williams a written quote for workers’ compensation insurance. She wrote no memorandum to the file (or to Williams) to indicate that workers’ compensation coverage was offered and declined. She made no record of her telephone call with Williams about workers’ compensation insurance, despite the fact that the Robert Driver agency used a printed form entitled “telephone discussion record,” which stated that the form should be completed for every call. HRH’s own expert testified that an “insurance agent who is using reasonable care, diligence, and judgment documents] in the file when a client declines mandatory coverage,” and sends a confirming letter to the client when the client refuses mandatory insurance coverage.
2. The January 2000 policy.
Thaw also testified about her conduct in January 2000, when the Rhino SFS insurance policy was expiring (and Travelers was no longer offering the Rhino Linings package). Thaw had then been employed by HRH (which acted as agent for Hartford) since August 1999. She testified that she was the insurance agent for Rhino SFS in January 2000 when Rhino SFS purchased the new Hartford policy. Thaw said she talked to John Williams’s wife, Karen Williams, on January 21, 2000. (Karen Williams helped Rhino SFS with bookkeeping tasks from her home in Oklahoma.) Thaw claimed she talked to Ms. Williams about workers’ compensation insurance, asking her if Rhino SFS would like Thaw to quote workers’ compensation coverage, and Ms. Williams said she would talk to her husband and get back to Thaw. (At
Karen Williams testified that she spoke to Thaw a few times, but the only matters about which she spoke to Thaw were premium payments and obtaining certificates of insurance. Ms. Williams testified that her husband was the person who handled the insurance for Rhino SFS, and that if Thaw had ever asked her about insurance coverage, she would have told Thaw to talk to her husband. She testified that she never spoke to Thaw about workers’ compensation insurance coverage, and was never offered workers’ compensation coverage or told by Thaw that it was required in California. She said she did not decline workers’ compensation insurance from Thaw, and “wasn’t in a position to decline anything.”
Williams spoke to Thaw on January 25, 2000, the effective date of the new Hartford policy. Thaw told him the Travelers policy was no longer in effect, but that she had “a like kind, similar-type policy in replacement of that policy,” from Hartford. Williams understood that the Hartford policy would provide him “with essentially the same coverage as the Travelers policy,” for a slightly higher premium, and he approved the quote Thaw gave him for the new policy. Thaw did not talk to Williams about the need for workers’ compensation insurance, or about any of the particular coverages involved in the Hartford policy. Thaw did not ask him if he had workers’ compensation insurance, and did not tell him that the policy would not cover his employees; Thaw did ask Williams for the names, telephone numbers and driver’s license numbers of the persons working at the Rhino SFS site (Simon, Mann, and the sprayer), giving Williams the impression the employees would be covered by the insurance.
Again, Thaw’s files contained no written confirmation of her claims that she had discussed workers’ compensation insurance with Ms. Williams or that Ms. Williams had declined coverage.
In January 2001, the Hartford policy was renewed. Williams did not receive any telephone calls from Thaw or anyone at HRH, nor did he receive any telephone calls or requests from Hartford. Williams received an invoice from Hartford, which stated; “Thank you for renewing your insurance with The Hartford.” The invoice also stated: “For Certificates of Insurance, Policy Changes, or Coverage Questions, Call: Timothy Stuart Mills Ins Srv [HRH’s predecessor]/SCIC” and provided an “800” telephone number. The policy likewise showed “Timothy Stuart Mills Ins Srv/SCIC” as the agent/broker. 5
At trial, HRH asserted that its predecessor, the Timothy Mills agency, had no authority to renew the policy in January 2001, and that only Hartford could do so. This assertion was based on an agreement between the Timothy Mills agency and Hartford (Hartford/HRH-Mills agreement), under which Hartford would handle select HRH accounts, including the Rhino SFS account, and provide “agency services” such as “commercial insurance coverage counseling and such other commercial insurance services as are typically furnished by Agent.” Rhino SFS was not a party to and was never given a copy of this agreement.
Thaw testified that she was “still the insurance agent for Rhino Linings Santa Fe Springs at the time of the fire,” but claimed that when the January 2000 policy (the first Hartford policy) went into effect, “Hartford became responsible at that point in time for acting as the, as the agent for the insured, the policy. They were responsible from that point forward for securing renewal information ... or renewing the policy ... in accordance with [the Hartford/HRH-Mills agreement].” According to Thaw, Hartford took over all of the duties that Thaw had had prior to that time, including “commercial insurance coverage counseling,” and in 2001, Hartford “had a duty to provide commercial insurance coverage counseling to Rhino Linings of Santa Fe Springs.” 6 Thaw and her agency received a commission for the sale of the Hartford policy in January 2001, and the agency agreement between Hartford and the Timothy Mills agency also indicated that if Hartford no longer wished to write a policy for a client of the Timothy Mills agency, that client “still belonged to [the Timothy Mills agency] . . . .”
The trial court issued a statement of decision granting judgment in favor of Williams and against HRH. The court found that:
—Thaw “obviously acted as more than an ordinary agent,” and held herself out as having expertise with respect to the insurance needs of Rhino Linings dealerships.
—In January 2000, Thaw, while employed at HRH, created a new insurance package for Rhino SFS and again used her expertise to create the new package with Hartford, “for the benefit of her Rhino dealership client, Williams and Simon.”
—Thaw admitted that she was the insurance agent for Rhino SFS in January 2001, while employed by HRH, when Rhino SFS renewed the Hartford policy, and that she procured the coverages which Rhino SFS had in effect at the time of the fire.
—The insurance package created by Thaw provided no coverage for workers’ compensation, “and no coverage for an employee such as the sprayer who dealt with toxic materials used for lining truck beds. [Williams and Simon] plausibly argued that this policy exclusion would require an experienced broker, with a higher duty of care, to address in presenting the insurance package to a Rhino dealership.”
—Williams and Simon “reasonably assumed agent Thaw’s expertise and relied on her in the belief they were offered an insurance ‘package’ tailored for Rhino dealerships.”
—The court found the Williamses’ evidence—that they never received any advisement from Thaw that they were required to obtain separate workers’ compensation insurance and that workers’ compensation insurance was not a part of the “package”—more credible than Thaw’s contrary testimony that she offered and discussed workers’ compensation insurance with Williams in 1999 and his wife in 2000. The court further found it “taxes credibility and plain common sense expectation of business practice under the circumstances, that no written record of even minimum formality exists by agent Thaw documenting considerations, discussions, advisement, or Plaintiffs’ alleged declinations relating to workers’ compensation insurance for Plaintiffs’ Rhino SFS dealership.”
—The preponderance of the evidence established that Thaw, while employed by HRH, was negligent “as she failed to use the skill and care that a reasonably careful insurance professional would have used in similar circumstances.”
The court also rejected HRH’s claim that Williams’s failure to read and/or analyze the insurance documents constituted negligence, observing that most
Judgment was entered on September 4, 2007, in the amount of $5,829,446.35, plus interest after July 2, 2007 (the date of the court’s initial order), and costs. HRH’s motion for a new trial was denied, and this appeal followed.
DISCUSSION
HRH’s appeal raises three issues: whether the evidence was sufficient to support the trial court’s finding of professional negligence on HRH’s part, whether the action was barred as a matter of law by the statute of limitations, and whether the trial court erred as a matter of law in failing to assign any comparative fault to Williams.
A. The evidence amply supported the court’s finding that Thaw, when employed by HRH, failed to use the skill and care a reasonably careful insurance professional would have used in similar circumstances.
We begin with a few foundational principles.
Fitzpatrick, supra,
“The rule changes, however, when—but only when—one of the following three things happens: (a) the agent misrepresents the nature, extent or scope of the coverage being offered or provided . . . , (b) there is a request or inquiry by the insured for a particular type or extent of coverage . . . , or (c) the agent assumes an additional duty by either express agreement or by ‘holding himself
HRH insists that there is “no legal basis” for the trial court’s finding that Thaw’s expertise created a heightened duty to Williams, because “[a]ny expertise that she possessed did not extend to worker’s compensation insurance, which was outside the scope of her alleged expertise concerning the insurance needs of Rhino Linings dealers,” and because Williams “never knew about the supposed expertise, and never relied on it.” Both arguments are not well founded. The first is contradicted by Thaw’s own claims that her staff calculated workers compensation insurance premiums and that she spoke with Williams about such insurance before she sent her insurance proposal. The second is contradicted by Williams’s testimony, which clearly established both his understanding that Thaw was “the go-to person” for the insurance needs of Rhino Linings dealerships and his reliance on her expertise (because he asked her for “whatever insurance was needed to operate the business” and relied on her to complete his insurance application by selecting the insurance coverages). 8
HRH makes several other arguments, none of which is meritorious.
First, HRH asserts that Williams is “bound by the terms of the 1999 Travelers insurance policy, since they received and accepted it. . . .” For this
In short, Paper Savers teaches that an insured’s failure to read his policy of insurance does not, as HRH would have us believe, render the insured’s reliance on the agent’s advice unjustifiable as a matter of law. Here, as in Paper Savers, there were issues of fact as to whether Thaw held herself out as having expertise in the insurance needs of Rhino Linings dealerships, and whether Williams reasonably relied on that expertise. The trial court determined those facts adversely to HRH.
Next, HRH asserts that even if Thaw and the Robert Driver agency were negligent in January 1999, HRH cannot be charged with liability for that
HRH claims that it was not involved in the January 2001 renewal of the Hartford policy in effect at the time of the fire, so it cannot be held liable for the lack of workers’ compensation insurance in that policy. HRH cites no authority supporting that proposition, and it defies common sense. Thaw admitted she was Rhino SFS’s agent in January 2001; Thaw admitted she procured the coverages that were in effect at the time of the fire (which were unchanged from the January 2000 coverages); and HRH received its commission for the policy. It cannot avoid liability under these circumstances. (Cf.
Clement
v.
Smith, supra,
HRH suggests throughout its brief that the insurance agent’s duty is defined by the agent’s contractual relationship with the prospective insurance purchaser, that the formation of a contract requires a meeting of the minds, and that there was no meeting of the minds as to the purchase of workers’ compensation insurance (because, while Williams may have asked for all the insurance necessary to open his business, the agency “made a counter offer” (the insurance application) which did not include workers’ compensation insurance, and that application was binding and Williams “got what [he] had bargained for and what [he] paid for”). In a like vein, HRH argues that in January 2000, Williams received the coverage he asked for, because he requested coverage similar to the existing policy with Travelers, and that is what he got.
We find these arguments unconvincing. The first argument ignores the uncontested fact that Thaw completed the so-called counteroffer to specify
In sum, there is no merit to HRH’s claim that the evidence was insufficient to support the trial court’s finding of professional negligence on its part.
B. The action was not barred by the statute of limitations.
HRH contends that Williams’s lawsuit is barred as a matter of law by the applicable two-year statute of limitations. (Code Civ. Proc., § 339, subd. 1.) HRH says the statute began to run on July 28, 2001, when employee Mann was seriously injured in the fire, because on that date Williams incurred liability to Mann that was “inescapable,” and only the amount of Williams’s liability, not the fact of his liability, remained to be determined. HRH is mistaken.
The statute of limitations begins to run “when the cause of action is complete with all of its elements . . . .”
(Norgart v. Upjohn Co.
(1999)
This case is not significantly different from
Walker.
While Williams became aware of his exposure shortly after the fire, and knew of his potential
HRH correctly points out that “it is uncertainty as to the fact of damage, rather than its amount, which negatives the existence of a cause of action .. . .”
(Walker, supra,
In short, the trial court did not err. The conclusion cannot be avoided that, on the date of the fire and thereafter until entry of a judgment in excess of the one million dollars in coverage provided by Hartford, the fact of Williams’s “ultimate injury or damage remained to be determined.”
(Walker, supra,
HRH contends that the trial court’s finding that Williams was free from negligence was erroneous, and the case must be remanded for a new trial, because Williams’s “negligence was established as a matter of law.” This is said to be because (1) Williams violated the Labor Code by failing to carry workers’ compensation insurance and, under Evidence Code section 669, a person’s negligence “is presumed if that person has violated a statute,” and (2) “[i]t is undisputed that [Williams] violated [his] common law duty to read the insurance policies that [he] purchased.” Neither argument is meritorious.
First, HRH’s reading of Evidence Code section 669 is incomplete, to say the least. Under that section, a person’s negligence is presumed if he violated a statute and the violation “proximately caused death or injury to person or property,” and the death or injury resulted from an occurrence “of the nature which the statute . . . was designed to prevent,” and the person suffering the death or injury was one of the class of persons for whose protection the statute was adopted. (Evid. Code, § 669, subd. (a).) Williams’s failure to have workers’ compensation insurance obviously did not cause any injury to HRH (or to Mann, for that matter), so Evidence Code section 669 has no application in this case.
Second, it was clearly
not
“undisputed” that Williams was negligent in failing to read his policy, and there is no authority for the proposition that an insured’s failure to read his policy is negligence as a matter of law. As pointed out above, “the issue whether an insured has a duty to read his policy . . . is . . . not one that can be stated baldly without an analysis of the surrounding facts.”
(Paper Savers, supra,
In short, findings on questions of fault and comparative fault, including breach of duty, causation and allocation of fault, are, as Williams points out, quintessentially matters of fact. An appellate court has no power to reweigh the evidence, or to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn from the evidence.
(In re Stephen W.
(1990)
DISPOSITION
The judgment is affirmed. John Daniel Williams and Steven Stuart Simon are to recover their costs on appeal.
Rubin, Acting R J., and Bigelow, J., concurred.
A petition for a rehearing was denied October 2, 2009, and appellant’s petition for review by the Supreme Court was denied November 19, 2009, S177076.
Notes
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
The policy contained an exclusion to the coverage for bodily injury, stating that the insurance did not apply to bodily injury to an employee arising out of and in the course of employment.
The court concluded summary judgment was proper because the Robert Driver agency was not the broker for the policy in effect at the time of the fire, and was not vicariously liable for its former employee’s professional activities at her new place of employment (HRH). Because the policy brokered by the Driver agency had not been renewed and had been replaced by a policy package from another company through another broker, no damages were causally related to the Driver agency’s negligence.
Questions were raised at the trial about the $6,204 annual premium calculation based on a $120,000 payroll, because Rhino SFS planned to employ a single sprayer at $24,000 a year (and, according to the testimony, company owners need not be covered by workers’ compensation insurance).
The court asked Thaw if she recalled the conversation with Williams when he declined workers’ compensation insurance, and Thaw said she did. This exchange ensued:
“THE COURT: Did you, if you recall, did you remonstrate with him and say, hey, you can’t do this or you shouldn’t do this, or the law prohibits you from just walking away from this? You remember—I mean wouldn’t that get your hackles up a little bit?
“THE WITNESS: (No audible response.)
“THE COURT: Of course. Okay. [ID You recall, you know, coming back at him and saying, hey, wait a minute, you can’t do this, or something like that, if you recall?
“THE WITNESS: Well, yes, because I had said that it was mandatory.
“THE COURT: Yeah.
“THE WITNESS: And that was his choice. He doesn’t have to buy it from me.
“THE COURT: So that was your assumption? Maybe he was going to buy it from someone else?
“THE WITNESS: Yes.
“THE COURT: But, you know, it’s your business. You know, he should be buying it from you as long as he is deáling with you. Okay, [f] You can’t blame me for wondering; right?
“THE WITNESS: I can’t.”
No one ever told Williams what “SCIC” meant, and Williams always believed that Thaw and the Timothy Mills agency were Rhino SFS’s insurance agents.
The trial court observed that “HRH has sued Hartford in a separate action, claiming that Hartford had a duty to procure and provide Rhino SFS with workers’ compensation insurance pursuant to the [Hartford/HRH-Mills agreement].”
Fitzpatrick
contains a thorough discussion of case authorities applying these principles.
(Fitzpatrick, supra,
57 Cal.App.4th at pp. 920-927.) In
Fitzpatrick,
the issue was whether the insurance agency had a duty to advise the insureds of the availability of personal umbrella coverage, which would have resulted in their being more adequately compensated for injuries they suffered in an automobile accident.
(Id.,
at pp. 918, 920.) The court rejected the contention that the insurer held its agents out as having special expertise in the area of personal insurance needs, thus assuming an additional duty to the insured, finding (among other things) that a brochure (which the insureds never saw) suggesting that the insured ask himself (and then the agent) about additional insurance needs was “far from a ‘holding out’ of special expertise ....’’
(Id.
at p. 929.) In
Jones, supra,
Similarly, HRH argues “there were no communications between [Williams and Thaw] that established” that Thaw held herself out as having expertise in a given field of insurance, because Williams testified that he and Thaw never specifically discussed workers’ compensation insurance (and indeed “Williams did not even know what worker’s compensation insurance was at the time of his 1999 telephone conversations with [Thaw]”). Again, the assumption that Thaw had to hold herself out as an expert in workers’ compensation insurance in order to be liable for failing to advise Williams about it is simply wrong. Thaw claimed expertise, in conversations with Williams, in the insurance needs of Rhino dealerships, and those insurance needs necessarily included workers’ compensation insurance which is mandatory in California.
Even though the
Sarchett
court recognized the general rule cited in the text, it upheld the trial court’s directed verdict on the insured’s bad faith claim based on the insurer’s failure to advise him of his arbitration rights under the policy: “Once it becomes clear to the insurer that its insured disputes its denial of coverage, however, the duty of good faith does not permit the insurer passively to assume that its insured is aware of his rights under the policy. The insurer must instead take affirmative steps to make sure that the insured is informed of his remedial rights.”
(Sarchett v. Blue Shield of California, supra,
Hadland
was a fraud claim against the insurer involving a health insurance policy. The court concluded the insureds’ reliance on representations by the defendants of “full protection” under the policy, or of coverage “as good or better” than the insureds’ then-current, more expensive policy, was unjustified as a matter of law, because any such representations “were patently at odds with the express provisions of the written contract”; had the plaintiffs read the contract (which contained-“unambiguous” maximum benefits of various kinds), they would have discovered the policy’s limitations and rejected it.
(Hadland, supra,
24 Cal.App.4th at pp. 1588-1589.) In
Aetna,
the court recited the “ ‘general rule that the receipt of a policy and its acceptance by the insured without an objection binds the insured as well as the insurer and he cannot thereafter complain that he did not read it or know its terms. It is a duty of the insured to read his policy.’ ”
(Aetna, supra,