810 A.2d 553 (N.H. 2002), 2001-594, Sintros v. Hamon

Docket Nº:2001-594.
Citation:810 A.2d 553, 148 N.H. 478
Opinion Judge:BROCK, C.J.
Party Name:Michael M. SINTROS and another. v. Thomas HAMON and another.
Attorney:[* A.2d 554] Phillips Law Office, P.L.L.C., of Concord (Roger B. Phillips on the brief), for the plaintiffs. Mallory and Friedman, P.L.L.C., of Concord (Mark L. Mallory on the brief), for the defendants. Donahue Law, P.A., of Vero Beach, FL (Kathryn B. Johnston on the brief), for the New Hampshir...
Case Date:October 29, 2002
Court:Supreme Court of New Hampshire
 
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Page 553

810 A.2d 553 (N.H. 2002)

148 N.H. 478

Michael M. SINTROS and another.

v.

Thomas HAMON and another.

No. 2001-594.

Supreme Court of New Hampshire.

October 29, 2002.

Submitted July 26, 2002.

Page 554

Phillips Law Office, P.L.L.C., of Concord (Roger B. Phillips on the brief), for the plaintiffs.

Mallory and Friedman, P.L.L.C., of Concord (Mark L. Mallory on the brief), for the defendants.

Donahue Law, P.A., of Vero Beach, FL (Kathryn B. Johnston on the brief), for the New Hampshire Trial Lawyers Association, as amicus curiae.

BROCK, C.J.

The plaintiffs, Michael and Thomas Sintros, appeal from an order of the Superior Court (Mangones, J.) granting summary judgment to the defendants, Thomas Hamon and Horace Mann Insurance Companies (Horace Mann). We affirm.

Considering the record in the light most favorable to the plaintiffs, the relevant facts follow. Thomas Sintros purchased automobile insurance [148 N.H. 479] from Horace Mann through its agent, Hamon. Michael Sintros, Thomas' son, was named as an insured under his father's policy. Horace Mann provided automobile insurance to the Sintros family for at least seven years. Over that time period, the Sintroses communicated with Hamon regarding new vehicles, additional drivers, and discounts for good driving records and good grades. In August 1997, Michael was seriously injured in an automobile accident while riding as a passenger in a friend's vehicle. Michael's medical expenses exceeded the friend's $100,000 liability policy limit. No further recovery was available under the Sintroses' policy with Horace Mann because their uninsured/underinsured motorist policy also contained a $100,000 liability limit, and their policy provided no excess coverage. The Sintroses brought a negligence action against Hamon, asserting that Hamon breached his duty to act as a reasonable insurance agent when he failed to recommend adequate and sufficient insurance coverage. The Sintroses also brought a negligence action against Horace Mann under a theory of vicarious liability, and for negligent training and supervision.

The defendants moved for summary judgment, arguing that neither Hamon nor Horace Mann owed a duty to advise the plaintiffs regarding the sufficiency of their insurance coverage. The defendants asserted that a duty to advise could arise only if a special relationship existed between the two parties, and because no such relationship existed, there was no duty to advise.

The superior court granted summary judgment to the defendants, ruling that "[a]n insurance agent does not have a general duty to advise an insured as to the sufficiency of coverage." In its decision, the superior court stated that while a duty to advise might arise if an agent responds to an insured's inquiry regarding the sufficiency of coverage, there was no such evidence in this case. Alternatively, the court stated that a duty to advise might arise if a special relationship existed between the parties, but the record, viewed in the light most favorable to the Sintroses, did not support such a finding.

On appeal, the plaintiffs argue that: (1) an insurance agent owes clients a duty of reasonable care which includes a duty to recommend adequate liability and underinsured motorist coverage, and that the superior court erred in requiring a special relationship between the parties before imposing such a duty; and (2) even if the special relationship test applies, the relationship

Page 555

between the parties satisfies that test. The plaintiffs do not raise Horace Mann's possible liability as a separate issue. Because Horace Mann's liability would be predicated on a finding that its agent was negligent, we deal with only the duties an insurance agent owes clients.

In [148 N.H. 480] reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. See Del Norte, Inc. v. Provencher, 142 N.H. 535, 537, 703 A.2d 890 (1997). "If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment." Id. (quotation and brackets omitted). We review the trial court's application of the law to the facts de novo. See id.

To recover for negligence, a plaintiff must demonstrate that there...

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