Benante v. United Pacific Life Ins. Co., 37A03-9307-CV-00236

• Decision Date: 08 September 1994
• Docket Number: No. 37A03-9307-CV-00236,37A03-9307-CV-00236
• Citation: 639 N.E.2d 375
• Parties: Margie A. BENANTE, Appellant-Plaintiff Below, v. UNITED PACIFIC LIFE INSURANCE COMPANY, Appellee-Defendant Below, and Joseph Z. Kobielak, Non-Party to Appeal (Defendant Below).
• Court: Indiana Appellate Court

Page 375

639 N.E.2d 375

Margie A. BENANTE, Appellant-Plaintiff Below, v. UNITED PACIFIC LIFE INSURANCE COMPANY, Appellee-Defendant Below, and Joseph Z. Kobielak, Non-Party to Appeal (Defendant Below).

No. 37A03-9307-CV-00236.

Court of Appeals of Indiana,

Third District.

Sept. 8, 1994.

Rehearing Denied Jan. 18, 1995.

Mark A. Thiros, Cohen & Thiros, Merrillville, for appellant.

Karen L. Hughes, Daniel A. Medrea, Lucas, Holcomb & Medrea, Merrillville, for appellee.

STATON, Judge.

Margie Benante prevailed upon her conversion claim against Joseph Kobielak and United Pacific Life Insurance Company ("UPL"); the judgment was modified upon motion to correct error. Benante appeals and seeks additur; UPL cross-appeals and seeks reversal or remittitur. Seven issues are presented for this court's review. One issue is dispositive: whether UPL was entitled to judgment on the evidence because there is an absence of evidence that Kobielak acted as the agent of UPL when he converted funds belonging to Benante.

We reverse.

The facts underlying this appeal are uncontroverted. Kobielak was licensed to sell life and disability insurance in the State of Indiana. He sold insurance products of various companies, including UPL. Benante contacted Kobielak after hearing his radio presentation concerning investment opportunities.

Benante advised Kobielak that her current investments were unsatisfactory because she had incurred stock market losses and was required to contend with excessive paperwork. Benante provided Kobielak with her tax records so that he could ascertain the extent of the assets available for liquidation and investment.

Kobielak offered Benante various financial services; he prepared Benante's tax returns, sold Benante a bag of silver, invested family funds through Dean Witter and procured a life insurance policy for Benante from Lafayette Life Insurance. ¹

Eventually, Benante liquidated an E.F. Hutton investment account and tendered the funds to Kobielak. Kobielak informed Benante that he would invest her funds in a UPL annuity called "Auto 7" when the interest rate payable thereon reached 9%. Pursuant to Kobielak's instructions, Benante executed two checks payable to "Kobielak and Associates" totalling $84,000.00. Kobielak advised Benante against entering "Auto 7" in the memorandum section of a check because the reference would be "confusing" since her funds would first be held in either a "mutual fund" or "money market account." Record, pp. 1004-7. Benante signed forms filled out by Kobielak and received a file folder marked "Auto 7."

Benante subsequently learned that Kobielak had not purchased a UPL annuity for her. She sought full restitution from Kobielak, but he returned only $10,000.00. Benante unsuccessfully sought to recover the balance from UPL. Ultimately, she brought a conversion action against both Kobielak and UPL. ²

At the conclusion of Benante's case-in-chief and at the conclusion of the defense, UPL moved for judgment on the evidence. UPL contended that the tortious conduct of an independent insurance agent who procures policies through various companies cannot be imputed to the insurer because he acts as the agent of the proposed insured. UPL's motions were denied.

The purpose of a motion for judgment on the evidence is to test the sufficiency of the evidence. City of Crawfordsville v. Michael (1985), Ind.App., 479 N.E.2d 102, 103, trans. denied. Where the issues tried are not supported by sufficient evidence or a verdict is clearly erroneous as contrary to the evidence, the court shall withdraw such issues from the jury and enter judgment thereon. Ind.Trial Rule 50(A). When the trial court considers a motion for judgment on the evidence, it must view the evidence in a light most favorable to the non-moving party. Judgment may be entered only if there is no substantial evidence or reasonable inference to be drawn therefrom to support an essential element of the claim. On appeal, we use the same standard of review as the trial court in determining the propriety of a judgment on the evidence. Dahlin v. Amoco Oil Corp. (1991), Ind.App., 567 N.E.2d 806, 810, trans. denied; Sipes v. Osmose Wood Preserving Co. (1989), Ind., 546 N.E.2d 1223, 1224.

Benante established by uncontroverted evidence that Kobielak converted her funds; the judgment against Kobielak is not challenged upon appeal. However, UPL is liable for the tortious conduct of Kobielak only if Kobielak was an agent of UPL acting within the actual or apparent scope of his authority. Vicarious liability will be imposed only where a principal has the right or power to control the conduct of the agent:

"The general rule that a principal is liable for the torts of his agent is not grounded on agency principles ... The tort liability is based on the employer and employee, rather than any agency, principle[.] ... [I]n our system of tort liability based upon fault, it is the right of the party sought to be held liable to control the conduct of the person who actually caused the injury that creates the necessary nexus."

Dallas Moser Transporters, Inc. v. Ensign (1992), Ind.App., 594 N.E.2d 454, 456-57, reh. denied.

Generally, an insurance agent representing several companies is considered to be an insurance broker. An insurance agent or broker who undertakes to procure insurance for another is an agent of the proposed insured. Stockberger v. Meridian Mut. Ins. Co. (1979), 182 Ind.App. 566, 395 N.E.2d 1272, 1278-79. Accord: Anderson Mattress Co., Inc. v. First State Ins. Co. (1993), Ind.App., 617 N.E.2d 932, 939, trans. denied; Craven v. State Farm Mut. Auto. Ins. Co. (1992), Ind.App., 588 N.E.2d 1294, 1296.

Indiana courts have consistently determined that an insurance broker becomes the agent of the insurer when an insurance policy is issued:

"[T]he Court of Appeals correctly observed that in Indiana when a broker makes application for insurance and the insurance policy is issued, the broker is the agent of the insurer and can bind it within the scope of his authority."

Aetna Ins. Co. of the Midwest v. Rodriguez (1988), Ind., 517 N.E.2d 386, 388, reh. denied.

"[A]n agent like Wren, who operates an independent insurance agency representing several insurers, is considered a broker.... In such a situation, the broker is normally deemed to be an agent of the buyer, not the insurer, and the insurer is not liable for the broker's tortious conduct. When, however, the 'broker makes application for insurance and the insurance policy is issued, the broker is the agent of the insurer and can bind it within the scope of his authority.' "

Callis v. State Auto. Ins. Co. (1991), Ind.App., 579 N.E.2d 129, 131, trans. denied (citations omitted).

Pursuant to a "general agent agreement," Kobielak was authorized to "solicit applications and collect first premiums for Authorized Policies and remit the premiums immediately to the Company (UPL)." Record, p. 830. UPL applications included a pre-printed directive to attach checks payable to "United Pacific Life."

However, the uncontroverted evidence discloses that Kobielak never applied for a UPL "Auto 7" annuity (or any other UPL product) on Benante's behalf. No checks payable to UPL were collected from Benante; no cash funds were tendered to UPL on Benante's behalf. No policy or annuity was ever issued by UPL for Benante. Thus, Kobielak remained the agent of Benante; UPL is not liable for his tortious conduct.

We reverse and remand with instructions to the trial court to enter judgment on the evidence in favor of UPL.

HOFFMAN, J., concurs and files separate opinion.

RUCKER, J., dissents and files separate opinion.

HOFFMAN, Judge, concurring.

I concur.

Here Kobielak was not only acting as a broker but also as a financial advisor. The money given to Kobielak was to purchase "Auto 7" in the future and was to be placed in a "mutual fund" or "money market account" in the interim. Kobielak was acting as an agent for Benante.

RUCKER, Judge, dissenting.

I respectfully dissent. Whether or not Kobielak was acting as an agent of UPL is a question of fact to be decided by the jury.

I agree with the majority that in general an insurance agent who represents several companies is considered a broker and thus his or her negligence may not be imputed to the insurer. Automobile Underwriters, Inc. v. Hitch (1976), 169 Ind.App. 453, 349 N.E.2d 271. However, this general proposition is not set in concrete. Rather, an insurance agent may nonetheless be considered the agent of a single insurance company even though he or she represents more than one company. The facts of each case must be examined. See Tynes v. Bankers Life Co. (1986), 224 Mont. 350, 360, 730 P.2d 1115, 1122 (agent who sold insurance for several different companies was an agent and not a broker with respect to company with whom he enjoyed a fixed or permanent relationship of more than thirty-seven years); Sorapuru v. Jeffers (1979), La.App., 378 So.2d 524, 526 (fact that agent could write insurance for more than one company was not conclusive as to question of his agency for defendant insurer; rather, evidence of agent's role in transaction at issue was sufficient to establish agency).

A "broker" is defined as one who acts as middleman between the insured and the insurer and who solicits insurance from the public under no...