Henry v. American Church Group of Arizona, LLC, 040220 AZAPP2, 2 CA-CV 2019-0042

Docket Nº:2 CA-CV 2019-0042
Opinion Judge:STARING, PRESIDING JUDGE
Party Name:Brooke Henry, surviving spouse of Jason Henry, on her own behalf and as Conservator on behalf of Isaiah and Nathanael Henry;Barbara Harrison, surviving biological mother of Jason Henry; and Robert Henry, surviving biological father of Jason Henry, Plaintiffs/Appellants, v. American Church Group of Arizona, LLC, an Arizona limited liability...
Attorney:The Leader Law Firm, Tucson By John P. Leader Counsel for Plaintiffs/Appellants Brooke Henry and Barbara Harrison Zachar Law Firm PC, Phoenix By Christopher J. Zachar Counsel for Plaintiff/Appellant Robert Henry The Hassett Law Firm P.L.C., Phoenix By Myles P. Hassett, Jamie A. Glasser, and David...
Judge Panel:Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.
Case Date:April 02, 2020
Court:Court of Appeals of Arizona
 
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Brooke Henry, surviving spouse of Jason Henry, on her own behalf and as Conservator on behalf of Isaiah and Nathanael Henry;Barbara Harrison, surviving biological mother of Jason Henry; and Robert Henry, surviving biological father of Jason Henry, Plaintiffs/Appellants,

v.

American Church Group of Arizona, LLC, an Arizona limited liability company; Kevin Norton, an individual; Desert View Insurance of Arizona, LLC, Defendants/Appellees.

No. 2 CA-CV 2019-0042

Court of Appeals of Arizona, Second Division

April 2, 2020

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pima County No. C20180329 The Honorable Janet C. Bostwick, Judge

The Leader Law Firm, Tucson By John P. Leader Counsel for Plaintiffs/Appellants Brooke Henry and Barbara Harrison

Zachar Law Firm PC, Phoenix By Christopher J. Zachar Counsel for Plaintiff/Appellant Robert Henry

The Hassett Law Firm P.L.C., Phoenix By Myles P. Hassett, Jamie A. Glasser, and David R. Seidman Counsel for Defendants/Appellees

Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.

MEMORANDUM DECISION

STARING, PRESIDING JUDGE

¶1 Brooke Henry, Barbara Harrison, and Robert Henry (collectively "the Henrys") appeal the trial court's dismissal of their claims against American Church Group of Arizona, LLC, Kevin Norton, and Desert View Insurance of Arizona, LLC (collectively "ACG"). We affirm.

Factual and Procedural Background

¶2 We review the dismissal of a complaint under Rule 12(b)(6), Ariz. R. Civ. P., de novo. Coleman v. City of Mesa, 230 Ariz. 352, ¶ 7 (2012). Ordinarily, we look only to the pleading itself and "assume the truth of the well-pled factual allegations and indulge all reasonable inferences therefrom." Cullen v. Auto-Owners Ins., 218 Ariz. 417, ¶ 7 (2008). "We will affirm the dismissal if, as a matter of law, the plaintiff is not 'entitled to relief under any interpretation of the facts susceptible of proof.'" Brittner v. Lanzilotta, 246 Ariz. 294, ¶ 4 (App. 2019) (quoting Fid. Sec. Life Ins. v. Ariz. Dep't of Ins., 191 Ariz. 222, ¶ 4 (1998)).

¶3 In January 2016, Jason Henry, while driving a bus for his employer Casas Church ("the Church"), was fatally injured in an accident with another vehicle. The other motorist involved in the accident was insured under a $100, 000 liability policy. The Henrys' damages far exceed that amount.

¶4 Before the accident, ACG 1had procured two insurance policies for the Church from Brotherhood Mutual Insurance Company ("BMIC"): a business automobile policy that provided $1, 000, 000 in underinsured motorist (UIM) coverage and an excess liability policy with a limit of $5, 000, 000. The Church was the named insured on both policies.

¶5 In June 2016, BMIC informed the Henrys that a total of $6, 000, 000 in coverage was available under the UIM and excess liability policies. Two months later, BMIC told the Henrys that the only coverage available was the $1, 000, 000 UIM policy and that excess coverage was not available. The Henrys filed suit against BMIC, alleging claims for breach of contract and insurance bad faith, and seeking a declaration of $6, 000, 000 in coverage. The Henrys' claims in that suit were subject to arbitration, and a panel of arbitrators subsequently decided that only $1, 000, 000 in coverage was available to the Henrys.

¶6 As a result, the Henrys filed the present suit against ACG, alleging professional negligence and negligent misrepresentation for failure to recommend and ensure that the Church obtain uninsured motorist and UIM policies with limits in amounts matching its excess liability limit. ACG moved to dismiss the Henrys' complaint pursuant to Rule 12(b)(6), arguing that ACG "had no duty to offer additional UIM coverage" and that it owed no duty of care to the Henrys.

¶7 The trial court granted ACG's motion to dismiss after concluding that, although Jason was an "insured" under the Church's policies, he was not a "named insured" and...

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