Insurance Co. of North America v. Superior Court In and For County of Santa Cruz
| Decision Date | 05 September 1989 |
| Docket Number | No. 2,CA-SA,2 |
| Citation | 162 Ariz. 499,784 P.2d 705 |
| Parties | INSURANCE COMPANY OF NORTH AMERICA, d/b/a INA Insurance, a Delaware Corporation, Petitioner/Cross-Real Party In Interest/Cross-Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF SANTA CRUZ; Honorable Roberto C. Montiel, a Judge thereof, Respondents, and Ernesto VILLAGRANA, an unmarried man; Clyde Swaringen and Jane Doe Swaringen, husband and wife, Real Parties in Interest/Cross-Petitioners/Cross-Real Parties in Interest. 89-0054. |
| Court | Arizona Court of Appeals |
The petition and "counter-petitions" for special action in this case were taken from the orders of the trial court granting and denying summary judgment in response to motions filed by both parties. Because our disposition will serve to terminate this litigation, we accept jurisdiction and grant relief on the petition of defendant Insurance Company of North America (INA). Wingate v. Gin, 148 Ariz. 289, 714 P.2d 459 (App.1985); Church of Jesus Christ of Latter Day Saints v. Superior Court, 148 Ariz. 261, 714 P.2d 431 (App.1985).
Plaintiff/real party in interest Ernesto Villagrana purchased an INA automobile insurance policy through Clyde Swaringen, an independent insurance agent, on December 21, 1983. The policy provided $100,000 single limit coverage for bodily injury and property damage, and $30,000 single limit uninsured motorist coverage. On March 16, 1984, Villagrana was injured in an accident with several uninsured motorists. He made a claim on his insurance policy and ultimately was paid $30,000 pursuant to a settlement release and trust agreement executed in January of 1985. Villagrana was represented by counsel during the negotiation and settlement of this claim.
On April 20, 1988, Villagrana filed suit against INA and Swaringen, alleging in three counts negligence, negligent breach of a statutory duty and breach of contract. The factual basis for all three counts was Villagrana's claim that Swaringen and INA had failed to comply with the requirements of A.R.S. § 20-259.01(B), which provides in pertinent part:
B. Every insurer writing automobile liability or motor vehicle liability policies ... shall also make available to the named insured thereunder and by written notice offer the insured and at the request of the insured shall include within the policy uninsured motorist coverage which extends to and covers all persons insured under the policy, in limits not less than the liability limits for bodily injury or death contained in the policy....
Villagrana alleged that, at the time his policy was issued, no written offer was made to provide uninsured motorist coverage in the amount of his liability coverage ($100,000), and that he was damaged by the defendants' failure to comply with the statute.
Villagrana then filed a motion for partial summary judgment as to liability on counts two and three, which the trial court denied. INA filed a counter-motion seeking judgment on the entire complaint on the ground that all three counts were based on a liability created by statute and were therefore barred by the expiration of the one-year statute of limitations. A.R.S. § 12-541(3). The trial court granted the motion as to count two (negligent breach of statutory duty) but denied it as to the other counts.
INA sought special action relief in this court, contending that the trial court acted without or in excess of its authority in denying its summary judgment motion as to counts one and three. Villagrana filed a "counter-petition," challenging the grant of summary judgment on count two and seeking affirmative relief on his motion as to liability on counts two and three. INA has also filed a "counter-petition," arguing that it is entitled to judgment on liability as a matter of law. Because of our disposition of INA's petition and Villagrana's counter-petition, we need not address the issues raised in INA's counter-petition.
INA contends in essence that, regardless of the label attached to the various counts in Villagrana's complaint, his basic claim is that the defendants failed to comply with the duty created by § 20-259.01(B) to give Villagrana written notice of the availability of additional uninsured motorist coverage at the time the liability policy was issued. This duty, INA argues, is purely statutory, and its breach gives rise, therefore, solely to a liability created by statute. Because Villagrana's suit was not filed within one year after it accrued, it concludes, it must be dismissed. While we agree that the trial court erred in refusing to grant INA's motion, we do not entirely agree with INA's reasoning.
In order for the one-year statute of limitations to apply, the applicable statute must either create a cause of action which did not exist at common law or alter the elements of a common law action. See, e.g., Murdock v. Balle, 144 Ariz. 136, 696 P.2d 230 (App.1985); Day v. Schenectady Discount Corp., 125 Ariz. 564, 611 P.2d 568 (App.1980); Murry v. Western American Mortgage Co., 124 Ariz. 387, 604 P.2d 651 (App.1979). Count one of Villagrana's complaint sets forth a claim in common law negligence. Villagrana alleges that
SWARINGEN held himself out to the Plaintiff and the public as possessing special knowledge, skill and/or expertise as an insurance agent, knowledgeable in the field of insurance
and that he
negligently breached his duty to the Plaintiff in that he failed to perform his activities according to the standard of his profession by continually failing to advise the Plaintiff as to the availability of increased limits of uninsured motorist protection and underinsured motorist protection, and failed to explain to the Plaintiff the benefits of increasing the limits of an [sic] uninsured and underinsured motorist protection.
The basis for his claim is not simply that Swaringen failed to give him written notice of the availability of increased uninsured motorist coverage, but also that he failed to advise him of the benefits of such coverage.
Our supreme court has held that a licensed insurance agent must exercise reasonable care, skill and diligence in carrying out his duties in procuring insurance.
The principle involved here is simply that a person who holds himself out to the public as possessing special knowledge, skill or expertise must perform his activities according to the standard of his profession. If he does not, he...
To continue reading
Request your trial
-
In re Lowe's Cos. Inc. Fair Labor Standards Act (FLSA) & Wage Hour Litig.
...unknown, but the statute of limitations is not tolled if only the legal theory is not yet understood. See Ins. Co. of N. Am. v. Superior Court, 784 P.2d 705, 708 (Ariz. Ct. App. 1989), vacated on other grds., 800 P.2d 585 (Ariz. 1990) ("The discovery rule applies to the facts which give ris......
-
Walk v. Ring
...know of lawyer's negligence); Kenyon, 142 Ariz. at 73, 688 P.2d at 965 (medical malpractice); Insurance Co. of N. Am. v. Superior Court, 162 Ariz. 499, 502, 784 P.2d 705, 708 (App.1990) (negligence of insurance agent); Arizona Mgmt. Corp. v. Kallof, 142 Ariz. 64, 66, 688 P.2d 710, 712 (App.......
-
Insurance Co. of North America v. Superior Court In and For County of Santa Cruz
...Insurance Company of North America (INA), seek review of the court of appeals' decision in Insurance Company of North America v. Superior Court, 162 Ariz. 499, 784 P.2d 705 (Ct.App.1989). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and granted review pursuant to 17B A.R.S.......
-
In re Bridgestone/Firestone, Inc.
...Cir. 1985), is a federal case applying Arizona law which was decided prior to Anson. The second, Insurance Co. of North America v. Superior Court, 162 Ariz. 499, 784 P.2d 705 (App.1989), vacated on other grounds, 166 Ariz. 82, 800 P.2d 585 (1990), hinges on the difference between having kno......