Thomson v. Idaho Ins. Agency, Inc., No. 20340

• Court: United States State Supreme Court of Idaho
• Writing for the Court: SILAK; McDEVITT
• Citation: 126 Idaho 527,887 P.2d 1034
• Parties: Neal THOMSON and Darla Thomson, husband and wife, Plaintiffs-Appellants, v. IDAHO INSURANCE AGENCY, INC., and Bob Keller, Defendants-Respondents. Coeur d'Alene, April 1994 Term
• Docket Number: No. 20340
• Decision Date: 30 November 1994

Page 1034

887 P.2d 1034 126 Idaho 527 Neal THOMSON and Darla Thomson, husband and wife, Plaintiffs-Appellants,
v.
IDAHO INSURANCE AGENCY, INC., and Bob Keller, Defendants-Respondents. No. 20340. Supreme Court of Idaho, Coeur d'Alene, April 1994 Term.
Nov. 30, 1994.
Rehearing Denied Jan. 26, 1995.

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[126 Idaho 528] Michael J. Verbillis, Coeur d'Alene, for appellants.

Elam & Burke, P.A., Boise, for respondents. Jeffery J. Ventrella argued.

SILAK, Justice.

This is an appeal from an order granting summary judgment in favor of an insurance agency and its majority shareholder which had been sued for negligent failure to procure insurance, and from an order denying motions to amend the judgment, reconsideration and for relief under I.R.C.P. 60(b). We vacate the order granting summary judgment, and reverse and remand this case for further proceedings consistent with this opinion.

I.

FACTS AND PROCEDURAL BACKGROUND

In August 1989, the minor child of the Appellants, Neal and Darla Thomson (Thomsons), was seriously injured in an automobile collision caused by an uninsured drunk driver. The child suffered severe injuries, including a brain stem injury. At the time this appeal was filed, the Thomsons had allegedly incurred approximately $245,000 in medical expenses relative to the child's injuries.

Prior to the 1989 accident, the child had been injured in an accident involving an uninsured motorcyclist in 1986. At that time the Thomsons' uninsured motorist coverage carried a $100,000 limit of liability. At the conclusion of the prosecution of that uninsured claim, the Thomsons were informed by their counsel that it would be prudent to increase their uninsured and underinsured motorist coverage to $500,000.

In early 1989, Darla Thomson communicated this request to the Respondents Idaho Insurance Agency Inc. and Bob Keller (respondents or Keller), with whom she and her husband had done business for many years. Keller is the majority shareholder and secretary/treasurer of the respondent insurance agency and is a licensed agent. Several days later, Mrs. Thomson contacted Keller to find out the status of her request. Keller stated that she would be receiving a letter from the insurer, North Pacific Insurance Company, that it declined to increase the uninsured and underinsured motorist coverage because of the 1986 claim. Mrs. Thomson then allegedly asked Keller if anything else could be done regarding her request for increased coverage. Keller replied in the negative and told her that she should stay with the incumbent coverage. Mrs. Thomson claims that at no time during this conversation did Keller inform her that he represented four other automobile liability insurance companies, nor did he inform her that if the family wished to obtain higher insurance limits, he could refer them to another insurance agency. The respondents claim that in the weeks and months following this telephone conversation, the Thomsons never again voiced this request. They allege that the Thomsons accepted the coverages as they existed and never "shopped around" with a different agency as they had in the past. The second accident involving their son occurred approximately eight months later.

The Thomsons sued the respondents, alleging that Keller had been negligent by failing to increase their existing automobile policy's uninsured and underinsured coverages from $100,000 to $500,000, and that this failure left them inadequately compensated following their son's accident in 1989.

The respondents moved for summary judgment arguing that there was a lack of evidence in the record showing that Keller or his agency owed a duty to the Thomsons, or, if such duty existed, that they breached any such duty. Thereafter, the district court entered an order granting the respondents' motion for summary judgment. Although the court found there was sufficient evidence to support the allegation that a duty existed in this case, and that there were material factual issues in dispute as to whether a breach

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[126 Idaho 529] had occurred, it concluded that the Thomsons had not carried their burden regarding proximate causation, and granted the respondents' summary judgment motion on this ground.

The Thomsons then filed a motion for order amending judgment, motion for reconsideration, and motion for relief under I.R.C.P. 60(b). The district court denied the motions and entered summary judgment for respondents. The Thomsons appeal.

II.

ISSUES ON APPEAL

1. Whether there were material factual issues in dispute, rendering summary judgment improper.

2. Whether the trial court, in ruling on the summary judgment motion, should have considered issues not raised in the movant's briefing.

3. Whether the trial court should have granted relief under Rule 60(b) I.R.C.P. and extended to appellants notice and an opportunity to be heard before considering an issue not raised by respondents, but utilized by the trial court in disposing of this cause in summary fashion.

III.

ANALYSIS

A. MATERIAL DISPUTED FACTUAL ISSUES REMAIN IN THIS CASE, RENDERING SUMMARY JUDGMENT IMPROPER.

As a preliminary matter, we note our standard of review. In an appeal from an order of summary judgment, this Court's standard of review is the same as the standard used by the district court in ruling on a motion for summary judgment. Farm Credit Bank of Spokane v. Stevenson, 125 Idaho 270, 272, 869 P.2d 1365, 1367 (1994); East Lizard Butte Water Corp. v. Howell, 122 Idaho 679, 681, 837 P.2d 805, 807 (1992). All disputed facts are to be construed liberally in favor of the non-moving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the non-moving party. Bonz v. Sudweeks, 119 Idaho 539, 541, 808 P.2d 876, 878 (1991). Summary judgment is appropriate if "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment...