Thomson v. Idaho Ins. Agency, Inc.

Decision Date30 November 1994
Docket NumberNo. 20340,20340
Citation126 Idaho 527,887 P.2d 1034
PartiesNeal 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
CourtIdaho Supreme Court

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.


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 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.


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.


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 as a matter of law." McCoy v. Lyons, 120 Idaho 765, 769, 820 P.2d 360, 364 (1991).

The basis of the Thomsons' suit against the respondents is their alleged negligent failure to procure increased uninsured and underinsured motorist coverage. To prove common law negligence, the Thomsons must establish four elements: (1) a duty, recognized by law, requiring the respondents to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the respondents' conduct and the resulting injury (proximate causation); and (4) actual loss or damage. Black Canyon Racquetball Club, Inc. v. Idaho First Nat'l Bank, 119 Idaho 171, 175-76, 804 P.2d 900, 904-05 (1991). This Court has held that nonfeasance by an insurance agent, i.e., the failure to procure insurance, gives rise to a tort action arising from the negligent breach of a professional duty to provide insurance. McAlvain v. General Ins. Co. of Am., 97 Idaho 777, 780, 554 P.2d 955, 958 (1976). In McAlvain, supra, we found that a person in the business of selling insurance holds himself out to the public as being experienced and knowledgeable in a field which is complex and specialized. Thus, this Court held that because normally, an insured will reasonably rely on the agent's expertise, if that agent performs services negligently to the insured's injury, the agent should be held liable for that negligence, as would an attorney, physician or other professional. Id.

In their summary judgment motion, the respondents argued that any legally recognized duty which may have been owed to the Thomsons was discharged. They claimed that because there were no disputed material factual issues with respect to the elements of duty and whether there was a breach of such duty, summary judgment was appropriate. The Thomsons responded by filing an affidavit of Fred A. Harris, a licensed insurance agent with twenty years experience in the insurance business. Harris essentially stated that, in his expert opinion, the respondents' duty in procuring the increased insurance was broader than that which they argued. The district court concluded that sufficient evidence existed in support of the Thomsons' allegation that a duty existed in this case. The court further found that material factual issues existed with respect to whether Keller breached that duty.

We agree with the district court that disputed factual issues exist with respect to the breach of duty issue and whether Keller conducted himself as a reasonable broker would have under like circumstances. Pursuant to McAlvain, supra, the Thomsons were entitled to rely on Keller to procure additional coverage because Keller was a professional who had particular skills, knowledge and expertise the Thomsons did not possess, and in whom a certain trust was placed. The record indicates that it is disputed as to the steps actually taken by Keller in attempting to procure the requested insurance. Darla Thomson claims that at no time did Keller inform her that he represented four other automobile insurance companies, and that no representative of respondent Idaho Insurance Agency made contact with the other companies on this issue. Keller, on the other hand, claims that he advised Thomson that none of the other carriers with which his agency worked would issue the requested coverages. Thus, triable disputed factual issues exist in this case as to whether Keller breached his duty to the Thomsons. Summary judgment therefore should have been denied for this finding alone. The district court, however, erroneously granted the motion on other grounds which we discuss below.


Although the district court ruled that there were disputed material factual issues regarding the elements of duty and breach, the court concluded that the Thomsons had not shown sufficient material facts...

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