Dehayes Group v. Pretzels, Inc., et al

 
FOR PUBLICATION         
            
ATTORNEYS FOR APPELLANT:            ATTORNEYS FOR APPELLEE
                            SIMERMAN CONSTRUCTION CO., INC.
 
C. ERIK CHICKEDANTZ                DANE L. TUBERGEN
JEFFREY P. SMITH                 MARK W. BAEVERSTAD
Hawk, Haynie, Kammeyer & Chickedantz        Hunt Suedhoff Kalamaros LLP
Fort Wayne, Indiana                    Fort Wayne, Indiana

                             ATTORNEYS FOR APPELLEE
                            PRETZELS, INC.:

                             MARTIN P. DUFFEY
                            Cozen O'Connor
                            Philadelphia, Pennsylvania

                             SCOTT T. NIEMANN
                            Fletcher & Niemann
                            Fort Wayne, Indiana

                             ATTORNEY FOR APPELLEE
                            SHAMBAUGH & SONS, INC.:

                             CALVERT S. MILLER
                            LARRY L. BARNARD
                            Miller Carson Boxberger & Murphy LLP
                            Fort Wayne, Indiana

                             ATTORNEY FOR AMICUS CURIAE
                            INDEPENDENT INSURANCE AGENTS
                            OF INDIANA:

                             RICHARD S. PITTS
                             Drewry Simmons Pitts & Vornehm
                            Indianapolis, Indiana
_____________________________________________________________________________
    
IN THE COURT OF APPEALS OF INDIANA

THE DEHAYES GROUP, ) ) Appellant-Defendant, ) ) vs. ) No. 90A04-0209-CV-429 ) PRETZELS, INC., ) ) Appellee-Plaintiff, ) ) vs. ) ) SHAMBAUGH & SONS, INC., and ) SIMERMAN CONSTRUCTION ) COMPANY, INC., ) ) Appellees-Defendants. )

 
APPEAL FROM THE WELLS SUPERIOR COURT
The Honorable Everett E. Goshorn, Judge
Cause No. 90D01-9811-CP-114
 

 
April 17, 2003
 
OPINION - FOR PUBLICATION

BAKER, Judge
 
    Appellant-defendant DeHayes Group (DeHayes) appeals the trial court's denial of its summary judgment motion in a negligence action by appellee-plaintiff Pretzels, Inc. (Pretzels) and appellees-defendants Shambaugh & Sons, Inc. (Shambaugh) and Simerman Construction Company, Inc. (Simerman). Specifically, DeHayes argues that the trial court erred in holding that DeHayes owed a duty to inform Pretzels of the reason that an insurer declined to extend coverage. Concluding that DeHayes owed no duty to inform Pretzels of the reason why coverage was refused, we reverse and remand this cause to the trial court for entry of summary judgment in favor of DeHayes.
FACTS
    The facts most favorable to the appellees reveal that DeHayes has served as an independent insurance broker See footnote for Pretzelsa manufacturer, packer, and shipper of pretzel snackssince 1986. DeHayes's responsibility was to procure appropriate insurance coverage to protect Pretzels from casualty and business losses. In order to get the best rates, Pretzels asked various insurers to re-bid on its insurance business every two years. Thus, every two years, DeHayesas well as other insurance brokerssolicited bids from insurance companies and presented the bids to Pretzels.
Throughout the 1990s, Commercial Union provided Pretzels property and casualty insurance. DeHayes earned a percentage of the premiums paid by Pretzels as a commission for its services. DeHayes's commissions were paid by Commercial Union. Pretzels paid DeHayes nothing.
During the fall of 1995, Pretzels's insurance business was up for re-bidding. Steven Reith, a DeHayes employee, was charged with requesting bids from insurance companies. Reith sought a quote from Amerisure Insurance Company (Amerisure). As a result, Amerisure sent a loss control expert, Deborah Morshead, to inspect Pretzels's facilities in December 1995. During her inspection, Morshead noted that Pretzels stored its plastic materials on racks that were more than four feet tall. Morshead also observed that the sprinkler system was possibly inadequate for the amount of corrugated boxes and wooden pallets in Pretzels's warehouse. As a result of Morshead's evaluation, Joseph Buscemian Amerisure underwriterdecided not to quote insurance for Pretzels. Buscemi sent DeHayes a three-sentence facsimile statement wherein he opined that the sprinkler system had an inadequate water supply.
Amerisure's failure to quote insurance notwithstanding, Pretzels received quotes from at least eight other insurance companies acting through five brokers, including DeHayes. Pretzels chose Commercial Union's policy, which became effective on February 9, 1996.
On December 24, 1997, a blaze consumed Pretzels's facilities. Commercial Union paid Pretzels a total of $25,031,220 of which $18,543,720 represented property loss and $6,487,500 represented lost business income. On December 1, 1998, Commercial Union filed a complaint on behalf of Pretzels under its right of subrogation against Shambaugh, Simerman, and two other defendants who eventually were dismissed from this case.See footnote Commercial Union asserted that the defendants negligently built Pretzels's facilities, thereby creating a risk of fire. On August 15, 2000, Shambaugh, joined by the other defendants, filed a motion to amend its answer to assert a nonparty defense against DeHayes. Commercial Union resisted Shambaugh's motion, asserting that DeHayes owed no duty to inform Pretzels of inadequacies in its sprinkler system. The trial court granted Shambaugh's motion to amend on October 30, 2000. On July 5, 2001, Commercial Unionwith court permissionamended its complaint to name DeHayes as a party-defendant, alleging that DeHayes had a duty to notify Pretzels of any deficiencies in Pretzels's sprinkler system.
On February 22, 2002, DeHayes filed a motion for summary judgment. DeHayes argued that it had no duty to inform Pretzels of Amerisure's reason for not providing coverage inasmuch as its relationship with Pretzels was only one of procuring bids for insurance and passing those bids on to Pretzels. Such a relationship, argued DeHayes, did not raise a duty to advise Pretzels about loss prevention. On May 20, 2002, the trial court denied DeHayes's motion and certified its order denying summary judgment for interlocutory appeal. We accepted jurisdiction over the case, and DeHayes now appeals.
DISCUSSION AND DECISION
I. Standard of Review
    We first note that the party appealing from a denial of summary judgment must persuade the court that the denial of summary judgment was erroneous. Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 908 (Ind. 2001). Summary judgment is appropriate only if the pleadings and designated evidence show that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ind. Trial Rule 56(C). On a motion for summary judgment, all doubts as to the existence of material issues of fact must be resolved against the moving party. Owens Corning, 754 N.E.2d at 909.
II. Duty Owed to Pretzels
    DeHayes argues that summary judgment should have been entered in its favor because it owed Pretzels no duty other than procuring insurance coverage. Commercial Union counters that sharing "all material knowledge applicable to the risk" being insured against is part of the standard duty that an insurance broker owes to the insured. Pretzels's Br. p. 10.
The issue of whether a duty is owed to the plaintiff by the defendant is a question of law for the trial court. Peak v. Campbell, 578 N.E.2d 360, 361 (Ind. 1991). An insurance broker, like DeHayes, has a "duty to exercise reasonable care, skill, and good faith diligence in obtaining insurance." Wyrick v. Hartfield, 654 N.E.2d 913, 914 (Ind. Ct. App. 1995) (emphasis in original). Here, it is undisputed that DeHayes successfully obtained insurance for Pretzels. Pretzels's Br. p. 2.
An insurance broker's duty may be greater than merely procuring insurance if "‘an intimate long term relationship between the parties or some other special circumstance'" exists. Id. (quoting Craven v. State Farm Mut. Auto. Ins. Co., 588 N.E.2d 1294, 1296 (Ind. Ct. App. 1992)). This court has held that:
Some of the factors relevant to a determination of whether a long term relationship or special circumstance exists include (1) the broker's exercise of broad discretion in servicing the insured's needs; (2) the broker's counseling of the insured concerning specialized insurance coverage; (3) the broker's declaration that he is a highly-skilled insurance expert, coupled with the insured's reliance upon the expertise; and (4) the broker's receipt of compensation, above the customary premium paid, for expert advice provided.
 
Id.
    In Wyrick, the plaintiff asked the defendant, an insurance broker, to obtain quotes for the purchase of a particular type of annuity. Hartfield, the defendant, obtained the quote requested, and Wyrick made the purchase. Later, the insurance company was forced into conservatorship, and Wyrick's benefits from the annuity were reduced. Wyrick brought a claim against Hartfield, claiming that Hartfield breached a duty to advise him concerning the procurement of the annuity. The trial court granted Hartfield's motion for summary judgment, and we affirmed, holding that "Wyrick and Hartfield clearly did not have a long-term relationship which would create a duty to advise." Id. at 915. Specifically, we noted that Wyrick engaged in three transactions with Hartfield over a thirteen-year period. Id. Hartfield did not have broad discretion with respect to Wyrick's needs, as he "was not asked, nor did he undertake, to provide analysis or periodic review of" Wyrick's needs. Id. We also noted that the annuity was of a type requested by Wyrick, not Hartfield. Id. Finally, we observed that Hartfield was not paid a separate fee to provide advice. Id.
Here, the evidence showed that DeHayes's relationship with Pretzels began in 1986. Appellant's App. p. 267. However, Pretzels did not rely exclusively on DeHayes to obtain insurance coverage. DeHayes and other insurance brokers obtained insurance quotes for Pretzels, which Pretzelsthrough general manager Tom Andersonthen either accepted or declined. Appellant's App. p. 133-34. Just as the plaintiff in Wyrick ordered his broker to obtain a price quote, Pretzels ordered its insurance brokers to solicit insurance quotes. The final decision, however, was made by Pretzels. These facts do not show that DeHayes possessed "broad discretion" with respect to Pretzels's needs. In essence, DeHayes's actions were limited to obtaining insurance quotes for Pretzels.
The record is also devoid of any evidence showing that DeHayes counseled Pretzels "concerning specialized insurance coverage." Id. While DeHayes advised Pretzels to increase its insurance limits in 1996, DeHayes's advice was not about "customized" insurance but merely reflected the fact that additional buildings now existed at Pretzels's manufacturing facility. Appellant's App. p. 136. Moreover, the insurance requested by Pretzels was standard casualty and property insurance, not " a type customized to [Pretzels's] needs." Id.
Nowhere has Pretzels claimed that DeHayes titled itself "a highly-skilled insurance expert." Id. Moreover, the final decision on which insurance policy to buy was made by Pretzels's manager. Appellant's App. p. 134.
Finally, the uncontroverted evidence shows that DeHayes was compensated only by Commercial Union on a commission basis. Appellant's App. p. 136. Pretzels paid no "compensation, above the customary premium paid, for expert advice." Id. In sum, Pretzels's evidence failed to show the special relationship that is required for a heightened duty to be placed on an insurance broker.
Therefore, DeHayes's motion for summary judgment should have been granted. Thus, we reverse and remand to the trial court with instructions to enter summary judgment for DeHayes.
Reversed and remanded.
SULLIVAN, J., and DARDEN, J., concur.

Footnote: We thank amicus Independent Insurance Agents of Indiana, Inc., for its discussion of terminology used in the insurance industry. Its brief assisted the court tremendously in understanding those terms unique to the insurance industry.
Footnote: Though the caption to this case lists Pretzels as the plaintiff, the record indicates that Commercial Union reimbursed Pretzels for its losses as per the insurance contract and proceeded under its right of subrogation. Appellant's App. p. 136. Thus, we identify Commercial Union as the party pursuing the litigation.