Filed 11/24/20 Worden v. Farmers Fire Ins. Exchange CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
STEPHEN F. WORDEN,
Plaintiff and Appellant,
A156876
v.
FARMERS FIRE INSURANCE (Sonoma County
EXCHANGE et al., Super. Ct. No. SCV-26123)
Defendants and Respondents.
After Stephen F. Worden’s second home at Sea Ranch suffered serious
fire damage, he learned the cost to rebuild exceeded the limits of his property
insurance. He filed the instant action against his insurance company and
agent, alleging they breached a duty to ensure that he had full replacement
cost coverage. The trial court ruled defendants owed Worden no such duty
and granted their motion for summary judgment. We affirm.
BACKGROUND
Worden built a second home at Sea Ranch in 1972.
Almost 44 years later, in 2016, the back half of the house burned, resulting in
extensive damage. Worden consulted a local contractor who told him
rebuilding would cost approximately $663,000 to $688,500. Worden’s insurer,
1
Farmers Insurance Exchange, paid out his policy limits—totaling $339,577.1
Worden sued, claiming his insurance agents and Farmers owed him a duty to
ensure the policy limits would cover full replacement cost.
The Operative Complaint
Worden eventually filed a second amended complaint alleging causes of
action for negligent failure “to obtain adequate insurance” coverage and for
negligent misrepresentation as to the adequacy of the coverage on the Sea
Ranch home.2 (Capitalization omitted.)
In connection with both causes of action, Worden alleged he had a “long
term special relationship” with Matthew Hague Insurance Agency—initially
obtaining an insurance policy through Matthew Hague’s father, and after he
passed away, continuing to procure insurance through Matthew. Worden
claimed he “specifically requested that Hague provide adequate insurance
coverage” for his Sea Ranch home, that Hague both “assured [him] that he
would always obtain adequate insurance coverage for his needs” and “held
himself out as an expert regarding appropriate insurance coverage for
Worden’s needs,” and as a result, Worden “relied on Hague to procure
adequate insurance coverage for his needs.” Worden maintained he had “no
experience or knowledge whatsoever regarding the cost of replacement” and
“totally relied” on defendants “to obtain adequate fire insurance coverage in
the event of a fire.” Worden further asserted defendants had a “duty to
review the coverage annually to determine if it was adequate.”
1 This included $261,000 for the “Coverage A—Dwelling” limit, $13,050
for the “Coverage A—Debris Removal” limit, and $65,527.89 “for the debris
removal estimated cost up to Mr. Worden’s Extended Replacement Cost
policy limits of $65,250 plus his additional Coverage B debris removal limits.”
2Worden also alleged, but later abandoned, a cause of action for
reformation of contract.
2
The Motion for Summary Judgment
Defendants’ Motion
Defendants moved for summary judgment on the ground they did not
owe Worden a legal duty “to recommend that he increase his policy limits”
and they “did not misrepresent the nature of [his] coverage,” but rather
“maintained the insurance coverage Plaintiff requested.”
The motion was supported by copies of the “[r]enewal [o]ffers” made
between 2007 and 2016.3 The offers consisted of a packet of documents,
including (a) a summary of the premium charges, (b) a “Declaration Page”
with an exceedingly brief description of the property and a summary of the
coverages, including the “Property” coverages, (c) a number of “Policy
Endorsements,” (d) a number of “Policy Notices,” and (e) an “Exchange
Update.” Defendants also submitted excerpts of Worden’s deposition
testimony, as well as a declaration by Hague.
Policy. The “Declaration Page” of the 2016 “Renewal Offer” of the
policy in effect at the time of the fire identified the limits for each of the
coverages, including “Property Coverage,” which, for the dwelling, totaled
$326,250.
The first three pages of the 2016 “Policy Notices” consisted of a
“California Residential Property Insurance Disclosure.” The first page of the
disclosure listed and defined the “Primary Forms of Residential Dwellings
3 Neither party had a copy of the original policy. And neither party
could identify when the policy was changed from a standard homeowner’s
policy to a commercial landlord policy. When Worden built the small, pre-
fabricated house, (he did so, himself, at a cost of about $50,000), he
anticipated using it in part as a rental. The policy had already been changed
to a landlord policy by the time Hague took over from his father as Worden’s
agent. The dwelling insurance provisions and limits, in any case, remained
the same.
3
Coverage”—“Actual Cash Value Coverage” (described as “the most limited
level of coverage”), “Replacement Cost Coverage,” “Extended Replacement
Cost Coverage,” “Guaranteed Replacement Cost Coverage”4 (described as “the
broadest level of coverage”), and “Building Code Upgrade Coverage.” The
first page also identified the coverage Worden had—“Extended Replacement
Cost Coverage”5 and “Building Code Upgrade Coverage.”6 Thus, the first
4 “Guaranteed Replacement Cost Coverage” is coverage that “covers
the full cost to repair or replace the damaged or destroyed dwelling for a
covered peril regardless of the dwelling limits shown on the policy
declarations page.”
5 “Extended Replacement Cost Coverage” is “intended to provide for
the cost to repair or replace the damaged or destroyed dwelling without a
deduction for physical depreciation. Many policies pay only the dwelling’s
actual cash value until the insured has actually begun or completed repairs
or reconstruction on the dwelling. Extended Replacement Cost provides
additional coverage above the dwelling limits up to a stated percentage or
specific dollar amount. See your policy for the additional coverage that
applies.”
The policy further explained in the Policy Notice pertaining to dwelling
reconstruction, that “[w]ith [Extended Replacement Cost Coverage] coverage
and subject to its provisions, we pay to repair or replace damage from a loss
under Coverage A up to an additional 25% or 50% of the Coverage A amount,
depending on which percentage options, if any, are available in your state for
your policy form. If your policy does not have this coverage, or if a higher
coverage limit is available, you may consider adding or increasing this
coverage for an additional premium. This coverage may provide an
additional layer of protection as your policy does not provide Guaranteed
Replacement Cost coverage.”
6 “Building Code Upgrade Coverage . . . covers additional costs to
repair or replace a dwelling to comply with the building codes and zoning
laws in effect at the time of loss or rebuilding. These costs may otherwise be
excluded by your policy. Meeting current building code requirements can add
significant costs to rebuilding your home. Refer to your policy or
endorsement for the specific coverage provided and coverage limits that
apply.”
4
page of the disclosure (as well as the Policy Notice concerning reconstruction
cost) notified Worden he did not have “Guaranteed Replacement Cost
Coverage,” and thus was not covered for “the full cost to repair or replace the
damaged or destroyed dwelling” and was insured for replacement only to the
extent of the policy limits.
Immediately under the list of the primary forms of coverage, the first
page of the residential disclosure also warned about the peril of being
underinsured. On the second page, the disclosure stated the coverage limit
should be high enough so the dwelling could be rebuilt and further advised
obtaining a rebuilding estimate “based on construction costs in your area.”7
The Policy Notices also included a notice about “Reconstruction Cost
and Your Coverage A (Dwelling) Amount,” which urged the insured to
“review this information carefully.” The notice commenced with the heading,
“Do You Think You Have Enough Coverage?” (Italics omitted.) There
followed an explanation stating: “When you first obtained your policy,
Farmers[] used an estimating program to calculate a reconstruction cost
estimate for you home. This was an estimate, not a guarantee of
reconstruction costs.” The new renewal limit was then listed, $261,000. The
warning went on to state: “It’s important to understand that reconstruction
cost is NOT the same as the market value of your home” and defined both
terms. It also directed Worden’s attention to the “information” about the
7 As is required by statute, the Policy Notices for prior years, “on an
every-other-year basis,” contained similar residential property insurance
disclosures. (Ins. Code, § 10102, subd. (d) [“Following the issuance of the
policy of residential property insurance, the insurer shall provide the
[residential property insurance] disclosure statement to the insured on an
every-other-year basis at the time of renewal.].) Accordingly, the disclosure
was provided in the Policy Notices for 2008, 2010, 2012, 2014, and 2016.
5
home section on the following page and asked that he advise Hague if any
changes were required to ensure the description was correct.8
Worden’s Deposition. Worden testified that when he originally
procured coverage for the Sea Ranch property, Hague’s father did not inspect
the home, but rather “took the information” Worden provided him “about the
house, the construction, what it was constructed of, the size, what was
included in it and then he gave me the offer of the policy.” The first year, and
every year thereafter, Worden “reviewed that policy and reviewed the limits.”
As far as he could tell, the policy limits “were correct.” Worden did not recall
what his original policy limits were, or what the limits were when Hague
took over from his father as Worden’s agent. Nevertheless, Worden claimed
the original policy limits were “right on the money.”
Worden continued his annual review when Hague took over as his
agent. Hague “would say the limits, the cost would go up because it had built
into the policy was a—I don’t know what you call it. Uhm, due to
construction costs and the market going up, these limits would go up,” which
he understood was “due to inflation.”
Worden admitted that from the time the Sea Ranch home was first
insured, until it burned, Worden never “sp[oke] with anyone” from the Hague
agency “about [his] insurance policy limits.” He also admitted that he never
asked Hague to inspect the property or obtained a replacement cost estimate
himself.
After the fire, Worden consulted a “local real estate person” and a “local
contractor,” both of whom told him “to replace the house as it was would be in
the neighborhood of around $600,000 dollars.”
8 The policy notices for prior years contained similar reconstruction
cost advisements.
6
Worden filed suit because he had “assumed” Hague and Farmers “were
the one[s] responsible for keeping me up to date on the, what I should be
insured up to.” He did not believe Hague “intentionally misled” him, but
according to Worden, Hague had told him the policy was “adequate coverage,”
which was the “wrong information” given that the property “was only insured
up to—what is it, only insured up to 326,000 dollars.”
Hague’s Declaration. Hague averred that Worden “never asked for
‘100% replacement cost’ coverage,’ ” never asked him “how the replacement
cost was calculated,” never asked him “to recalculate the replacement cost[s]”
for the Sea Ranch home, never asked him “to inspect his property,” and never
gave him “a specific dollar amount that he believed it would cost to repair his
property if it were completely damaged.” Farmers, on Hague’s behalf, sent
Worden an annual “renewal offer,” which reminded Worden to review his
coverages and limits, update or increase his limits as appropriate, and ask
his agent for a review of his policy—none of which Worden did.
Plaintiff’s Opposition
In his opposition, Worden acknowledged that in general, insurance
agents and insurance companies owe no duty to volunteer that an insured
“should procure additional or different insurance coverage.” He maintained,
however, this was not a case of a failure to recommend additional coverage
but rather, a case of “failure to deliver the agreed upon coverage.”9
Defendants’ Reply
In reply, defendants maintained that, contrary to Worden’s
characterization of his claim in his opposition as a “failure to deliver the
9 Worden also submitted a declaration from Bennett Bibel, the
president of a corporation “which acts as insurance analysts, counselors,
consultants, and risk managers.” Bibel proffered several opinions, to which
defendants interposed multiple objections, which the trial court sustained.
7
agreed upon coverage,” the case had been pled as a “ ‘failure to recommend
adequate coverage’ case.” They asserted they “owed no duty to Plaintiff as a
matter of law to recommend higher policy limits, to increase his policy limits,
or to advise him regarding the sufficiency of his limits.” They further
maintained Worden’s negligent misrepresentation claim failed because
Worden “cannot prove there was a misrepresentation.”
Trial Court’s Ruling
The trial court ruled defendants “did not owe a legal duty to Plaintiff to
recommend that he increase his insurance policy limits,” the proffered
evidence was insufficient to show a heightened duty to recommend higher
policy limits, and defendants “did not misrepresent the nature of Plaintiff’s
coverage.”
With respect to the negligence claim, the court pointed out Worden
admitted his insurance was adequate when procured, but, was complaining
that it became inadequate over the course of 44 years. Hague “did not,”
however, “owe Plaintiff a duty of care to make unsolicited recommendations
about Plaintiff’s policy limits,” which Worden himself admitted he reviewed
and “continued to accept the coverage as written. This is not an instance in
which Plaintiff ever requested 100% replacement coverage or even an
increase in policy limits. Rather, Plaintiff here admits he just assumed the
Worden has not challenged any of the court’s rulings and thus has waived
any evidentiary issue on appeal. (See Lopez v. Baca (2002) 98 Cal.App.4th
1008, 1014–1015 [Where a plaintiff does not challenge the superior court’s
ruling sustaining a moving defendant’s objections to evidence offered in
opposition to the summary judgment motion, “any issues concerning the
correctness of the trial court’s evidentiary rulings have been waived.
[Citations.] We therefore consider all such evidence to have been “properly
excluded.”].) Because the court’s rulings stripped Bibel’s declaration of any
significant substance, we do not discuss it further.
8
policy limits were adequate, never conducted any assessment of rebuilding
costs as specifically recommended in the notices of policy renewal and never
requested that Hague inspect the property.”
The court also ruled the length of Worden’s insurance relationship with
the Hagues was “insufficient to establish a heightened duty” and that
Worden had failed to raise any issue of material fact that Hague had “held
himself out as an expert on the cost of rebuilding the home.” Nor, said the
court, was there any heightened duty “to respond to his special inquires,” a
claim Worden “[did] not allege” in his second amended complaint and which
he claimed was supported because a “few times before 2016 he told Hague
that the description of the home was erroneous in identifying the
construction material.” Even assuming Worden had asked Hague’s father to
correct several errors in the description of the home—such as that the siding
material was masonry (when, in fact, it was wood), that there were two
(rather than three) stories, and that there was a concrete slab (rather than a
concrete foundation)—and further assuming this “was ‘a request or inquiry
by the insured for a particular type or extent of coverage,’ it fail[ed] to
support a heightened duty of care.”
As for the negligent misrepresentation cause of action, the court ruled
Worden’s allegation that Hague “negligently misrepresented to him that he
would obtain adequate insurance coverage” was “too vague to constitute
actionable negligence.” Furthermore, there was “no evidence of any
misrepresentation,” rather, it appeared Hague gave an “accurate
representation of how the policy limits were automatically increased each
year to account for inflation.”
9
DISCUSSION10
Negligence
Worden’s Recasting of His Claim
As we have recited, in his second amended complaint—the operative
pleading—Worden alleged defendants failed “to obtain adequate insurance
coverage” (italics added, capitalization omitted) and failed to “conduct an
annual review . . . to adequately insure” the property. (Italics added.) As
defendants point out, these allegations trigger a line of cases resolved under
the general rule that insurers and their agents do not have a duty to ensure
that a policy will cover the full amount of any insured loss. (E.g., Fitzpatrick
v. Hayes (1997) 57 Cal.App.4th 916, 921–923 (Fitzpatrick) [canvassing this
authority in detail].)
As we have also recited, in his opposition to defendants’ motion for
summary judgment, Worden re-characterized his claim as one for “failure to
deliver the agreed upon coverage”—a re-characterization he continues to
make on appeal. Such a claim triggers a line of cases finding “exceptions” to
general no-duty rule. (Fitzpatrick, supra, 57 Cal.App.4th at pp. 923–927 [also
canvassing this authority in detail].)
Pointing to the well-established rule that a motion for summary
judgment is directed at the claims alleged in the operative pleading and need
not anticipate new and different claims (e.g. Laabs v. City of Victorville
(2008) 163 Cal.App.4th 1242, 1253, 1257–1258 & fn. 7 [The operative
10 The standard of review on appeal from a summary judgment is well-
established. We review the judgment de novo (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 860; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334), and in doing so, we “ ‘liberally construe the evidence in support of
the party opposing summary judgment and resolve doubts concerning the
evidence in favor of that party.’ ” (Hartford Casualty Ins. Co. v. Swift
Distribution, Inc. (2014) 59 Cal.4th 277, 286.)
10
complaint determines the issues a defendant must address to prevail on a
motion for summary judgment, and a party cannot amend its pleadings by
raising issues for the first time in an opposition to summary judgment. “To
allow an issue that has not been pled to be raised in opposition to a motion
for summary judgment in the absence of an amended pleading, allows
nothing more than a moving target.”]), defendants insist Worden’s restyled
claim fails as a matter of law.
However, we need not decide whether Worden transgressed into unfair
revisionist territory. Regardless of any reimagining, on this record, Worden’s
negligence claim fails.
Defendants Owed No Duty to Ensure Worden Had Coverage for Full
Replacement Cost
“Ordinarily, an insurance agent ‘assumes only those duties normally
found in any agency relationship. This includes the obligation to use
reasonable care, diligence, and judgment in procuring the insurance
requested by an insured. [Citation.] The mere existence of such a
relationship imposes no duty on the agent to advise the insured on specific
insurance matters. [Citations.]’ [Citation.] Instead, in the ordinary case,
‘the onus is . . . squarely on the insured to inform the agent of the insurance
he requires.’ (Paper Savers, Inc. v. Nacsa (1996) 51 Cal.App.4th 1090, 1096
. . . [Paper Savers].)” (Wallman v. Suddock (2011) 200 Cal.App.4th 1288,
1309 (Wallman).)
Accordingly, the courts have uniformly rejected the assertion that
insurers and their agents owe a “duty” to ensure that a policy will provide full
coverage for an insured loss. (See Fitzpatrick, supra, 57 Cal.App.4th at
pp. 921–923, 926–927.)
11
In Gibson v. Government Employees Ins. Co. (1984) 162 Cal.App.3d 441
(Gibson), for example, the plaintiff insureds sought to recover from their
insurer for “unreimbursed damages they suffered” after being struck by an
automobile while crossing the street. (Id. at pp. 443–444.) They alleged they
had obtained insurance from the defendant for over 20 years, had been
“ ‘assured that defendant . . . would cover their needs,’ ” and had relied upon
the defendant to provide “ ‘the coverage necessary for their protection, and to
inform plaintiffs of such coverage and needs.’ ” (Id. at pp. 443, 448.) They
further asserted the defendant had failed to inform them of “the availability
of coverage in addition to that requested” and “the inadequacy of their policy
limits.” (Id. at p. 443.) The trial court dismissed the complaint. The Court of
Appeal affirmed. (Id. at pp. 443, 453.)
There was nothing in the allegations, the appellate court explained,
“concerning any promises, guarantees, or warranties made by defendant,
through advertising or otherwise, that defendant would ‘obtain
comprehensive and adequate insurance for plaintiffs,’ that defendant ‘held
itself to have a great deal of authority in the matter,’ or that plaintiff . . . ‘was
persuaded to go with defendant by defendant’s promises of comprehensive
insurance protection.’ ” (Gibson, supra, 162 Cal.App.3d at p. 448.) “[A]bsent
some conduct on the part of the insurer consistent with assuming broader
duties,” the general duty owed by an insurer did not include a duty to advise
on optimum coverage amounts, or types of insurance available on the general
market, or to warn when coverage is too low. (Id. at pp. 443, 452; see Ahern
v. Dillenback (1991) 1 Cal.App.4th 36, 42–43 [insurance agent had no duty to
procure additional or different insurance coverage than that requested by the
insured].)
12
In Jones v. Grewe (1987) 189 Cal.App.3d 950 (Jones), a minor fell into
an apartment swimming pool and sustained serious injuries. The property
owners, after settling with the minor’s parents, sued the insurance brokers
through whom they had procured liability insurance. They alleged the
brokers had failed to “provide appellants with liability insurance sufficient to
protect their personal assets and satisfy the $1.5 million judgment”; had
“held themselves out as insurance consultants and experts;” had “taken care
of appellants’ insurance needs for 10 years, during which time appellants
relied on respondents’ expertise;” and had “ ‘expressly and impliedly’
represented to appellants that their insurance protection was adequate.” (Id.
at p. 953.) The brokers interposed demurrers, asserting “they did not have a
duty to provide appellants with liability insurance sufficient to ‘cover every
conceivable eventuality.’ ” (Ibid.) The trial court agreed, and the Court of
Appeal affirmed. (Id. at p. 957.)
The “general duty of reasonable care which an insurance agent owes
his client,” said the appellate court, “does not include the obligation to
procure a policy affording the client complete liability protection.” (Jones,
supra, 189 Cal.App.3d at p. 956.) The court further concluded no facts were
alleged “from which a special or greater duty could reasonably be inferred.”
(Ibid.) Rather, the complaint alleged the owners had “purchased insurance
from an insurance agent for several years and followed his advice on certain
insurance matters,” the brokers had “assured appellants of the adequacy of
their liability coverage,” and “ ‘financial information’ regarding appellants
was made available to respondents.’ ” (Id. at pp. 956–957.) These
allegations, both singularly and collectively, were not sufficient “to imply the
existence of a greater duty.” (Id. at p. 957.)
13
In Fitzpatrick, supra, 57 Cal.App.4th 916, the plaintiffs alleged their
insurance company and one of its agents negligently failed to advise them of
“the availability of personal umbrella coverage which . . . would have resulted
in their being more adequately compensated for the injuries they suffered” as
a result of a car accident with an underinsured driver. (Id. at p. 918.) The
trial court granted the defendants’ motion for summary judgment on the
ground that “ ‘none of the defendants had a duty to advise plaintiffs of the
availability of, and to procure, excess underinsured motor vehicle coverage,
and none of the defendants undertook such a duty.’ ” (Id. at p. 920.) The
Court of Appeal affirmed. (Id. at p. 930.)
As we have indicated, the appellate court undertook an exhaustive
discussion of the cases resolved under the general rule—that insurers and
agents have no duty to procure any particular kind or amount of coverage—
and those resolved under exceptions to that rule, wherein the courts found,
under the particular facts of the case, a heightened duty to deliver a policy
containing specifically requested coverage or limits. (Fitzpatrick, supra,
57 Cal.App.4th at pp. 921–927.) The court summarized the latter cases as
falling into three categories—where the agent misrepresents the “nature,
extent, or scope of the coverage being offered or provided”; the insured
requests “a particular type or extent of coverage”; or the agent assumes “an
additional duty” by expressly “ ‘holding himself out’ as having expertise in a
given field of insurance sought by the insured.” (Id. at p. 927.)
The underinsured plaintiffs in Fitzpatrick asserted two of these
exceptions applied—that they had requested or inquired about a particular
type or extent of coverage, and their agent had assumed an additional duty
by holding himself out as having expertise in the area of personal insurance
needs. (Fitzpatrick, supra, 57 Cal.App.4th at p. 927.) As support, they
14
pointed out their insurance agent had renewed their policies for 20 years, was
aware they “generally wanted the upper limits of coverage,” was aware the
insurance company offered umbrella coverage, and told them “ ‘several
times’ ” their insurance coverage was adequate. (Id. at pp. 927–928.) They
also relied on a State Farm brochure promoting “ a ‘Family Insurance
Checkup’ ” and a declaration by a former agent that failing to alert the
plaintiffs of their need for an umbrella policy was a failure to act “ ‘within the
standards of care applicable to State Farm agents.’ ” (Id. at p. 929.) None of
this, said the court, raised a triable issue that the case fell outside the
general rule. The “adequate” statement was conclusory and also lacked
reference to any sort of specific inquiry by the insureds. (Id. at pp. 928–929.)
As for the brochure, there was no evidence the plaintiffs saw or relied on it.
Further, “even a cursory reading of that brochure makes clear that it is far
from a ‘holding out’ of special expertise.” (Id. at p. 929.) Finally, the former
agent’s declaration went towards breach, and did not bear on whether
defendants legally owed a special duty of care. (Ibid. [“the responsibility for
defining duty in a tort case reposes with the court”].)
Insisting this is “a failure to deliver the agreed-upon coverage case, not
a failure . . . to recommend adequate coverage” case, (italics omitted), Worden
relies on Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110 (Desai)
and like cases to support his assertion the trial court erred in granting
summary judgment.
In Desai, the insured alleged he had specifically requested “100 percent
coverage for the cost of repairing or replacing improvements to the property,
including any increase for inflation” and the insurance agent had “personally
inspected the property to determine the amount of coverage needed” and then
“orally represented that the policy provided ‘100 coverage for costs of repairs
15
and/or replacement of the improvements to the property including any and
all increases in costs of repair or rebuilding in the event of a loss.’ ” (Desai,
supra, 47 Cal.App.4th at p. 1114.) The trial court sustained the defendants’
demurrer without leave to amend and entered a judgment of dismissal. The
Court of Appeal reversed. (Id. at pp. 1114–1115.)
As the appellate court explained, as alleged in the complaint, this was
“not a situation wherein an insured belatedly realized—after an accident
occurred and a claim was made and denied—that he or she should have had
more or different coverage.” (Desai, supra, 47 Cal.App.4th at p. 1119.)
Rather, it was a case where the insured allegedly had made a specific request
for coverage for full repair and replacement cost, and the agent had
personally inspected the property in order to deliver the requested coverage
and thereafter had specifically represented the policy was a “100 percent
coverage” policy. (Id. at pp. 1114, 1119; see Fitzpatrick, supra,
57 Cal.App.4th at pp. 926–927 [discussing the cases, such as Desai, where the
courts have found “exceptions” to the general rule that an agent “does not
have a duty to volunteer to an insured that the latter should procure
additional or different insurance coverage”].)
Worden claims the instant case not only comes within the “exception”
to the general rule illustrated by Desai and similar cases—where the insured
makes a specific request for specific coverage—but also comes within the
other two “exceptions” identified in Fitzpatrick—where the agent
“misrepresents” the “nature, extent or scope of the coverage being offered or
provided,” or expressly “ ‘hold[s] himself out’ as having expertise in a given
field of insurance sought by the insured.” (Fitzpatrick, supra, 57 Cal.App.4th
at p. 927.)
16
In support, Worden asserts: (a) he requested a homeowners’ insurance
policy, (b) he did not know—before his deposition—the policy had been
changed to a landlord policy, (c) he relied on Hague’s father to know “the
current market value” of the Sea Ranch home11; (d) he provided Hague’s
father with information regarding the size and construction materials of the
home; (e) the original estimate in 1972 “was right on the money” and
“adequate,” (f) he had yearly meetings with Hague’s father and Hague; (g)
when Hague inherited the policy, he “would tell Worden that . . . ‘the cost
would go up because it had been built into the policy . . . due to construction
costs and the market going up, those limits would go up,’ ” (h) when Worden
annually reviewed the policy limits he “assumed that the coverage had gone
up approximately the correct percentage,” (i) the home description was wrong
in some respects, and had Hague corrected the errors in the description
“there would likely have been an evaluation of the current cost of
reconstruction of this unique home with redwood siding,” and (j) Hague
misrepresented, though not intentionally, that Worden had “adequate
coverage.”
None of these assertions removes the instant case from the general rule
and establishes that the Hagues assumed a special duty of care to assure that
Worden had full replacement coverage.
Hague averred in his declaration that he inherited Worden’s policy
when he took over his father’s business. He never assisted Worden in
“obtaining any new insurance policies.” Worden never asked him to review or
adjust his policy limits, never asked for “ ‘100% replacement cost’ coverage”
(even though this was identified bi-annually in the renewal packets as the
11We note the Policy Notices also made clear “market value” is not the
same as, and “is almost always different from,” replacement cost.
17
“broadest level of coverage” and the form of coverage that provided full
replacement cost), never asked for an inspection of the Sea Ranch home (even
though this was one of the recommendations in the renewal packets to
protect against being underinsured), and never asked or arranged for a
current estimate to rebuild (even though this was also one of the
recommendations in the renewal packets to protect against being
underinsured.
Nothing in Worden’s complaint or, more importantly, his deposition
testimony, is to the contrary. In fact, Worden both alleged and testified that
the only affirmative request he made was when he initially procured a policy
through Hague’s father, and, then, his request was for “adequate” insurance.
As the court in Jones explained, “an insured’s request for ‘sufficient coverage’
and an agent’s assurance that the policy provided ‘adequate’ coverage do not,
in and by themselves, imply an ‘expanded principal-agent relationship.’ Such
an exchange usually occurs within the context of the general principal-agent
relationship. ‘Purchasers of insurance generally seek “sufficient coverage.”
[Citation.] To imply the existence of a broader agency agreement from such
an exchange, . . . would in effect make the agent ‘a blanket insurer for his
principal.’ ” (Jones, supra, 189 Cal.App.3d at p. 956; see Wallman, supra,
200 Cal.App.4th at pp. 1310–1311 [no negligent failure to procure agreed-
upon coverage where, “by plaintiffs’ own admissions their statements to the
[insurance agent] about the kind of coverage they wanted were extremely
general in nature”].)
That Hague assertedly told him years later “ ‘the cost would go up
because it had been built into the policy . . . due to construction costs and the
market going up, those limits would go up,’ ” is not an assurance of, or a
response to a request for, any particular type coverage or any specific level of
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coverage, and certainly is not an assurance of, or a response to a request for,
“ ‘100% replacement cost’ coverage.” (See Fitzpatrick, supra, 57 Cal.App.4th
at pp. 928–929.) Indeed, Worden admitted he never made any specific
request as to the type or extent of coverage provided by the policy.
In sum, none of the proffered evidence suggests Hague held himself out
as being anything other than a general insurance agent. (See Fitzpatrick,
supra, 57 Cal.App.4th at pp. 927–928 [agent who did business with insureds
for 20 years, knew “generally” insureds wanted “the upper limits of coverage,”
and “several times” told insureds coverage was “adequate,” did not assume
special duty].) Indeed, Hague declared that he was “not a licensed
contractor,” an appraiser, or “a risk manager or financial adviser,” that he
had “never built or remodeled any homes,” that he did not receive any
consulting fees for the services provided to his customers, and that he was
“not an expert in the cost of rebuilding in Sea Ranch.” Worden submitted no
evidence to the contrary.
The trial court therefore correctly concluded the general rule applies
here and defendants owed no special duty to assure that Worden carried full
replacement cost coverage.
Negligent Misrepresentation
Negligence and negligent misrepresentation are different torts with
different elements. (Bock v. Hansen (2014) 225 Cal.App.4th 215, 227–228.)
But it “is true that, as in negligence, ‘responsibility for negligent
misrepresentation rests upon the existence of a legal duty, imposed by
contract, statute or otherwise, owed by a defendant to an injured person.
[Citation.] The determination of whether a legal duty exists is primarily a
question of law.’ ” (Id. at p. 228.) “It is generally said that ‘ . . . California
courts have recognized a cause of action for negligent misrepresentation, i.e.,
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a duty to communicate accurate information, in two circumstances. The first
situation arises where providing false information poses a risk of and results
in physical harm to person or property. The second situation arises where
information is conveyed in a commercial setting for a business purpose.’ ”
(Id. at p. 229.)
Negligent misrepresentation consists of a “ ‘[m]isrepresentation of a
past or existing material fact, without reasonable ground for believing it to be
true, and with intent to induce another’s reliance on the fact misrepresented;
ignorance of the truth and justifiable reliance on the misrepresentation by
the party to whom it was directed; and resulting damage.’ ” (Shamsian v.
Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 983.)
Worden’s misrepresentation claim fails for essentially the same reason
his negligence claim fails. He alleged that Hague “represented to Worden
that he would obtain adequate insurance coverage” for the Sea Ranch home,
and he testified at his deposition to the same effect. Worden construes
Hague’s representation to mean that Hague would obtain full replacement
cost coverage for Worden. As the cases discussed in the preceding section
make clear, a request for, or assurance of “adequate” coverage is not the same
as a request for, or assurance of, “ ‘100% replacement cost’ coverage.’ ” (See
Fitzpatrick, supra, 57 Cal.App.4th at pp. 921–930.) Accordingly, Worden
cannot predicate a claim that Hague “misrepresented” that Worden had full
replacement cost coverage on Hague’s asserted statement that Worden had
“adequate” coverage. Thus, as the trial court ruled, Worden failed to allege,
or adduce evidence of, any “misrepresentation” by Hague.
In addition, given the repeated warnings in the annual renewal packets
about the peril of being underinsured and specific recommendations as to
how to avoid this calamity—none of which Worden heeded—Worden also
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could not have reasonably relied on Hague’s vague statement of “adequate”
coverage as assurance that Worden was covered for the full cost of replacing
the home. Indeed, as we have discussed, the “California Residential Property
Insurance Disclosure” notice specifically listed the “Primary Forms” of
dwelling coverage, including “Guaranteed Replacement Cost,” and also made
clear Worden did not have this coverage (as did the Policy Notice concerning
dwelling reconstruction costs). These same notices further warned about
being underinsured, and recommended insureds obtain a current estimate to
rebuild based on costs in the area in which the property is located. In short,
what an insured could not reasonably do—in the face of notice about the
various levels of coverage, notice that the insured did not carry full
replacement cost coverage, and multiple warnings about and
recommendations to avoid being underinsured—was simply “assume,” as
Worden admittedly did, that coverage purchased in 1972 would provide “
‘100% replacement cost’ coverage’ ” four decades later.12 Worden’s negligent
misrepresentation claim therefore fails for lack of reasonable reliance, as
well.
DISPOSITION
The judgment is affirmed. Defendants to recover costs.
The two cases Worden cites for the proposition he was not required
12
to review the policy and could rely on defendants’ representations are entirely
distinguishable, as here, in contrast to those cases, defendants made no
misrepresentations about the scope of Worden’s coverage. (Butcher v. Truck
Ins. Exchange (2000) 77 Cal.App.4th 1442, 1446 [agent misled insured into
believing new policy included malicious prosecution injury coverage]; Clement
v. Smith (1993) 16 Cal.App.4th 39, 42–43 [agent orally misinformed insured
policy would cover litigation by a specific person].)
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_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Sanchez, J.
A156876, Worden v. Farmers Fire Insurance Exchange et al.
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