(dissenting):
{31 Because there was no agreement between the parties sufficiently specific to create either a contract to procure insurance or a duty to do so, I must dissent. See 3 Lee R. Russ & Thomas F. Segalla, Couch on Insurance §§ 46.65 at 46-96, 46.68 at 46-99 (3d ed.1996); see also Riddle-Duckworth, Inc. v. Sullivan, 253 S.C. 411, 171 S.E.2d 486, 491 (1969) (stating burden is on plaintiff to demonstrate "with reasonable certainty the terms and conditions of the agreement" to procure insurance, and for a valid contract to procure, there must be "sufficient information provided upon which to procure the policy"). This case was appropriately disposed of by summary judgment because whether a legal duty exists is a question of law and whether a contract has been formed, based on a given set of facts, is also a question of law. See Ferree v. State, 784 P.2d 149, 151 (Utah 1989) (stating whether a duty exists is "entirely a question of law to be determined by the court"); Weber v. Springville City, 725 P.2d 1360, 1363 (Utah 1986) (same) Nunley v. Westates Casing Servs., Inc., 1999 UT 100, ¶ 17, 989 P.2d 1077 ("Whether a contract has been formed is ultimately a conclusion of law. ..."}.
1 32 The majority opinion misses the mark for three related reasons. First, the majority misapprehends the appropriate import of the prior dealings between the parties. Second, the cases relied on by Harris and the majority are easily distinguishable from the facts and inferences we have here, even when viewed in the light most favorable to Harris. Finally, the majority fails to analyze whether or. not Harris's reliance on the purported promise by Albrecht was reasonable.
133 The majority notes that "Harris and Albrecht had an ongoing, eight-year business relationship," ante at ¶ 27, and goes to great pains to point out how the two men conducted themselves during these transactions. This would be important if the past dealings helped to supply some of the missing terms necessary to procure an insurance policy on Harris's business. See Hamacher v. Tumy, 222 Or. 341, 352 P.2d 493, 498 (1960) (noting that prior policies entered into by the parties could be relied on to supply missing terms necessary to enable agent to procure insurance). However, that is not the case here. All of the past dealings between the two men regarding insurance matters dealt with automobiles, boats, and similar items that have a ready market and have easily ascertainable values and standard insurance coverages-unlike a business. The past dealings between the parties do not help define what the terms of the alleged contract to procure insurance were. In my view, the prior history between the parties cannot be relied on to fashion a contract to procure insurance that never existed in the first place due to an almost total lack of agreed upon terms.
I 34 Second, the three cases primarily relied on by the majority, Lawrence v. Francis, 223 Ark. 584, 267 S.W.2d 306 (1954), Caddy v. Smith, 129 Or.App. 62, 877 P.2d 667 (1994), and Massengale v. Hicks, 639 S.W.2d 659 (Tenn.Ct.App.1982), are all inapposite. In all of those cases, the agent knew, or should have known, exactly what was needed to be covered due to either past dealings with the *247plaintiff or from information speafically provided by the plaintiff.
1385 Hicks is an automobile renewal case; the policy was already written and all that had to be done was to renew its See id. at 660. In addition, the plaintiff and his mother contacted the agent a total of seven times in order to obtain the insurance. See id
11 36 Francis is to the same effect. There, the insurance agent was also the realtor who sold the plaintiff the subject property, see Francis, 267 S.W.2d at 307, and thus, the agent knew exactly what needed to be insured. Moreover, there was already a policy written in the former owner's name; all that was asked of the agent was to switch it over to the plaintiff. See id. Thus, the risk to be insured against, the premium, and the property at issue all were known to the agent or easily ascertainable from the prior policy.
T37 Caddy also is unlike this case. There, the risk to be insured against and subject property were specifically described by the plaintiff to the agent. See Caddy, 877 P.2d at 668-69. The two cases would be analogous only if Harris had specifically told Al-brecht he wanted to insure against fire and then itemized the property to be protected and assigned it a value.
1 38 Finally, the majority fails to apply the third element set forth in Bonner v. Bank of Coushatta, 445 So.2d 84, 87 (La Ct.App.1984) ("the actions of the agent warranted an assumption by the client that he was properly insured"). In order to recover on either theory-the contract to procure or the breach of a duty to procure-Harris must demonstrate that it was reasonable for him to rely on the agent to obtain the policy. See Couch on Insurance, supra § 46.72 at 46-107. Harris did not act reasonably in relying on Albrecht's purported statement that he would "take care of it" when Harris had but one brief conversation regarding an unknown and amorphous business policy and, even though he admits having spoken with Al-brecht on other occasions, never followed up to see if the coverage had been arranged, never received a bill over the course of several months, and Albrecht never came out to see the property to be insured.
139 In my view, this case is closer to Lewis v. Pike, 663 P.2d 91, 92-98 (Utah 1983) (affirming a grant of summary judgment for the defendant because there was no "specific order for insurance"), than any of the three cases relied on by the majority. Here, the actions of Harris amounted. to little more than an inquiry about insurance, see id. at 92, and fall far short of creating a contract to procure insurance or creating a duty to do the same. See Stockberger v. Meridian Mut. Ins. Co., 182 Ind.App. 566, 395 N.E.2d 1272, 1279 (1979) (stating the agent's lability "could not arise unless the agent had sufficiently definite directions from the principal to enable the agent to consummate the final insurance contract," and noting that there is a corresponding duty on the part of the insured to provide the agent with necessary information); Boston Camping Distrib. Co. v. Lumbermens Mut. Cas. Co., 361 Mass. 769, 282 N.E.2d 374, 376 (1972) (holding statement by plaintiff to agent that he wanted coverage from "A to Z, second to none" was not a contract to procure and merely expressed an intent to obtain insurance); Wallis v. Liberty Mut. Ins. Co., 465 S.W.2d 422, 425-26 (Tex.Civ.App.1971) (reversing a judgment for plaintiffs against agent and stating that instructing the agent to procure insurance was not enough to give rise to a duty to procure insurance, it merely indicated "a desire on the part of plaintiffs to be insured"). Accordingly, I respectfully dissent.