concurring in result.
In footnote 3, the majority opinion seems to conclude that Brumer v. League General Insurance Co. (1987) 164 Mich.App. 28, 416 N.W.2d 318, impliedly overruled or declined to follow Palmer v. Pacific Indemmity Co. (1977) 74 Mich.App. 259, 254 N.W.2d 52, and Stein, Hinkle, Dawe and Associates, Inc. v. Continental Casualty Co. (1981) 110 Mich. App. 410, 313 N.W.2d 299. In Bruner the insurer had removed uninsured coverage from Bruner's policy because it was no longer required under Michigan law. There was no issue as to the adequacy of coverage; only as to whether under the cireumstances the insurer should have provided uninsured coverage, although Bruner made no inquiry about such coverage. Here, the policy in question did in fact provide coverage of $40,-000 as underinsured protection, even though Alkema, the insurance agent, was not aware that the provision was contained in the policy.
In any event, a subsequent case in the Michigan federal system applying Michigan law noted that Bruner states the general rule that there is no duty to affirmatively advise a client regarding adequacy of coverage. The court also stated, however, that there is an exception to the general rule, as spelled out in Stein, supra, i.e., if a special relationship exists. The court went on to cite and emphasize language from Palmer, supra, that "the existence of a special relationship is a question of fact". St. Paul Fire and Marine Insurance Co. v. CEI Florida, Inc. (1994) E.D.Mich., 864 F.Supp. 656.
Here, it appears to me that various factors were present which would permit a reasonable trier of fact to conclude that a special relationship existed. If such were the finding of fact, the trier of fact might also conclude that, under the circumstances as between Alkema and Trupiano, the relationship as to scope and adequacy of coverages was sufficient to trigger a duty to advise.
Notwithstanding the arguable existence of a genuine issue as to the material facts alluded to, I find no error in the grant of summary judgment. Here, Trupiano does not complain that he suffered loss because he was not advised as to underinsured coverage and therefore did not have such coverage; nor could he do so. The policy did in fact provide $40,000 underinsured coverage.
Trupiano's argument, in effect, would hold his insurance agent to a duty to not only advise, but to actually provide coverage in an amount to exceed any liability limits which might be carried by any motorist with whom Trupiano might have an accident. Perhaps the $40,000 coverage is less than what a careful insurance agent might advise for someone in Trupiano's position but no trier of fact could reasonably conclude that the carrier was required to advise or provide coverage in excess of $100,000. Even if Tru-piano had coverage in an amount between $40,000 and $100,000, he would recover nothing in this lawsuit. I therefore concur in the affirmance of the summary judgment.