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Proof of Breach of Standard or Care Required to Sue Agent or Broker



It is amazing to me that no one actually reads their insurance policy until after a loss. Then, when they found it did not provide the coverages they needed insured the broker or the agent not to be insured should have ordered except the insurance actually ordered. Emer's Camper Corral, LLC v. Michael A. Alderman, Alderman, Inc. D / B / A Jensen-Sundquist Insurance Agency and Western Heritage Insurance Compan Appeal No. 2018AP458, State of Wisconsin in Court of Appeals District III (March 19, 2019) Camper Corral was very unlucky business that suffered multiple sets of hail to their stock of campers and RVs.

Camper Corral alleged that Alderman, its insurance An agent, breached his duty by procuring a $ 5,000 per unit deductible for hail damage claims, instead of a policy of $ 1

,000 per unit hail damage deductible and $ 5,000. The case proceeded to a jury trial, and the circuit court ultimately granted Alderman's motion for a directed verdict on two grounds: (1) Camper Corral failed to present an expert witness to testify regarding the standard of care; and (2) Coral Coral failed to establish that Alderman's alleged negligence caused its damages.

BACKGROUND

Camper Corral is a business that sells new and used campers. In May 2011, Camper Corral's inventory sustained approximately $ 100,000 in damage during a storm.

In the summer of 2012, Camper Corral's inventory again sustained approximately $ 100,000 in hail damage. Corral submitted to General Casualty for that damage, which General paid. Twice bitten, General Casualty subsequently provided Camper Corral with a notice of non-renewal of its policy. Alderman searched the insurance market and contacted Emer to inform here that Western Heritage Insurance Company was willing to insure Camper Corral's inventory, but with a hail damage deductible or $ 5000 per unit. Emerified to accept that policy.

Emer testified that Alderman called here in August 2013 and informed her that Western Heritage had agreed to renew Motorhome Corral's policy for the 2013-14 policy year with a hail damage deductible of $ 1000 per unit, capped at $ 5000 total. Emer testified she was receiving a copy of Camper Corral's 2013-14 policy after the September 3, 2014 hail storm. She has learned that the policy actually includes a hail damage deductible of $ 5000 per unit, rather than $ 1000 per unit, and it did not include an aggregate hail damage deductible. More than twenty-five campers were damaged during the September 2014 storm, and the total deductible was $ 125,000.

Camper Corral unhappy with the deductible shortfall sued the broker asserting a single claim against Alderman for negligence. Because he "knew that wanted a $ 5,000 hail deductible."

The case then proceeded to a jury trial. Alderman moved for a directed verdict challenging the sufficiency of the evidence. The circuit court agreed with Alderman and granted a directed verdict in his favor. A plaintiff can succeed only if they are able to show that they would have been protected from the damages at an insurance policy that could have been purchased in the insurance market at the time of the alleged breach occurred.

The court concluded Camper Corral had presented no evidence demonstrating that, Alderman's alleged negligence, Camper Corral would have been able to obtain a policy containing a hail damage deductible of less than $ 5,000 per unit for the coverage period at issue.

DISCUSSION

Camper Corral failed to introduce expert testimony regarding the standard of care or any evidence that there was coverage availed of in the insurance marketplace with the deductibles wanted.

A negligence claim requires a plaintiff to establish four elements: (1) the existence of a duty of care on the part of the defendant; (2) a breach of that duty of care; (3) causal connection between the victim's breach and the plaintiff's injury; and (4) Alderman was entitled to a direct verdict on Camper Corral's negligence claim because Camper Corral had failed to prove that Alderman's conduct caused its damages. In addition, the circuit court found there was no evidence in the trial record that support was found that Alderman's alleged negligence, Camper Corral would have been able to obtain a policy containing a hail damage deductible less than $ 5,000 per unit. Without the evidence, the court found that Camper Corral could not prove that Alderman's conduct was successful in obtaining a policy with lower deductible caused by camper corral to sustain any damages.

factor in producing the plaintiff's injury. Here, Camper Corral's alleged injury was higher than what Camper Corral anticipated. If Camper Corral could not have done so, then Alderson's conduct had no effect on the ultimate amount of Camper Corral's deductible for the September 2014 claim and, consequently, was not a significant factor in producing that result.

single cause of action against Alderman for negligence. Camper Corral never filed an amended complaint asserting additional claims for breach of contract or strict liability misrepresentation.

An order to prevail on its negligence claim, Camper Corral was required to establish that, absent Alderman's alleged negligence, it would have been able to Get an insurance policy containing a hail damage deductible of less than $ 5000 per unit for the coverage period at issue. The circuit court reasonably concluded there was no credible evidence at trial to find that Camper Corral had obtained such a policy.

This is another failure to read a policy as written, a failure to communicate with the insurance agent / broker , and failure to present sufficient evidence to prove the cause of action. One could only assume that any expert insurance agent or broker asked to testify would, if called, have tested that after two major hail losses in a short period of time no prudent insurer would have taken on the risk posed by Camper Corral without a high per unit deductible. If my father clearly would say: "You only get what you pay for."


© 2019 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for reading, and conveyed the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling laws and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com

Mr. Zalma is the first recipient of the first annual claims magazine / ACE Legend Award.

About the last 51 years Barry Zalma has dedicated his life insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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