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Peter v Schumacher Enterprises (05/11/2001) sp-5409
Peter v Schumacher Enterprises (05/11/2001) sp-5409
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
SAMUEL PETER, SR., individually )
and as father and next friend ) Supreme Court No. S-9177
of SAMUEL PETER, JR., )
)
Appellant, )
) Superior Court No.
v. ) 3KN-97-964 CI
)
SCHUMACHER ENTERPRISES, INC., ) O P I N I O N
d/b/a LAST FRONTIER INSURANCE )
CACHE, )
)
Appellee. ) [No. 5409 - May 11, 2001]
___________________________________)
SAMUEL PETER, SR., individually )
and as father and next friend )
of SAMUEL PETER, JR., ) Supreme Court No. S-9303
)
Petitioner, )
)
v. ) Superior Court No.
) 3KN-97-964 CI
THE PROGRESSIVE CORPORATION, )
PROGRESSIVE NORTHWESTERN )
INSURANCE COMPANY, SCHUMACHER )
ENTERPRISES, INC., d/b/a LAST )
FRONTIER INSURANCE CACHE, )
)
Respondents. )
___________________________________)
Appeal and Petition for Review from the
Superior Court of the State of Alaska, Third Judicial District,
Kenai, Harold M. Brown, Judge.
Appearances: David Karl Gross, Law Offices of
Murphy L. Clark, Anchorage, for Appellant/ Petitioner. L. G.
Berry, Robertson, Monagle & Eastaugh, Anchorage, for
Appellee/Respondent Schumacher Enterprises, Inc., d/b/a Last
Frontier Insurance Cache. Gary A. Zipkin, Susan M. West, Guess &
Rudd, P.C., Anchorage, for Amicus Curiae/Respondents The
Progressive Corporation and Progressive Northwestern Insurance
Company.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
MATTHEWS, Chief Justice.
Two major legal questions are presented in this case.
The first is whether insurance agents have a common-law duty to
advise customers about their insurance coverage. We conclude that
insurance agents do have a common-law duty to advise if a "special
relationship" exists between the agent and the insured. The second
question is whether customers may sue insurers who violate AS
21.89.020(c), which requires insurance companies to offer limits up
to $1,000,000 for underinsured motorist coverage. We conclude that
such a suit may be maintained, because factors used to decide
whether private remedies are implied by a statute favor
implication. Because the insurance agent and insurance company
were granted summary judgment on the claims against them, and
because genuine issues of material fact are presented as to whether
a special relationship existed between the insurance agent and the
insured, and whether the insurance company offered the statutory
limits of underinsured motorist insurance, resolution of these
questions requires remand of the case.
FACTS AND PROCEEDINGS
On March 27, 1995, Donita Peter dropped off her eight-
year-old son Samuel on the street opposite from his school bus
stop. As he crossed the street he was struck by a car driven by
Cynthia Pack. Samuel was brain-damaged in the accident.
Pack had liability coverage, but her policy limits were
much less than Samuel's expected damages. Samuel's parents, Donita
and Samuel, Sr. (Peter), also were insured. They were covered by
a policy issued by respondent Progressive Northwestern Insurance
Company with limits of $50,000 per person and $100,000 per accident
(50/100) for uninsured and underinsured motorist (UM/UIM) coverage.
The facts surrounding the acquisition of the Progressive
policy by the Peters are important to a number of the issues in
this case. The policy was purchased by Donita Peter in August of
1994 from Last Frontier Insurance Cache, an agency with which the
Peters had done business for ten years. What was done and said
during the transaction in which this policy was purchased is
disputed. Donita Peter claims that she initially telephoned asking
for "full coverage," and that in the office she was not told that
she could purchase UM/UIM coverage with limits higher than 50/100.
Peter describes the transaction as follows in his brief:
At the time this policy was purchased, Last
Frontier did not discuss what specific insurance needs Donita Peter
may require. Last Frontier did not inquire into whether the
minimum insurance required by law would be adequate to protect her
and her family. Last Frontier did not consider financial status,
family needs, value of assets, and the importance of underinsured
motorists coverage when the policy was sold. In essence, the
policy was sold without determining whether it adequately protected
the Peters, or not.
By contrast, Karen Boone, the Last Frontier employee with whom
Donita Peter dealt, asserts that various policy limits were
discussed and that she gave Donita a "policy pack" which contained
a copy of the policy and a description of the levels of available
UM/UIM coverage. The record is undisputed that Donita signed a
form which states as follows:
I understand that I am entitled to purchase
Uninsured/Underinsured Motorists Coverage. I may choose to reject
UM/UIM BI/PD or UM/UIM PD. I specifically and unequivocally select
the following option of Uninsured/Underinsured Motorists
Protection:
I selected UM/UIM/BI limits of: 50/100
I selected UM/UIM/PD limits of: 25
Although the form refers to "the following option," implying that
there are other options, no other options are listed on the form.
Donita Peter claims that if she had known that she could have
purchased higher limit coverage she would have done so.
Peter sued Progressive and Last Frontier. Peter alleged
that Progressive had a duty to offer higher limit UM/UIM coverage
and that Last Frontier had a duty to recommend that they purchase
higher limit coverage and that both defendants breached their
respective duties.
Both defendants answered, and after much discovery Last
Frontier moved for summary judgment. Last Frontier contended (1)
that it had no duty to recommend higher coverage to the Peters, (2)
alternatively, that it did not breach this duty, and (3)
alternatively, that any breach it may have committed caused the
Peters no loss.
Peter opposed the motion and filed a cross-motion for
summary judgment. He argued that Last Frontier violated AS
21.89.020(c) by failing to offer the Peters optional higher limit
coverage and violated AS 21.89.020(e) by failing to obtain a waiver
in writing of optional higher limit coverage: "Last Frontier did
not give Donita written notice of the availability of her option to
purchase additional liability and underinsured motorist coverage
limits as required by AS 21.29.020(c), nor did Donita sign a waiver
of the additional coverages as required by subsection (e)." Peter
also contended that Last Frontier had a nonstatutory duty to
recommend that the Peters purchase higher limits.
The superior court granted Last Frontier's motion, ruling
that (1) Last Frontier had no nonstatutory duty to recommend
higher limits, (2) no private cause of action may be maintained for
violations of AS 21.89.020(c) and (e), and (3) "insurance agents
are not independently liable for violations of Title 21 . . . ."
The court entered a certificate pursuant to Civil Rule 54(b), and
the summary judgment in favor of Last Frontier became final and
appealable. Peter appealed.
Meanwhile, Peter and Progressive filed cross-motions for
summary judgment in the superior court concerning Progressive's
liability for violating AS 21.89.020(c) and (e). The court denied
Peter's motion and granted Progressive's, ruling again that (1) no
private cause of action is available for violating these sections,
and (2) these sections require "only a written waiver of UM/UIM
bodily injury and property damage coverages," not "that the various
optional limits be rejected in writing." We granted Peter's
petition for review from this order and consolidated the two
proceedings in this court.
STATUTORY SECTIONS
Alaska Statute 21.89.020(c) requires insurance companies
to offer in automobile liability policies UM/UIM coverage with
minimum limits of $50,000 per person and $100,000 per accident. In
addition, subsection (c)(2) requires that optional higher limits be
offered up to $1,000,000/$2,000,000. Subsection (d) requires
insurance companies to offer minimum limits of $25,000 for UM/UIM
property damage coverage. Subsection (e) provides that "[t]he
coverage required under (c) and (d) . . . may be waived in writing
by the insured in whole or in part." These subsections are set
forth in the margin. [Fn. 1]
SUMMARY OF ISSUES AND OUR DECISIONS CONCERNING THEM
The briefs in these cases present numerous issues. We
summarize them here, along with our decision concerning each issue.
1. Did Last Frontier have a common-law duty to advise the
Peters as to whether their coverage limits were appropriate?
DECISION: If a "special relationship" existed between Last
Frontier and the Peters there was such a duty. There are genuine
issues of material fact as to whether there was such a relation-
ship.
2. Do AS 21.89.020(c) and (e) give rise to duties that are
enforceable in a private action against an insurance company?
DECISION: Yes.
3. Do the same subsections give rise to duties that are
enforceable in a private action against an insurance agent?
DECISION: No.
4. Were there genuine issues of material fact as to the
claim that Progressive violated its duty under AS 21.89.020(c) to
offer optional limits?
DECISION: Yes.
5. Does AS 21.89.020(e) require the written waiver of each
set of optional limits that is not selected?
DECISION: No.
6. Did the court err in refusing to continue the
determination of Last Frontier's motion for summary judgment in
order to permit Peter to conduct further discovery?
DECISION: No.
We now discuss these points.
1. Determining Whether Last Frontier Had a Common-law Duty
to Advise Depends upon the Resolution of Contested Issues of
Material Fact.
Last Frontier argues that the rule in most jurisdictions
is that insurance agents have no duty to recommend higher limits
for liability or UM/UIM coverage in the absence of special
circumstances. [Fn. 2] Peter argues that Alaska cases establish
that agents generally have a duty to advise their clients of
appropriate coverage and that this includes a duty to advise of
appropriate liability and UM/UIM limits. [Fn. 3] Although we agree
with Last Frontier that insurance agents have no duty to advise in
the absence of special circumstances, we conclude that Donita
Peter's affidavit raises genuine issues of material fact as to
whether special circumstances existed.
This court has previously held that an insurance agent
owes a duty to the insured to exercise reasonable care, skill, and
diligence in procuring insurance. [Fn. 4] Insurance agents have a
well-established common-law duty "to obtain requested coverage for
their clients within a reasonable time or inform the client of the
inability to do so." [Fn. 5] Because the prospective insured
typically knows the extent of her personal assets and her ability
to pay better than the insurance agent, however, it is generally
the responsibility of the insured to advise the agent of the
insurance that she actually wants, including policy limits. [Fn. 6]
Ordinarily, then, an insurance agent fulfills her duty to the
insured by providing requested coverage, and has no duty to advise
a client to obtain different or additional coverage. [Fn. 7]
The Court of Appeals of New York recently summarized some
of the policy reasons underlying the rule that insurance agents
have no duty to advise customers to obtain additional coverage:
Insurance agents or brokers are not
personal financial counselors and risk managers, approaching
guarantor status . . . . Insureds are in a better position to know
their personal assets and abilities to protect themselves more so
than general insurance agents or brokers, unless the latter are
informed and asked to advise and act . . . . Furthermore,
permitting insureds to add such parties to the liability chain
might well open flood gates to even more complicated and
undesirable litigation.[ [Fn. 8]]
An additional but related reason is that imposing a duty
to advise "could afford insureds the opportunity to insure after
the loss by merely asserting they would have bought the additional
coverage had it been offered." [Fn. 9] This would amount to
retroactive insurance, a concept "that turns the entire theory of
insurance on its ear." [Fn. 10]
Still another reason pertaining to liability and bodily
injury insurance is that the question of adequacy of coverage is
necessarily a matter of opinion. "Neither an insurance agent nor
anyone else has the ability to accurately forecast the upper limit
of any damage award in a negligence action against the insured by
a third party". [Fn. 11] The absence of any "correct" answer as to
what insurance limits are appropriate is especially true with
respect to UM/UIM coverage. As with all insurance, the amount of
UM/UIM coverage is a trade off between cost and risk, but risk is
in part subjective and dependent on other available resources that
may mitigate the consequences of personal injury, such as medical
and disability insurance.
Finally, an undesirable consequence of imposing such a
duty would be that agents would defensively tend to advise their
customers to buy the highest, most comprehensive and expensive
coverages rather than more modest packages that most people of
similar means would find suitable. This could result in a mis-
allocation of personal resources of individual insureds.
Despite the strong arguments in its favor, however,
exceptions to the general no-duty rule may arise if a "special
relationship" exists between the insured and the insurance agent.
If the insurance agent misrepresents the nature of the coverage
being offered or provided, for example, the insured may justifiably
rely on the agent's representations in choosing the policy. [Fn.
12] In addition, an insurance agent may voluntarily assume the
responsibility for selecting the appropriate insurance policy for
the insured. [Fn. 13] Moreover, because an insurance agent does
have a duty to provide (or attempt to provide) requested coverage,
the agent may be liable to the insured if the agent fails to
respond appropriately to a request or inquiry for or about a
particular type or extent of coverage. [Fn. 14] Finally, an
insurance agent may have a duty to clarify an ambiguous request
before providing coverage. [Fn. 15]
As the trial court granted summary judgment in favor of
Last Frontier, we are required to credit that view of the facts
most favorable to Peter. Donita alleges that she requested "full
coverage," was handed a policy without being informed that she had
the ability to choose different levels of coverage, and was in fact
unaware that she could choose different levels of coverage.
Standing alone, a request for "full coverage" is not a request for
a specific type of coverage. [Fn. 16] Karen Boone, who sold Donita
her policy, affies that she was not surprised by Donita's
"choice[]" of 50/100 coverage, the statutory minimum, as Donita had
also chosen minimum coverage for her most recent insurance policy,
which had ultimately been canceled for non-payment. But we decline
to hold, as a matter of law, that a prior choice of the statutory
minimum levels of coverage, combined with a history of payment
difficulties, removes all ambiguity from a request for "full
coverage." Boone's decision to offer only a single level of UM/UIM
coverage thus cannot be viewed as simply "responsive" to Donita's
request for "full coverage." [Fn. 17] Instead, by failing to
inform Donita that she had other options for UM/UIM coverage, Boone
either implicitly recommended 50/100 coverage by offering only that
option [Fn. 18] or, at a minimum, failed to clarify Donita's
ambiguous request for "full coverage." [Fn. 19]
Of course, the facts that underlie the transaction
between Donita and Last Frontier are disputed, and Boone affies
that she did inform Donita that she could choose higher levels of
UM/UIM coverage. What actually occurred is a question of fact for
resolution at trial. If the facts are resolved favorably to the
Peters, however, then the "special relationship" exception to the
no-duty rule will have been established. If this exception is
established then, by definition, Last Frontier had a duty to advise
Donita as to appropriate levels of coverage. We believe that
subsumed within this duty would be a duty to advise of available
levels of coverage. Given the personal and subjective nature of
UIM coverage and the doubts that we have expressed as to whether
there is such a thing as an "appropriate" level for UIM coverage,
advice as to available limits may be more useful than advice as to
appropriate limits. While the latter may be almost entirely a
matter of personal choice, it is important to have information on
available limits so that the choice ultimately made by the insured
is an informed one.
Under the particular facts of this case, in order to
determine whether a special relationship creating a duty to advise
existed, the question of whether Last Frontier informed Donita of
optional available levels of coverage must be resolved. If a
special relationship is found to exist, the trier of fact must
address whether Last Frontier's advice, whether implicit or
explicit, was reasonable, or whether Last Frontier should instead
have recommended higher levels of UM/UIM insurance. [Fn. 20]
Questions of whether any breach of duty caused harm and, if so, the
extent of harm would also remain for resolution. A remand is
necessary so that these issues can be resolved.
2. AS 21.89.020(c) and (e) Give Rise to Enforceable Duties
Against Insurance Companies.
Alaska Statute 21.89.020 does not provide that an insured
or other person may bring a private action to enforce its
provisions. Indeed, there is no enforcement language in section
.020. But there is a general enforcement provision applicable to
Title 21 of the Alaska Statutes which provides that for any
violation of Title 21 a civil penalty of not more than $2500 may be
imposed by the state after an administrative hearing. [Fn. 21]
Although the statute is silent on the question of private
enforcement, private actions to enforce the requirements of section
.020 have been maintained and approved by this court. In State
Farm Mutual Automobile Insurance Co. v. Harrington this court ruled
that an insured could enforce in a private action the minimum
limits mandate of AS 21.89.020(c) as well as the nonwaiver
requirement of AS 21.89.020(e). [Fn. 22] We ruled similarly
concerning AS 21.89.020(c) and the requirements for mandatory
UM/UIM coverage in Title 28 in Burton v. State Farm Fire and
Casualty Co. [Fn. 23] But in these cases the defense that AS
21.89.020 was not privately enforceable was not raised.
By contrast, in O.K. Lumber Co. v. Providence Washington
Insurance Co. we held that a third-party claimant does not have a
private claim against an insurance company under the Unfair Claims
Settlement Practices Act, AS 21.36.125. [Fn. 24] In so holding we
noted that the act prohibited repeated practices, not a single
incident of misconduct, and therefore "does not readily lend itself
to enforcement by a private cause of action arising from a single
claim." [Fn. 25] We also observed that the act contained an
elaborate enforcement system, "giving rise to an implication of
exclusivity." [Fn. 26] Further, we stated that the act prohibited
many different types of conduct, some of which were relatively
minor, and that the standards concerning whether or not violations
were committed were often imprecise. [Fn. 27] Balanced against
these characteristics were the relatively modest monetary sanctions
imposed for statutory violations. [Fn. 28] In consideration of all
of these factors we concluded that an implied private right of
action in favor of a third-party claimant would be inappropriate
with respect to the Unfair Claims Settlement Practices Act. [Fn.
29]
Section 874A of the Restatement (Second) of Torts (1979)
discusses a number of factors that are helpful in determining
whether or not a private cause of action should be implied based on
a statute. We have followed section 874A in a number of cases.
[Fn. 30] Although our O.K. Lumber opinion does not cite section
874A, most of the reasons which we give for not implying a cause of
action based on the statute there are reasons that are similar to
the factors listed in this section of the Restatement. [Fn. 31]
But when these factors are applied to AS 21.89.020, they indicate
that a private cause of action should be allowed.
Section 874A lists six factors: (1) The nature of the
legislative provision -- is it clear and specific or broad and
general? (2) The adequacy of existing remedies -- are they
sufficient to accomplish the policy of the provision or do they
require supplementation? (3) Will allowing an implied tort action
based on the statutory provision interfere with statutory remedies
or supplement existing means of enforcement? (4) The significance
of the purpose of the legislative provision. (5) The extent of the
change in tort law that permitting an implied cause of action would
bring about. (6) The burden the new implied tort cause of action
will place on judicial machinery. We will briefly discuss these
factors as they apply to AS 21.89.020(c) and (e).
As to the first factor, the offer requirement of
subsection .020(c) and the waiver-in-writing requirement of
subsection .020(e) are both clear and specific, easily lending
themselves to usage in a private tort action. And, unlike the
Unfair Claims Settlement Practices Act involved in O.K. Lumber, a
single act of violating either subsection .020(c) or (e) is a
violation of the statute.
Concerning the second and third factors relating to the
adequacy of existing remedies and the effect that a private tort
action would have on existing remedies, the statutory remedy for
violations of Title 21 is expressed in AS 21.90.020. It is a civil
penalty of not more than $2500 assessed by the state in administra-
tive proceedings before the Division of Insurance. This is the
sole statutory remedy applicable to subsections .020(c) and (e).
Again this contrasts with the multiple remedies described in O.K.
Lumber with respect to the Unfair Claims Settlement Practices Act.
[Fn. 32] The $2500 penalty is relatively modest, and the
enforcement resources of the Division of Insurance are necessarily
limited. Without a tort remedy it seems likely that many
violations of the requirements of subsections (c) and (e) would go
unredressed. Further, it is difficult to see how providing an
implied tort remedy could interfere with state enforcement. The
tort action should provide a meaningful incentive to insurance
companies to comply with the statutory requirements.
Concerning the significance factor, it seems sufficient
to observe that compliance with subsections .020(c) and (e) is not
a minor matter. The legislature has concerned itself since 1984
with making UM/UIM coverages available to the public. [Fn. 33] And
more generally, the objective of adequate compensation for those
who are injured in motor vehicle accidents by the fault of another
has been recognized since statehood. [Fn. 34] The legislature
stated in the preamble to the Motor Vehicle Safety Responsibility
Act as follows:
The legislature is concerned over the
rising toll of motor vehicle accidents and the suffering and loss
inflicted by them. The legislature determines that it is a matter
of grave concern that motorists be financially responsible for
their negligent acts so that innocent victims of motor vehicle
accidents may be recompensed for the injury and financial loss
inflicted upon them.[ [Fn. 35]]
As indicated above, permitting a private tort remedy for violations
of subsection (c) and (e) will advance the achievement of this
objective.
With respect to the extent of the change in tort law,
permitting a private action based on subsections (c) and (e) will
not make a drastic change. As the Harrington [Fn. 36] and Burton
[Fn. 37] cases demonstrate, private actions based on statutory
violations of section .020 have been maintained for at least a
decade without the present objection being raised. Likewise,
concerning the sixth factor, burden on the courts, the statutory
requirements of those sections are specific and not difficult to
apply. We anticipate that no significant increase in litigation
will be brought about by permitting private actions based on these
sections.
Based on the foregoing, we conclude that private tort
actions may be brought based on violations of AS 21.89.020(c) and
(e).
3. AS 21.89.020(c) and (e) Do Not Give Rise to Enforceable
Duties Against Insurance Agents.
Last Frontier points out that, by their own terms, AS
21.89.020(c) and (e) only mandate conduct by insurance companies,
not by insurance agents. Last Frontier therefore argues that it
cannot be liable for an implied tort based on a statute that does
not govern its conduct.
Peter counters that Last Frontier had an agency agreement
with Progressive requiring Last Frontier to comply with all
applicable laws relating to the sale of insurance in Alaska. As
such, Peter argues that Last Frontier was responsible by contract
with Progressive for compliance with the statutory requirements
contained in subsections .020(c) and (e). Second, Peter contends
that as a policy matter insurance agents should be liable for
failing to comply with subsections .020(c) and (e) because it is
generally agents rather than insurance companies who directly
communicate with the insurance-buying public.
In response to Peter's first point, the contract between
Progressive and Last Frontier does not delegate to Last Frontier an
obligation to satisfy Progressive's duties under the Alaska
Statutes. Further, even if Last Frontier breached its contractual
duties to Progressive by violating the requirements of subsections
.020(c) and (e), Last Frontier would not be liable to the Peters on
that ground alone. "An agent who . . . fails to perform duties to
his principal is not thereby liable to a person whose economic
interests are thereby harmed." [Fn. 38]
In response to Peter's policy argument, it is true that
sometimes a statute may form the basis for a common-law remedy
which extends beyond the scope of the statute. [Fn. 39] We do not
believe that this is an appropriate case for such a remedy. The
legislative objective of ensuring that high limit coverage is made
available to all Alaskans can likely be achieved with reasonable
comprehensiveness even if the duty to offer such coverage is
restricted to insurance companies. The legislature could well have
believed that there was no reason to impose a redundant duty on
insurance agents.
We note also that although other states have similar
statutes explicitly requiring insurers to offer uninsured and
underinsured motorist coverage, courts in those states have
declined to imply a cause of action against insurance agents for
violations of those statutes. [Fn. 40]
For these reasons, we conclude that AS 21.89.020(c) and
(e) do not give rise to an implied cause of action against
insurance agents in cases where their principals did not comply
with the requirements of those subsections, nor should they serve
as the basis for imposing a common-law duty on insurance agents.
4. There Are Genuine Issues of Material Fact as to Whether
Progressive Violated Its Duty Under AS 21.89.020(c) to Offer
Optional Limits.
Last Frontier and Progressive take issue with Donita's
assertion that the Peters would have purchased higher limits if she
had known that higher limits were available. They point out that
in policies that the Peters purchased in 1993 and again in 1997 the
Peters selected minimum coverage, even though they clearly were
advised as to the availability of higher limit coverage as to those
policies. Last Frontier and Progressive also argue that the Peters
have had trouble making payments on their insurance policies,
pointing out that the policy in question and the prior two policies
owned by the Peters were canceled for nonpayment. They assert that
this cancellation history is evidence that the Peters would not
have selected higher limits because the premiums for a higher limit
policy would have been greater and such a policy would be even more
difficult for the Peters to maintain. Responding in part to these
arguments, Peter noted that they had a policy with limits of
100/300 from 1990 to 1993.
Alaska Statute 21.89.020(c) clearly requires that policy
purchasers be offered the sets of optional limits described in
subsection .020(c)(2). But Peter contends that such offers must be
made in writing. Finding no textual basis for this argument, we
reject it. But there is an unresolved factual question as to
whether the availability of the optional limits prescribed by
subsection .020(c) was communicated in any form to Donita.
Last Frontier argues that this question is mooted because
Donita's assertion that the Peters would have purchased higher
limits had they known they were available is insufficient to create
a genuine issue of material fact on that point. It bases this
argument on the fact that both before and after buying the policy
in question the Peters purchased minimal limit policies in
circumstances in which they were fully advised of the available
options. In support, Last Frontier cites Sykes v. Melba Creek
Mining, Inc., where we stated that "there is little probative value
to be found in self-serving testimony by parties concerning their
subjective intent upon entering into a contract." [Fn. 41] Last
Frontier also refers to Martech Construction Co. v. Ogden
Environmental Services, Inc., where we noted that a "naked
assertion" by a litigant of an agreement to pay for certain
equipment which is supported by no references to corroborating
evidence was insufficient to create a genuine issue of material
fact. [Fn. 42] Last Frontier also relies on Yurioff v. American
Honda Motor Co., where we observed that to create a genuine issue
of material fact there must be more than a "scintilla" of contrary
evidence. [Fn. 43]
Although Donita's affidavit is in her interest and thus
can be described as self-serving, we do not believe that it is
insufficient to create a genuine issue of material fact. What
Donita would have done had higher limits been offered is a
speculative subject. But it is a subject on which personal and
self-interested testimony is both admissible and necessary to show
a loss. Further, although Donita's assertion of what she would
have done respecting the 1994 policy is in conflict with what she
did with respect to the 1993 and 1997 policies, it is nonetheless
consistent with the policy the Peters owned from 1990 to 1993.
Finally, we do not regard the evidence that conflicts with her
assertion to be so compelling as to render her affidavit merely a
"scintilla" of evidence.
For these reasons we conclude that there is also a
genuine issue of material fact as to whether the Peters would have
purchased higher limits if they had been offered.
5. Alaska Statute 21.89.020(e) Does Not Require the Written
Waiver of Optional Limits Not Selected.
The superior court ruled that section .020 requires only
a written waiver of UM/UIM bodily injury and property damage
coverages and does not require that each set of optional limits
described in subsection .020(c) be rejected in writing. Peter
argues that this interpretation is erroneous.
The text of subsection (e) makes a distinction between
"coverage required" and "optional limits." "Coverage required"
must be waived in writing, but "optional limits" in the second
sentence of (e) is a subject separate from required coverage. The
"coverage required" by subsections (c) and (d) is UM/UIM for bodily
injury and UM/UIM for property damage. This coverage must be
purchased unless the buyer waives it in writing. If the coverage
is not waived in writing, it must be for the minimum limits
prescribed in subsection .020(c) and (d). The higher limits that
must be offered under subsection .020(c)(2)(A)-(E) need not be
accepted. They are thus optional rather than required.
That subsection .020(e) refers to waiver "in whole or in
part" does not cast doubt on the superior court's ruling. The "in
part" language recognizes that some purchasers may wish to buy
UM/UIM bodily injury coverage but not property damage coverage.
For purchasers whose vehicles are already covered by collision
insurance, UM/UIM property damage coverage may be duplicative. The
forms in the record indicate that buyers may select UM/UIM bodily
injury coverage while rejecting UM/UIM property damage coverage.
That the "in part" language of subsection .020(e) does
refer to a written waiver of the optional limits that must be
offered in subsection .020(c) is also plain for another reason.
Subsections (c) and (e) were added to the statute in 1984. [Fn. 44]
As originally enacted subsection (c) contained only the mandatory
minimum requirements expressed in the present subsections (c) and
(c)(1). The optional limits contained in subsection (c)(2) were
not added to the statute until 1990. But subsection (e) has been
unchanged since 1984. Thus the "in part" references in subsection
(e) were not intended to refer to the optional limits in (c)(2)
because the latter did not exist when (e) was written.
6. The Superior Court Did Not Err in Refusing to Grant a
Continuance for Additional Discovery.
Peter argues that the superior court should have
permitted additional discovery under Civil Rule 56(f). [Fn. 45]
Although Peter indicated in his briefing to the superior court that
additional discovery was necessary, he did not file an affidavit as
required by Rule 56(f) showing why he could not currently present
facts essential to his opposition. [Fn. 46] Further, as we are
reversing as to Peter's fact-dependent claims and remanding for
further proceedings, any possible error is mooted because there
will be an opportunity for further discovery on remand. For these
reasons, we conclude that Peter has not demonstrated that he is
entitled to any relief based on his argument that he needed a
continuance to do more discovery.
CONCLUSION
The superior court's summary judgment in favor of Last
Frontier is AFFIRMED as to Peter's claim that Last Frontier failed
to offer higher limits of coverage as required by AS 21.89.020(c),
but REVERSED as to Peter's claim based on a common-law duty to
advise. The superior court's grant of summary judgment in favor of
Last Frontier and Progressive is AFFIRMED with respect to Peter's
claim based on an alleged violation of AS 21.89.020(e). The
superior court's grant of summary judgment in favor of Progressive
is REVERSED with respect to Peter's claim that Progressive failed
to offer higher limits of coverage as required by AS 21.89.020(c).
This case is REMANDED for further proceedings.
FOOTNOTES
Footnote 1:
AS 21.89.020 provides in relevant part:
(c) An insurance company offering
automobile liability insurance in this state for bodily injury or
death shall, initially and at each renewal, offer coverage
prescribed in AS 28.20.440 and 28.20.445 or AS 28.22 for the
protection of the persons insured under the policy who are legally
entitled to recover damages for bodily injury or death from owners
or operators of uninsured or underinsured motor vehicles. The
limit written may not be less than the limit in AS 28.20.440 or AS
28.22.101. Coverage required to be offered under this section must
include the following options:
(1) policy limits equal to the limits
voluntarily purchased to cover the liability
of the person insured for bodily injury or
death;
(2) except when the coverage consists of
motorcycle liability insurance, and except for a named insured
required to file proof of financial responsibility under AS 28.20
or an applicant required to file proof of financial responsibility
under AS 28.20, policy limits in the following amounts when these
limits are greater than those offered under (1) of this subsection:
(A) $100,000 because of bodily injury to
or death of one person in one accident, and, subject to the same
limit for one person, $300,000 because of bodily injury to or death
of two or more persons in one accident;
(B) $300,000 because of bodily injury to
or death of one person in one accident, and, subject to the same
limit for one person, $500,000 because of bodily injury to or death
of two or more persons in one accident;
(C) $500,000 because of bodily injury to
or death of one person in one accident, and, subject to the same
limit for one person, $500,000 because of bodily injury to or death
of two or more persons in one accident;
(D) $500,000 because of bodily injury to
or death of one person in one accident, and, subject to the same
limit for one person, $1,000,000 because of bodily injury to or
death of two or more persons in one accident;
(E) $1,000,000 because of bodily injury
to or death of one person in one accident, and, subject to the same
limit for one person, $2,000,000 because of bodily injury to or
death of two or more persons in one accident;
(3) other policy limits at the option of
the insurer.
(d) An insurance company offering
automobile liability insurance in this state for injury to or
destruction of property shall offer coverage prescribed in AS
28.20.440 and 28.20.445, or AS 28.22, with limits not less than
those prescribed in AS 28.20.440 or AS 28.22.101, to cover the
insured person's liability for injury to or destruction of
property, for the protection of the persons insured under the
policy who are legally entitled to recover damages for injury to or
destruction of the covered motor vehicle from owners or operators
of uninsured or underinsured motor vehicles.
(e) The coverage required under (c) and
(d) of this section may be waived in writing by the insured in
whole or in part. After selection of the limits by the insured or
the exercise of the option to waive the coverage in whole or in
part, the insurer is not required to notify any policy holder in
any renewal, supplemental, or replacement policy, as to the
availability of the coverage or optional limits, and the waived
coverage may not be included in any renewal, supplemental, or
replacement policy. The insured may, at any time, make a written
request for additional coverage or coverage more extensive than
that provided on a prior policy.
Footnote 2:
See, e.g., Murphy v. Kuhn, 682 N.E.2d 972 (N.Y. App. 1997);
Nelson v. Davidson, 456 N.W.2d 343 (Wis. 1990); see also Farmers
Ins. Co. v. McCarthy, 871 S.W.2d 82 (Mo. App. 1994).
Footnote 3:
Peter cites such Alaska cases as Johnson & Higgins of Alaska,
Inc. v. Blomfield, 907 P.2d 1371 (Alaska 1995); Tripp, Inc. v.
Kenneth A. Murray Ins., Inc., 600 P.2d 1361 (Alaska 1979); Eagle
Air, Inc. v. Corroon & Black/Dawson & Co., 648 P.2d 1000 (Alaska
1982); Austin v. Fulton Ins. Co., 444 P.2d 536 (Alaska 1968);
Continental Ins. Co. v. Bayless & Roberts, Inc., 608 P.2d 281
(Alaska 1980); and Gudenau & Co. v. Sweeney Ins., Inc., 736 P.2d
763 (Alaska 1987).
Footnote 4:
See Eagle Air, 648 P.2d at 1006.
Footnote 5:
Murphy, 682 N.E.2d at 974.
Footnote 6:
See Jones v. Grewe, 234 Cal. Rptr. 717, 721 (Cal. App. 1987);
Suter v. Virgil R. Lee & Son, Inc., 754 P.2d 155, 157 (Wash. App.
1988).
Footnote 7:
See, e.g., Fitzpatrick v. Hayes, 67 Cal. Rptr. 2d 445, 452
(Cal. App. 1997); Harts v. Farmers Ins. Exchange, 597 N.W.2d 47,
51-52 (Mich. 1999); Nelson v. Davidson, 456 N.W.2d 343, 347 (Wis.
1990). See also, e.g., Mullins v. Commonwealth Life Ins. Co., 839
S.W.2d 245, 248 (Ky. 1992); Gabrielson v. Warnemunde, 443 N.W.2d
540, 543-44 (Minn. 1989); Trotter v. State Farm Mut. Auto. Ins.
Co., 377 S.E.2d 343, 346 (S.C. App. 1988); Suter v. Virgil R. Lee
& Son, Inc., 754 P.2d 155, 157 (Wash. App. 1988).
Footnote 8:
Murphy, 682 N.E.2d at 976.
Footnote 9:
Nelson, 456 N.W.2d at 346.
Footnote 10:
Farmers Ins. Co., 871 S.W.2d at 86.
Footnote 11:
Jones, 234 Cal. Rptr. at 721.
Footnote 12:
See, e.g., Fitzpatrick, 67 Cal. Rptr. 2d at 452 (holding that
general "no duty" rule will not apply if, inter alia, the agent
misrepresents the nature, extent, or scope of the coverage being
offered or provided); Harts, 597 N.W.2d at 50-51 (holding that
general "no duty" rule will not apply if, inter alia, the agent
misrepresents the nature or extent of the coverage offered or
provided).
Footnote 13:
See, e.g., Harts, 597 N.W.2d at 52 (holding that general "no
duty" rule will not apply if, inter alia, (1) an inquiry is made
that may require advice and the agent, though he need not, gives
advice that is inaccurate, or (2) the agent assumes an additional
duty by either express agreement or promise to the insured).
Footnote 14:
See, e.g., Fitzpatrick, 67 Cal. Rptr. 2d at 452 (holding that
general "no duty" rule will not apply if, inter alia, there is a
request or inquiry for a particular type or extent of coverage).
Footnote 15:
See Harts, 597 N.W.2d at 52 (holding that general "no duty"
rule will not apply if, inter alia, an ambiguous request is made
that requires clarification).
Footnote 16:
See id. at 52 n.11 ("An example of an ambiguous request
for coverage that might in certain circumstances require
clarification is the request for 'full coverage.'"); Small v. King,
915 P.2d 1192, 1994 (Wyo. 1996) (holding that request for "full
coverage" is not a specific inquiry about a specific type of
coverage).
Footnote 17:
Cf. Murphy, 682 N.E.2d at 974 (recognizing that insurance
agent has well-established common-law duty to provide, or attempt
to provide, requested level of coverage).
Footnote 18:
See Harts, 597 N.W.2d at 52 (holding that special
relationship can be created if agent gratuitously chooses to offer
advice).
Footnote 19:
See id. (holding that special relationship can be created
if agent fails to clarify an ambiguous request).
Footnote 20:
See Eagle Air, 648 P.2d at 1006 (holding that insurance agent
owes insured duty of reasonable care).
Footnote 21:
See AS 21.90.020.
Footnote 22:
918 P.2d 1022, 1025-26 (Alaska 1996).
Footnote 23:
796 P.2d 1361, 1363 (Alaska 1990).
Footnote 24:
759 P.2d 523, 526-27 (Alaska 1988).
Footnote 25:
Id. at 527.
Footnote 26:
Id.
Footnote 27:
See id.
Footnote 28:
See id.
Footnote 29:
See id.
Footnote 30:
See Alaska Marine Pilots v. Hendsch, 950 P.2d 98, 104-05
(Alaska 1997); Thoma v. Hickel, 947 P.2d 816, 822-23 (Alaska 1997);
Plancich v. State, 693 P.2d 855, 859 n.9 (Alaska 1985).
Footnote 31:
Compare O.K. Lumber, 759 P.2d at 526-27 with Restatement
(Second) of Torts sec. 874A.
Footnote 32:
O.K. Lumber, 759 P.2d at 527.
Footnote 33:
See ch. 70, sec. 12, SLA 1984; Progressive Ins. Co. v.
Simmons,
953 P.2d 510, 514 (Alaska 1998).
Footnote 34:
See AS 28.20.010.
Footnote 35:
Id.
Footnote 36:
918 P.2d at 1025-26.
Footnote 37:
796 P.2d at 1363.
Footnote 38:
Restatement (Second) of Agency sec. 357 (1958).
Footnote 39:
See Hanebuth v. Bell Helicopter Int'l, 694 P.2d 143, 146
(Alaska 1984). In explaining this proposition in Hanebuth we
quoted the following language from the Supreme Court of the United
States in Moragne v. States Marine Lines, 398 U.S. 375, 392 (1970):
It has always been the duty of the common law
court to perceive the impact of major legislative innovations and
to interweave the new legislative policies with the inherited body
of common law principles -- many of them deriving from earlier
legislative exertions.
The legislature does not, of course,
merely enact general policies. By the terms of a statute, it also
indicates its conception of the sphere within which the policy is
to have effect. In many cases the scope of a statute may reflect
nothing more than the dimensions of the particular problem that
came to the attention of the legislature, inviting the conclusion
that the legislative policy is equally applicable to other
situations in which the mischief is identical. . . . On the other
hand, the legislature may, in order to promote other, conflicting
interests, prescribe with particularity the compass of the
legislative aim, erecting a strong inference that territories
beyond the boundaries so drawn are not to feel the impact of the
new legislative dispensation.
694 P.2d at 149.
Footnote 40:
See, e.g., Macabio v. TIG Ins. Co., 955 P.2d 100, 111-12
(Haw. 1998); Robinson v. Charles A. Flynn Ins. Agency, 653 N.E.2d
207, 208 (Mass. App. 1995).
Footnote 41:
952 P.2d 1164, 1170 n.12 (Alaska 1998).
Footnote 42:
852 P.2d 1146, 1149-50 n.7 (Alaska 1993).
Footnote 43:
803 P.2d 386, 389 (Alaska 1990).
Footnote 44:
See ch. 70, sec. 3, SLA 1984.
Footnote 45:
Alaska Civil Rule 56(f) provides:
Should it appear from the affidavits of a
party opposing the motion that the party cannot for reasons stated
present by affidavit facts essential to justify the party's
opposition, the court may refuse the application for judgment or
may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such
other order as is just.
Footnote 46:
See Munn v. Bristol Bay Hous. Auth., 777 P.2d 188, 193 (Alaska
1989) (requiring such an affidavit).
