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COURT OF APPEALS DECISION DATED AND RELEASED March 20, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0134
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
REDGIE STASKAL and
MELLY STASKAL,
Plaintiffs-Appellants,
GOLDEN RULE INSURANCE
COMPANY,
a foreign insurance
corporation,
Plaintiff,
v.
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,
a Wisconsin insurance
corporation, and
STEPHEN E. WRIGHT,
Defendants-Respondents,
CYNTHIA L. YOUNT,
BOBBIE J. YOUNT and
MILWAUKEE MUTUAL
INSURANCE CORPORATION,
a Wisconsin insurance
company,
Defendants.
APPEAL from an order of
the circuit court for Walworth County:
JOHN R. RACE, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER
CURIAM. Redgie and Melly Staskal appeal from an order granting
summary judgment to American Family Mutual Insurance Company and Stephen E.
Wright (collectively Wright). The trial
court ruled that there was no express agreement between Redgie Staskal and
Wright, his insurance agent, that Wright would advise him with respect to
underinsured motorist coverage. We
affirm.
Redgie Staskal was
injured in September 1990 when his car was rear-ended by a vehicle driven by
Cynthia Yount.[1] At the time of the accident, the Staskals
did not have underinsured motorist coverage and were underinsured for the
damages arising from the accident with Yount.
The Staskals sued American Family and Wright on the grounds that Wright
failed to advise Redgie of the availability and advisability of underinsured
motorist coverage.
The trial court
considered the submissions on summary judgment and concluded that there were no
factual issues which brought this case within the three special circumstances
set forth in Nelson v. Davidson, 155 Wis.2d 674, 456 N.W.2d 343
(1990), which can create a duty on the part of an insurance agent to advise an
insured regarding coverage.
On review, we apply the
summary judgment methodology set forth in § 802.08, Stats., in the same manner as the trial court. Green Spring Farms v. Kersten,
136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Where, as here, the pleadings state a claim for relief, see
Brownelli v. McCaughtry, 182 Wis.2d 367, 372, 514 N.W.2d 48, 49
(Ct. App. 1994), we examine the moving party's submissions to determine if they
make a prima facie case for summary judgment. Id. If they do, we turn to the opposing party's
submissions to determine whether there are any material issues of fact in
dispute which would entitle the opponent to a trial. Id. at 372-73, 514 N.W.2d at 49-50. In the absence of material issues of fact,
summary judgment is appropriate. See
Rach v. Kleiber, 123 Wis.2d 473, 478, 367 N.W.2d 824, 827 (Ct.
App. 1985).
On appeal, the Staskals
argue that there were material factual issues as to whether Redgie had an
express agreement with Wright to advise him regarding insurance coverage. We agree with the trial court that the
Staskals' submissions in opposition to summary judgment did not establish the
existence of such factual issues.
An insurance agent does
not have an affirmative duty to advise an insured about insurance coverage
absent special circumstances. Nelson,
155 Wis.2d at 685, 456 N.W.2d at 347.
These special circumstances include:
(1) an express agreement between the agent and the insured; (2) a
long-established relationship of entrustment from which it clearly appears that
the agent appreciated the duty of giving advice and the agent received
compensation for this consultation and advice beyond the agent's standard
commission; and (3) the agent held himself or herself out as a highly-skilled insurance
expert, and the insured relied on the expertise of the agent to the
insured's detriment. Lisa's Style
Shop v. Hagen Ins. Agency, 181 Wis.2d 565, 573, 511 N.W.2d 849, 852-53
(1994) (citing Nelson).
The Staskals' arguments
on appeal are limited to the first type of special circumstance: whether an express agreement existed between
Redgie Staskal and his insurance agent.
Accordingly, we similarly limit ourselves and review the parties'
summary judgment submissions to determine whether there was a genuine issue of
material fact as to the existence of an express agreement.
According to his
affidavit in support of summary judgment, Stephen Wright has sold
homeowners and automobile insurance to the Staskals since approximately
1982. Wright's compensation was the
standard commission he received based upon the standard insurance premiums the
Staskals paid; the Staskals never separately compensated him for consultation
or advice about insurance matters.
Wright denied the existence of an express agreement that he would advise
the Staskals about their specific insurance needs. Wright never made any changes to the Staskals' insurance policies
unless he was authorized to do so by them.
Wright also submitted
excerpts from Redgie Staskal's deposition.
In those excerpts, Staskal stated that he placed his
business-related worker's compensation, health and life insurance with other
insurers. Staskal acknowledged that in
the years he had insurance with Wright, he and Wright discussed the cost of
insurance and the possible benefits and Staskal would determine whether a
particular type of coverage should be placed on a particular vehicle. Staskal stated that the coverages on the
vehicle involved in the accident were recommended by Wright and agreed to
by him and changes in his automobile insurance coverage were made only after
Staskal authorized them.[2]
In his disposition,
Staskal conceded the absence of a written agreement that Wright would take care
of all his insurance needs and that he had never asked Wright to review all of
the possible coverages available under an automobile liability policy. However, at some point, Staskal informed
Wright that he felt Wright was looking out for his insurance needs and he was
going to accept policy changes as they came through. Staskal believed he and Wright had "an agreement and understanding
that [Wright] would take care of my insurance needs." Staskal did not request underinsured
motorist coverage before the September 1990 accident because he "figured
[Wright] was taking care of my insurance needs."[3]
Based on these
submissions, Wright argued that he did not have an affirmative duty under Nelson
to inform Redgie Staskal about the availability or adequacy of his insurance
coverage because none of the special circumstances described in Nelson
existed. We conclude that Wright's
submissions made a prima facie case for summary judgment.
In opposition to
Wright's summary judgment motion, Staskal submitted excerpts from his deposition
and an affidavit. In his affidavit,
Staskal stated that Wright handled his home and automobile insurance needs and
that on several occasions, Wright made "unilateral changes in my insurance
coverage without consulting me first."
He stated that on other occasions Wright recommended insurance coverage
and he always accepted Wright's recommendations. Staskal trusted Wright to advise him regarding his insurance
needs and he made Wright aware of that trust by indicating he would no longer
call Wright to discuss coverage issues. Staskal stated that "Stephen
Wright agreed to accept this position of trust," and that he and
Wright expressly agreed that Wright would take care of Staskal's insurance
needs by informing him of the coverage he needed. Notwithstanding this alleged agreement, Wright failed to
recommend that Staskal obtain underinsured motorist coverage.
We conclude that the
Staskals' submissions did not create factual issues regarding the existence of
an express agreement which would bring this case within one of the special
circumstances described in Nelson. Redgie Staskal's allegations that he trusted Wright to advise him
regarding his insurance needs and that he followed Wright's
recommendations amount to no more than allegations that Staskal relied upon and
had great confidence in Wright. Such
allegations are insufficient to suggest the existence of an affirmative duty to
advise Staskal concerning the availability or advisability of underinsured
motorist coverage. See Nelson,
155 Wis.2d at 684, 456 N.W.2d at 347.
Staskal's allegation that he and Wright had an express agreement is
unsupported by evidentiary facts. The
Staskals' submissions were insufficient to create factual issues necessitating
a trial on the question of whether the parties had an express agreement. See Hopper v. City of Madison,
79 Wis.2d 120, 130, 256 N.W.2d 139, 143 (1977).
In order to raise a
factual question regarding the existence of an express agreement, a summary
judgment affidavit must offer evidentiary facts suggesting a mutual meeting of
the minds and an intention to contract.
See Theuerkauf v. Sutton, 102 Wis.2d 176, 183, 306
N.W.2d 651, 657 (1981) (quoted source omitted). While Redgie Staskal's affidavit alleges that Wright agreed to
accept a position of trust with regard to the handling of the Staskals'
insurance needs, it does not offer any evidence from which Wright's concurrence
in mental intent can be inferred. While
the Staskals were not required to prove the existence of an express agreement
in order to survive Wright's summary judgment motion, they were required to allege
evidentiary facts supporting the existence of such an agreement. They did not do so, and therefore summary
judgment was appropriate.
Redgie Staskal's claim
that he and Wright expressly agreed that Wright would take care of his
insurance needs is further undermined by the following undisputed facts. Staskal contacted other agents regarding
insurance and placed his health, worker's compensation and life insurance with
other agents and insurers. Staskal
assessed the cost and benefit of coverages before ordering them from
Wright. Staskal declined to insure
additional real estate with American Family because the premiums were too
high. These facts do not suggest the
existence of an express agreement that Wright would handle all of the Staskals'
insurance needs.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Bobbie Yount owned the vehicle Cynthia was driving. The claims against the Younts and their insurer, Milwaukee Mutual Insurance Company, were settled and are not the subject of this appeal.