Judge: Ronald F. Frank, Case: 21TRCV00431, Date: 2023-04-13 Tentative Ruling
Case Number: 21TRCV00431 Hearing Date: April 13, 2023 Dept: 8
Tentative Ruling¿
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HEARING DATE: April 13, 2023¿¿
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CASE NUMBER: 21TRCV00431
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CASE NAME: Erin Hughs v.
Maritza, et al
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MOVING PARTY: Defendant, Farmers Insurance Exchange
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RESPONDING PARTY: Plaintiff, Erin Hughes
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TRIAL DATE: July 10, 2023
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MOTION:¿ (1) Motion for Summary Judgment
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Tentative Rulings: (1) GRANTED
I. BACKGROUND¿¿
A. Factual¿¿
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Plaintiff
Erin Hughes (“Plaintiff”) is the owner of property located at 2145 Rambla
Pacifico in Malibu, California 90265 (the “Property”). Since the Property is in
a brush fire zone, Plaintiff’s only option for fire insurance was to purchase
it from California Fair Plan (“CFP”), California’s fire insurer of last resort.
Besides purchasing a policy from CFP to insure the Property against the peril
of fire (the “CFP Policy”), Plaintiff also purchased a supplemental homeowners’
policy from Farmers Insurance Exchange (“Farmers”) to cover other perils not
covered by the CFP Policy (the “Farmers Policy”). Plaintiff purchased the CFP
Policy and the FIE Policy with the assistance of defendant Maritza Hartnett
(“Hartnett”).
Less
than one month after purchasing both the CFP Policy and the FIE Policy, the
Property was destroyed in a fire. After the fire damaged her Malibu Property,
Plaintiff made a claim for insurance benefits to CFP as well as Farmers, and
claims that she then learned that she was grossly underinsured by Hartnett for
the peril of fire as well as deprived of additional coverage which Hartnett did
not include such as Extended Coverage, Vandalism, and Mischief.
On
June 14, 2022, Plaintiff filed a complaint against Hartnett and Farmers alleging
causes of action for: (1) Professional Negligence (against Hartnett); (2)
Negligent Misrepresentation (against Hartnett); (3) Breach of Fiduciary Duty
(against Hartnett); and (4) Negligence (against Farmers). The basis of
Plaintiff’s claim against Farmers is that Hartnett acted as an agent for
Farmers in the course and scope of her employment with Farmers. (Complaint
(“Compl.”), ¶ 24.) Plaintiff asserts that Farmers breached their duty of care
by failing to properly train and supervise Hartnett and are vicariously liable
for the acts of Hartnett. (Compl., ¶ 25.)
The
Court previously issued a tentative ruling in this case on January 19, 2023,
but granted a continuance of the hearing on the request of Plaintiff so that
Plaintiff could conduct additional discovery bearing on a further opposition to
the then-pending motion.
Farmers’
Motion for Summary Judgment argued that Plaintiff’s vicarious liability
argument fails as a matter of law because Hartnett was not an actual agent of
Farmers with respect to the CFP Policy, because her conduct in procuring the
CFP Policy for Plaintiff falls outside the scope of the Agent Appointment
Agreement (“Agent Agreement) she had with Farmers. Defendant also argues that
Hartnett was also not an ostensible agent of FIE in connection with the CFP
Policy because Plaintiff cannot point to any act or statement by Farmers when
she procured the CFP Policy.
B. Procedural¿¿
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On October 31, 2022, Defendant,
Farmers Insurance Exchange filed this motion for summary judgement. On January
6, 2023, Plaintiff filed an opposition. On January 13, 2023, Defendant filed a
reply brief.
On March 1, 2023, Plaintiff filed a
supplemental brief in opposition to Defendant, Farmers Insurance Exchange’s
Motion for Summary Judgment. On March 3, 2023, Defendant Farmers Insurance
Exchange filed a reply brief to the supplemental opposition.
On March 8, 2023, on the Court’s own
motion, the Motion for Summary Judgment was continued a second time, to enable Plaintiff
to complete discovery bearing on her opposition.
On April 4, 2023, Plaintiff filed a
Supplemental Opposition to Defendant, Farmers Insurance Exchange’s Motion for
Summary Judgment, to which Framers replied on April 10, 2023.
II. REQUEST FOR JUDICIAL
NOTICE
Defendant has requested that this
Court take judicial notice of: (1) The Complaint filed by Plaintiff, Erin
Hughes (“Plaintiff”) in this action on June 14, 2021; and the “About FAIR Plan”
located at https://www.cfpnet.com/about-fair-plan/. The Court GRANTS
Plaintiff’s request for judicial notice of these two exhibits.
On April 4, 2023, Plaintiff filed
a Request for Judicial Notice in support of Plaintiff’s Opposition to the
Motion for Summary Judgment. Plaintiff requested that this Court take judicial
notice of the following:
1. The
attached record of the Sonoma County Superior Court February 2, 2022 decision
by the Honorable Gary Nadler in the matter of Gary Koop v. Farmers Insurance
Exchange, Case No: SCV-266944 attached as EXHIBIT “7”;
2.
The Complaint filed by Plaintiff in the underlined case attached as EXHIBIT “8”
The Court GRANTS Plaintiff’s
request and takes judicial notice of the above.
Farmers’ April 10, 2023 Reply
papers attach two additional trial-level notices of rulings in other cases filed
in Los Angeles County Superior Court, but there was no accompanying request for
judicial notice.
III. EVIDENTIARY OBJECTIONS
Defendant’s Objections to
Plaintiff’s Evidence
Sustained: I(A)(5).
Overruled: I(A)(1-4, 6-10),
II(A)(1-4.)
IV. ANALYSIS¿
A. Legal Standard
The Court’s prior Tentative Ruling outlined the
well-established standards for a trial court in considering a motion for
summary judgment, which need not be repeated here.
B. Discussion
Farmers moves for summary judgement on the basis that: (1)
the single cause of action for negligence plead by Plaintiff against Farmers is
based on vicarious principles, and Farmers asserts that is has no liability
since the alleged negligent conduct by insurance agent Hartnett falls outside
the scope of the agency relationship between Hartnett and Farmers.
Vicarious Liability
“An
insurer, as a principal, may be vicariously liable for the torts of its agent
if the insurer directed or authorized the agent to perform the tortious acts,
of if it ratifies acts it did not originally authorize. (Desai v. Farmers
Ins. Exch. (1996) 47 Cal.App.4th 1110, 1118.) Further, an insurer owes a
fiduciary duty to conduct itself with the utmost good faith for the benefit if
its insured. (Id. at 1119.)
Farmers asserts that Hartnett was not an actual agent. An
“insurance agent” is a person “authorized by and on behalf of an insurer, to
transact all classes of insurance other than life insurance.” (Ins. Code § 31.) An “insurance broker” is a “person who, for
compensation and on behalf of another person, transacts insurance other than
life with, but not on behalf of an insurer.” (Ins. Code § 33.) A broker
represents the insured; he or she “does not act for the insurer.” As such,
Defendant argues that because Hartnett was an insurance broker, she was not
acting on behalf of Farmers and, therefore, that an “insurer is not liable
for the broker’s acts or omissions.” (Krumme v. Mercury Ins. (2004) 123
Cal.App.4th 924, 929.) “An independent
insurance broker is not an agent of the insurer, but rather is an agent of the
insured.” (Marsh & McLennan of
Cal., Inc. v. City of Los Angeles (1976) 62 Cal.App.3d 108, 117.) Here, the evidence tends to show that Hartnett
was a Farmer’s agent with respect to Farmers’ coverages, but that she acted as
a broker with respect to the fire coverage Farmers did not offer but CFP did.
Ostensible Agent
Farmers argues that in order to prove ostensible agency,
the proponent must present evidence “based on the acts of declarations of the
principal and not solely upon the agent’s conduct.” (Emery v. Visa
International Services Ass’n. (2002) 95 Cal.App.4th 952, 961.) As such,
Farmers asserts that since selling an insurance policy issued by CFP is not within
the scope of Hartnett’s actual agency relationship with the Farmers Insurers,
Plaintiff is required to prove that Hartnett was an ostensible agent of Farmers
with respect to the CFP Policy. Farmers further contends that the mere fact
that Hartnett is allowed to use the Farmers® logo in her business does not
create an ostensible agency relationship with FIE as respects the CFP Policy
In
support of her argument that a triable issue of material fact exists as to
whether Hartnett was an ostensible agent of Farmers, Plaintiff asserts that the
CFP Endorsement CA121 was included in the Farmers Policy, Farmers collecting
premiums for the policy, Hartnett sold Plaintiff the CFP policy and Farmers
policy as a packaged deal while working for Farmers, using their offices,
logos, and materials. (Opposition, Exhibit A, B.) Plaintiff also asserts that the fact that
Hartnett and Farmers entered into a contractual agreement with Farmers as to
which insurance she was required to sell to Plaintiff under the circumstances,
has no effect on the Plaintiff since she had no knowledge of the existence of
such contract. In sum, Plaintiff argues that Hartnett was an ostensible agent
because Farmers retained control over operation of Hartnett instructing her
which business she could accept through Farmers or place with other companies,
controlled her income, and allowed her to use the Farmers logo on all paperwork
in Plaintiff’s case and contracting terms.
In
reply, Farmer argues that in response to the CFP Endorsement CA121, signed by
Plaintiff on January 8, 2021, the one-paged document only makes one reference
to CFP. The statement says: “this endorsement restricts and eliminates coverage
under your policy for any peril which is covered or which is available for
coverage by additional purchase under a California Fair Plan Association policy
(‘the FAIR Plan policy’) whether or not you actually purchase coverage for any
such peril.” (Exhibit 11 at attached to Declaration of Gustavo Garcia.) Farmers
argues that this statement, in no way, suggests that Farmer’s agent, Hartnett,
would act on behalf of Farmers is if she were to assist Plaintiff in purchasing
a CFP policy. Farmer further argues that any claim that Plaintiff did not
understand that CFP is separate from Farmers is contradicted by her admission
that she previously insured her property against the peril of fire with CFP. (Motion,
Exhibit 5 at p. 6, RFA #17 attached to Declaration of Christopher R. Wagner
(“Wagner Dec.”).)
Next,
Farmer responded to Plaintiff’s assertion that “Farmers collected premiums for
the [CFP] policy,” by noting that this claim is refuted by the Agent Agreement,
which only charges Hartnett to “collect” and “remit” “monies due the
Companies…” (Motion, Exhibit 9, p. 1, ¶ B.2.) Farmers argues that even if this
were true, this collection of premiums would not constitute an “act or
declaration” by Farmers that might reasonable cause Plaintiff to believe
Hartnett was acting on behalf of Farmers when she helped Plaintiff procure the
CFP policy. Farmer also emphasizes that Plaintiff’s assertion that Hartnett
sold Plaintiff the CFP policy and Farmers policy as a packaged deal is false
and insufficient to prove ostensible agency.
In response to Plaintiff’s argument involving Hartnett’s
use of the Famers logo, offices, and materials, Farmers argues that Hartnett was
designated as an “independent contractor” in the Agent Agreement. As such, she
was responsible for “provid[ing] the facilities necessary to furnish
professional insurance services to all policyholders of the Companies.” (Motion,
Exhibit 9, p. 1, ¶ B.2.) As such, Farmers argues that Hartnett’s physical
office was hers, not theirs. Additionally, Farmers argues that Plaintiff’s
argument regarding Hartnett’s use of Farmers logo ignores the rule that “mere
licensing of trade names foes not create agecy relationships ether ostensible
or actual.” (Cislaw v. Southland Corp. (1992) 4 Cal.App.4th 1284, 1288,
quoting Beck v. Arthur Murray, Inc. (1966) 245 Cal.App.2d 976, 981.)
Lastly, in response to Plaintiff’s argument that Farmers
breached its duty of care by failing to properly train and supervise Hartnett,
Farmers refers back to the Agent Agreement confirming that Hartnett’s principal
duties under the agreement were “[t]o sell, solicit, and service insurance for
the Companies and to submit to the Companies every request or application for
insurance for the classes and lines of insurance underwritten by the
Companies…” (Motion, Exhibit 9, p. 1, ¶ A.1.) Farmers contends that there is
nothing in the Agent Agreement obligating it to train Hartnett with regard to insurance
products sold by a different company, CFP. Farmers further argues that Plaintiff
does not present any evidence that Farmers owed a duty to train Hartnett on CFP
products.
In the alternative, Plaintiff’s opposition also asserts
that Plaintiffs are entitled to a continuance of the hearing on this motion due
to an inability to conduct discovery pursuant to California Code of Civil
Procedure 473(c)(h). However, Farmers argues that this request should be denied
because it asserts that Plaintiff’s counsel’s declaration is devoid of any
facts showing how the discovery sought is necessary to resist the summary
judgment motion, and because Plaintiff’s opposition does not meet the
requirements of Code of Civil Procedure, section 437(h) requiring Plaintiff to
explain why facts may exist but cannot, for reasons stated, be presented.
In Plaintiff’s supplemental opposition, with regard to
the issue of agency, Plaintiff again asserts that Hartnett was an actual and
ostensible agent of Farmers. Here, Plaintiff argues that Farmers issued the
policy and then afterward allowed the application for the policy which
contained numerous inaccuracies to be signed and entered after the policy was
already issued, then sent a letter to Plaintiff on January 12, 2021 with the
wrong replacement cost as well as containing the wrong description of the property
based on mistakes of Hartnett. Plaintiff argues that Hartnett acted as a
Farmers agent when she used Farmers’ 360 Value software to qualify the
Plaintiff for her DIC policy with Farmers. Because Plaintiff argues that these
actions made Hartnett an agent, Plaintiff also argues that Farmers breached
their duty of care by failing to properly train and supervise Hartnett and are
vicariously liable for the acts of Hartnett as Plaintiff argues in paragraph 25
of the Complaint as well as negligently underinsuring the property of
Plaintiff, negligent cost replacement estimation by the estimator used by
Farmers, and failing to match the overage in the FAIR plan policy when issuing
a DIC Farmers Policy.
In opposition, Farmers argues that Hartnett was not an
actual or ostensible agent of Farmers. First, it cites to its Agent Appointment
Agreement between Hartnett and Farmers which notes that she is only an agent
for Farmers and related Farmers® insurers when she obtains insurance for these
companies. She is not an agent of FIE when she procures products from
non-Farmers® insurers, like CFP. (See Exhibit 9 (Agent Agreement) at p. 1
attached to Declaration of Zoltan Nagy.) Next, Farmers argues that Hartnett was
not an ostensible agent of Farmers noting that Hartnett testified at her
deposition that she never represented to Plaintiff that the CFP policy was part
of a deal that Plaintiff could purchase through Farmers. (Ro Decl. ¶ 5, Ex. 3,
Hartnett Depo., 148:9-13.) Defendant points out that according to Hartnett,
there were “no discounts for the California Fair Plan attached to anything that
has to do with [Farmers]” (Ro Decl. ¶ 5, Ex. 3, Hartnett Depo., 158:8-14) and
there was “no bundle deal” offered to Plaintiff for Hartnett’s procurement of
both the Farmers Policy and the CFP Policy (Ro Decl. ¶ 5, Ex. 3, Hartnett
Depo., 150:24-151:16).
Farmers
also argues that Plaintiff cannot show that Hartnett offer any
discounts for Plaintiff’s
purchase of both the CFP Policy and the Farmer’s Policy because the two
companies “were not related.” (Ro Decl. ¶ 5, Ex. 3, Hartnett Depo.,
150:24-151:16.) On the contrary, Defendant contends that the only discount
Plaintiff received from Farmers for procuring the Farmers Policy was due to the
fact that Plaintiff already had an automobile policy from Farmers. Defendant
asserts that this auto discount had nothing to do with the CFP Policy. (Ro
Decl. ¶ 5, Ex. 3, Hartnett Depo., 150:24-151:8; 154:12-16). Defendant further
argues that even if Hartnett had made a statement regarding a “packaged
discount deal” as alleged by Plaintiff, this would not have been an “act or
declaration” by Farmers. However, such an “act or declaration” by the alleged
principal (not by the alleged agent) is required to prove ostensible agency.
Emery, supra, 95 Cal.App.4th at 961; Morse, supra, 152 Cal.App.2d at 857.)
Next,
with regard to Plaintiff’s argument that Hartnett was an ostensible agent of
Farmers at the time she procured the CFP Policy because Hartnett received
commissions from both Farmers and CFP for the policies she obtained from each
company, Farmers argues that Hartnett testified at deposition that, while she
received a commission from Farmers for the procurement of the Farmers Policy
(Ro Decl. ¶ 5, Ex. 3, Hartnett Depo., 20:1-3), she received a separate
commission from CFP for the procurement of the CFP Policy (Ro Decl. ¶ 5, Ex. 3,
Hartnett Depo., 21:21- 22:14). The fact that Hartnett received separate
commissions from separate companies does nothing to advance Plaintiff’s
ostensible agency argument.
Farmers also argues that Plaintiff’s “training” argument
has no merit. Farmers argues that since the Farmers Policy excludes coverage
for the peril of fire, any allegation that Farmers failed to adequately train
Hartnett with regard to the Farmers Policy is irrelevant to this case. Defendant
notes that this is confirmed by the CFP Endorsement signed by Plaintiff
indicating that the Farmers Policy does not cover fire losses. (See Exhibit
11.) Defendant further notes that to the extent Plaintiff complains about the
training Hartnett received from Farmers regarding CFP products, the undisputed
evidence is that Hartnett did not receive training from Farmers regarding CFP
products. (See Ro Decl. ¶ 5, Ex. 3, Hartnett Depo., 11:2-8; 144:6-13.)
Actual
Agency Revisited
Since the Court’s previous review of this motion, Plaintiff
has filed a Second Supplemental Opposition. In this opposition, Plaintiff
argues that in her deposition on March 17, 2023 Hartnett testified that she
represents insurance companies she is appointed with as an agent including
Farmers Insurance Exchange which is confirmed by her agency agreement with
Farmers. (See Hartnett’s 03-17-2023 Deposition, page 80:3-13; 97: 9-15.)
Further, Plaintiff offers that Farmers marketed Hartnett as their agent with
actual authority by stating that she is Farmer’s agent on Hughes’ application
for their policy (HARTNETT 000005) as well as their website (Exhibit 20-21),
and the policy itself. Plaintiff further notes that Hartnett has an email from Farmers’
which she used to send vital policy documents to Erin Hughes (Page 80, lines
18-20) and the sign above her office has a Farmer’s logo (Hartnett’s deposition
page 305:7-11, Exhibit 24). Additionally, Plaintiff asserts that her Agency
agreement allowed her to sell insurance for Farmers as an agent (Hartnett’s
deposition Exhibit 22, page 95, lines 14-17, page 103, lines 15- 20.)
Plaintiff further contends that Hartnett testified that
she entered the name, date of birth and address for Erin Hughes in the “360
Quote” Farmers system to generate the quote and application, and that he rest
of the information in the application was populated and generated by the
Farmer’ system itself (Hartnett deposition Page 138, 12-17; page 139 :18-20;
page 140, 7-9 the system generates the application; page 163, 3-8.) Plaintiff
further asserts that Hartnett than used that 360 Value tool used by Farmers to
generate the dwelling replacement coverage estimate for Farmers at $1,205,000
which she then provided to Fair Plan to obtain coverage with Fair Plan so that
Farmers policy could be bound with the CFP endorsement.
Plaintiff has also added evidence of the Deposition of
Leslie Clark (“Clark”), the senior underwriter for Farmers. Plaintiff notes
that Clark testified that agents enter certain information into 360 and the
rest is prefilled from Farmer’s 360 vendor Verisk and then agents for Farmers
should verify that information. (Clark deposition P. 23: 3-5, Clark Depo, Page
29:22-24 agent generates the application.) Plaintiff also points out that Clark
also testified that prior losses information is automatically filled in on the
application by Farmer’s vendor Verisk-A and the agent can enter them as well.
Plaintiff contends that in this case no prior losses were found by Verisk
despite Farmers later denying coverage based on prior losses. (Clark 72:5-7,
Page 73- 18-22.) Plaintiff claims that here and again, Farmer’s vendor made
mistakes in the 360 report used by Farmers for this policy and the agent failed
to verify the prefilled information with Hughes. Plaintiff notes that Clark
testifies that no one in underwriting verifies the 360 estimator replacement
cost figures and the inspection of the Hughes property took place after the fire.
(Page 63, 12-24, page 64: 1-5.) As such, Plaintiff argues that by failing to
verify the replacement cost estimation with Hartnett or vital information regarding
the Hughes property such as number of stories, square footage, number of
garages which were all populated incorrectly in the 360 system by Farmers,
Hartnett caused underinsurance of the property. (See Hartnett deposition 162:
9-11; 163:2-8; 185:14-18.)
Plaintiff argues that due to failure to verify the
replacement cost estimation with Hughes or accuracy of vital information
regarding the Hughes property such as number of stories, square footage, number
of garages which were all entered or populated incorrectly in the 360 system by
Farmers and Hartnett they caused underinsurance of the property by Farmers and
California Fair Plan and misinformed Hughes regarding available coverage. (See
March 1, 2023 Supplemental Declaration of Hughes, ¶ 5.)
In its further supplemental opposition, Defendant argues
that Plaintiff’s argument about the FIE 360 Value tool makes no sense. (See
Second Suppl. Opp. at p. 3:24-8:19.) Defendant notes that although Harnett
testified that she submitted to CFP the same information for the procurement of
the CFP Policy that she had submitted to Farmers for the Farmers Policy (Ro
Decl. ¶ 6, Exhibit 5, Hartnett Depo., p. 39:2-20), there is no evidence that Hartnett
used Farmer’s 360 Value tool in obtaining CFP Policy, nor could this have
occurred since CFP uses its own reconstruction estimating tool. (Ro Decl. ¶ 6,
Exhibit 5, Hartnett Depo., p. 55:18-22.) However, Defendant notes that even if
Hartnett had used FIE’s 360 Value tool to procure the CFP Policy, it would not
change the fact that Hartnett procured the CFP Policy – not on behalf of Farmers
– but as a registered broker of CFP. (Ro Decl. ¶ 6, Exhibit 5, Hartnett Depo.,
pp. 147:11-16.)
Next, Plaintiff argues that CFP and Farmers were joint
venturers when they gained the insurance business of Hughes, shared the
profits, losses and expenses of the Plan in direct proportion of market share
and each paid commission to Hartnett with a common business undertaking of
gaining insurance business for profit of homeowners whose houses are within
certain fire risk uninsurable by Farmers. Plaintiff suggests Hartnett is a
licensed agent registered to be “a broker” of California Fair Plan so she can
sell CFP insurance and gain more commission. (Hartnett deposition page 265:
10-19.) Plaintiff notes that the “broker” is simply a boilerplate term used by
CFP however, in this situation, Plaintiff claims Hartnett acted as an agent for
Farmers when she secured the CFP policy and coverage using the 360 tools used
by Farmers, worked from her Farmers office and used Farmers email and
proprietary letterhead and 360 tools. Plaintiff also notes that Hartnett received
a commission from both Farmers and California Fair Plan and was required by
Farmers to provide a CFP policy to Farmers so that Farmers coverage could be
approved by underwriting. (Hartnett deposition Page 213:14-21.)
However, Plaintiff argues that neither Hartnett nor
Farmers notified Plaintiff in writing before her policy was issued that Farmers
did not cover rental activity on the property and that her policy was “useless.”
Plaintiff asserts that she relied on
Hartnett and Farmers that she would be covered by Farmers and did not obtain
another policy that would have covered her policy and allowed for rentals.
(Hartnett deposition ¶ Page 245 9-12 never told Hughes that she would not be
covered if she was doing rentals
on property Page 256, 17-22 knew on December 10, 2022 that the property was
rented and failed to warn Hughes that Farmers would not cover her if there was
rentals. Thus, Plaintiff argues that because CFP were acting as joint
venturers, Farmers is estopped from denying liability for their actions. The
Court disagrees.
As noted in Defendant’s opposition, Plaintiff brings
forth the joint venture argument for the first time in this supplemental
briefing. Defendant argues that the evidence actually undermines Plaintiff’s
“joint venture” theory. For example, Defendant notes that FIE’s PMK, Leslie
Clark, testified that there was no communication between FIE and CFP in the
underwriting process. (Ro Decl. ¶ 5, Exhibit 4, Depo. of FIE PMK – Leslie
Clark, pp. 105:22- 106:4.) Defendant also asserts that FIE’s other PMK, Mark
Blaha, testified that there is no collaboration between FIE and CFP with
respect to the FIE Policy; he also confirmed that the CFP and FIE are “two
different [insurance] carriers”. (Ro Decl. ¶ 4, Exhibit 3, Depo of FIE PMK –
Mark Blaha (“Blaha Depo.”), p. 42:2-14.) Further, Plaintiff contends that
Hartnett testified that she understood that FIE and CFP were two unrelated
insurers. (Ro Decl. ¶ 6, Exhibit 5, Hartnett Depo., 143:25-144:2.) Defendant
points to further Hartnett testimony noting that she procured a CFP Policy for
Plaintiff as a registered CFP broker (not as an agent of FIE). (Ro Decl. ¶ 6,
Exhibit 5, Hartnett Depo., p. 147:11-19. Additionally, Defendant notes that FIE
never paid commissions to Hartnett for the procurement of the CFP Policy. Defendant
asserts Hartnett testified at deposition that, while she received a commission
from FIE for the procurement of the FIE Policy (Ro Decl. ¶ 6, Exhibit 5,
Hartnett Depo., p. 20:1-3), she received a separate commission from CFP for the
procurement of the CFP Policy (Ro Decl. ¶ 6, Exhibit 5, Hartnett Depo., pp.
21:21-22:14).
The Court agrees that the evidence does not support a
joint venture argument, regardless of the problematic fact that such a legal
argument was raised for the first time in a supplemental briefing. There is no triable issue of material fact as
to whether Hartnett acted as an actual agent for Farmers in connection with the
evaluation or procurement of the firm policy which Farmers did not offer but
which Hartnett obtained from CFP.
Ostensible Agency,
Revisited
Plaintiff
also argues, again, that Hartnett was an ostensible agent of Farmers.
Plaintiff’s supplemental briefing only provides that Farmers issued the policy
and then afterward allowed the application for the policy which contained
numerous inaccuracies to be signed and entered after the policy was already
issued, then sent a letter to the Plaintiff on January 12, 2021 with the wrong
replacement cost as well as containing the wrong description of the property
based on mistakes of Hartnett. Plaintiff continues that Hartnett acted as a Farmers
agent when she used Farmers’ 360 Value software to qualify the Plaintiff for
her DIC policy with Farmers (citing Hartnett Deposition generally). In
Defendant’s opposition it argues that Plaintiff still fails to provide any
evidence demonstrating an “act or declaration” of FIE that might reasonably
have caused Plaintiff to believe Hartnett was acting on behalf of FIE when
Hartnett procured the CFP Policy.
In
the Court’s previous ruling, it noted that Plaintiff had not presented
sufficient evidence for the ostensible agency issue to reach a jury, and that Farmer’s
had carried its initial burden on a motion for summary judgment by presenting
facts to establish a defense to the negligence cause of action. Here,
Plaintiff’s analysis section for ostensible agency, in its supplemental
briefing and evidence and RFJN, offers no new evidence to raise a triable issue
of material fact to carry her shifted burden as to the ostensible agency issue.
Farmers met its initial burden on this MSJ, and Plaintiff
has not presented a triable issue bearing on either direct or vicarious
liability that might warrant a trial on the negligence cause of action against
Farmers.
V. CONCLUSION¿¿
¿¿¿
For the foregoing reasons, Defendant’s
Motion for Summary Judgment GRANTED. The causes of action against Hartnett
still stand, however.
Moving party is ordered to give notice.¿¿¿¿
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