The insureds’ suit against their agent for procuring an inadequate policy was dismissed with leave to amend. Pennington v. United States Assure Ins. Servs. of Fla, Inc., et al., 2025 U.S. Dist. LEXIS 82529 (N.D. Calif. April 30, 2025).
Plaintiffs Thomas and Kelli Pennington sued defendants US Assure Insurance Services of Florida, Inc, (US Assure) and John M. Brown Insurance Agency, Inc. (Brown) for procuring an incorrect policy. US Assure and Brown were insurance brokers.
Plaintiffs alleged they sought to remodel their home. They requested a quote for a “Builder’s Risk Policy” from Brown by filling out a form on Brown’s website. The form included an option to select “Remodel” as the project type, which plaintiffs selected. Plaintiffs then received a proposal from Brown for a “Builders Risk and Installation” policy, presented by US Assure and delivered to plaintiffs by Brown. Plaintiffs believed that the proposed policy was the policy that they had requested on Brown’s website. Plaintiffs signed the proposal and the policy was issued by Zurich American Insurance Company.
After plaintiffs began their remodeling project, fire damaged the property’s garage. Plaintiffs filed a claim with Zurich, but learned that the policy was for covering new construction, not a remodeling project. As a result, Zurich denied the claim and cancelled the policy. Brown then sent a policy cancellation notice to plaintiffs which explained the cancellation was due to plaintiffs having a remodeling project and the policy was issued incorrectly as new construction. Plaintiffs were left uninsured.
Plaintiffs sued US Assure and Brown for negligent failure to obtain insurance coverage and negligent misrepresentation. US Assure moved to dismiss.
California recognized the general rule that an agent or broker who intentionally or negligently fails to procure insurance as requested by a client is liable to the client in tort for the resulting damages. An insurance agent had an obligation to use reasonable care, diligence, and judgment in procuring insurance requested by the insured. Here, plaintiffs’ pleadings did not support a reasonable inference that US Assure had a duty to plaintiffs to procure remodeling insurance as opposed to new construction insurance. The complaint only alleged that US Assure was licensed to do business in California and that US Assure “presented” the policy that was ultimately delivered to plaintiffs by Brown. Such bare allegations were not enough to meet the pleading standards under Fed. R. Civ Proc. 12 (b) (6). US Assure’s motion to dismiss the negligence claim was granted with leave to amend.
Plaintiffs also failed to state a claim against US Assure for negligent misrepresentation. Again, the only factual allegations against US Assure were that US Assure was licensed to do business in California, and that US Assure “presented” the policy. It was not clear what false representation US Assure made or why US Assure would lack reasonable grounds for believing those representations to be true. There were no allegations that US Assure made any false representation as to what the policy would cover. Therefore, US Assure’s motion to dismiss this claim was granted with leave to amend,