Indeed, this Court has made seemingly inconsistent pronouncements, at times calling for a case-by-case analysis, see Kann , 344 Md. at 713, 690 A.2d 509, and at other times, making a blanket assertion that "Maryland does not recognize a separate tort action for breach of fiduciary duty." Int'l Bhd. of Teamsters v. Willis Corroon Corp. of Md. , 369 Md. 724, 727 n.1, 802 A.2d 1050 (2002). Litigants pick and choose which statement they believe to be controlling, depending on which outcome benefits their position.

Further, life insurance, including the financing of its purchase, is a complex field, which even a businessperson, astute in another field, might not fully understand. See Willis Corroon, 369 Md. 724, 740-41, 802 A.2d 1050. This is especially so when the price of the policy — the premiums required — will depend upon the future earnings of the insurance company, and the dividends it pays. An insurance company that distributes information to agents or brokers, with the expectation that it will be used in selling life insurance policies, must expect that the purchasers of those policies will rely on that information.

Because this case was decided by the Circuit Court for Wicomico County in a ruling upon Dashiell's motion for summary judgment, we must consider the facts in a light most favorable to Meeks as the non-moving party. International Broth. of Teamsters v. Willis Corroon Corp., 369 Md. 724, 728, 802 A.2d 1050 (2002). As this Court has stated many times, in our review of a summary judgment ruling, "we evaluate `the same material from the record and decide the same legal issues as the circuit court.'"

Freestate insists that "Maryland does not recognize a separate tort action for breach of fiduciary duty." Memo at 7 (citing Int'l Bhd. Of Teamsters v. Willis Corroon Corp. Of Maryland, 369 Md. 724, 728 n.1, 802 A.2d 1050, 1052 n.1 (2002); Kann v. Kann, 344 Md. 689, 713, 690 A.2d 509, 520-21 (1997)). Although Freestate's assertion sweeps broadly, I agree that in this case any purported breach of fiduciary duty does not "constitute a stand alone nonduplicative cause of action."

This is true for another reason. Maryland courts generally do not recognize breach of fiduciary duty as a stand alone tort. Kann v. Kann, 344 Md. 689, 713, 690 A.2d 509 (1997) ("[T]here is no universal or omnibus tort for the redress of breach of fiduciary duty by any and all fiduciaries."); International Brotherhood of Teamsters v. Corroon, 369 Md. 724, 727 n. 1, 802 A.2d 1050 (2002) ("Maryland does not recognize a separate tort action for breach of fiduciary duty."). A distinction may exist between an action seeking equitable relief, which may give rise to "a separate cause of action for breach of fiduciary duty," and a claim for monetary damages at law, which does not constitute a separate cause of action.

To be sure, under Maryland law, parties may change the terms of their contract by remaining silent if, in light of a previous course of dealing, the offeree was obligated to notify the offer or that he is not willing to accept the revised terms. See Int'l Bhd. of Teamsters v. Willis Corroon Corp., 369 Md. 724, 738 n. 3, 802 A.2d 1050 (2002) (citing Restatement (Second) of Contracts § 69 (1981)); Porter v. Gen. Boiler Casing Co., 284 Md. 402, 411-12, 396 A.2d 1090 (1979). When that course of dealing includes an explicit agreement that the offeree's continuation of a contractual relationship after receiving notice of the proposed change constitutes acceptance of the change, courts may enforce that agreement by finding that the offeree's silence constituted either actual or constructive acceptance of the contract change.

We begin by noting that, in the context of the provision of insurance, "[i]t is generally accepted … that, when an insurance broker is employed to obtain a policy that covers certain risks and the broker fails (1) to obtain a policy that covers those risks, and (2) to inform the employer that the policy does not cover the risks sought to be covered, an action may lie against the broker, either in contract or in tort." Int'l Brotherhood of Teamsters v. Willis Corroon Corp., 369 Md. 724, 737 (2002) (emphasis added). Here, Cap Mona, Three Palms, and Clinton Investment Group brought actions both in contract (breach of contract) and in tort (negligence, negligent misrepresentation, and breach of fiduciary duty).

She asserts that Kann v. Kann, 344 Md. 689, 690 A.2d 509 (1997), a case relied on by appellees in support of their motion to dismiss, "did not eliminate entirely in Maryland an independent cause of action for breach of fiduciary duty." The Court's clarification of its Kann holding in International Brotherhood of Teamsters v. Willis Corroon Corp. of Maryland, 369 Md. 724, 802 A.2d 1050 (2002), however, refutes her interpretation of Kann. In outlining this claim, Ms. Vinogradova's complaint alleged:

that when an insurance broker is employed to obtain a policy that covers certain risks and the broker fails: (1) to obtain a policy that covers those risks, and (2) to inform the [insured] that the policy does not cover the risks sought to be covered, an action may lie against the broker, either in contract or in tort.'” Goucher College v. Continental Cas. Co., 541 F.Supp.3d 642, 649 (D.Md. 2021) (quoting Int'l Bhd. of Teamsters v. Willis Corroon Corp. of Md., 369 Md. 724, 737 (2002)).

That order, and its underlying opinion, highlighted Judge Bennett's statements in Colden v. West Coast Life Ins. Co., No. RDB-12-1691, 2013 WL 1164922 (D.Md. March 19, 2013), unaddressed by either party, that relied on two Maryland Court of Appeals cases recognizing a right under Maryland law for a third-party beneficiary to a life insurance contract to sue an insurance agent under a breach of contract theory. See Colden, 2013 WL 1164922, at *4-6 (citing Int'l Bhd. of Teamsters v. Willis Corroon Corp. of Md., 802 A.2d 1050, 1057-58 (Md. 2002) and Jones v. Hyatt Ins. Agency, 741 A.2d 1099 (Md. 1999)). The Eremahs filed their response on November 2, 2020, (ECF No. 22), and Assurity Life filed its response on November 3, 2020.