Opinion
No. 13–P–1806.
09-29-2014
Donald KLEYKAMP & another v. USAA CASUALTY INSURANCE COMPANY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a judgment in favor of their insurance company, USAA Casualty Insurance Company (USAA), entered on summary judgment. At issue is whether the plaintiffs presented sufficient evidence from which a finder of fact could conclude that “special circumstances” existed between the plaintiffs and USAA, such that USAA had a duty to recommend the purchase of underinsured motorist coverage. The motion judge concluded that the plaintiffs would be unable to meet that burden at trial because it was undisputed that the plaintiffs never specifically inquired of USAA regarding underinsured motorist coverage, and USAA never made any specific assertions or representations about the adequacy of the plaintiffs' automobile insurance coverage. For substantially the reasons set forth in the judge's memorandum of decision, we affirm.
We agree with the motion judge that the situation might well have been different were the question of special circumstances to have arisen in the context of the plaintiffs' homeowner's insurance coverage.
As the plaintiffs concede, the general rule in Massachusetts is that insurers and their agents do not have a general duty to recommend insurance coverage, or to guarantee that insurance policies are adequate for a particular insured's needs. See Robinson v. Charles A. Flynn Ins. Agency, Inc., 39 Mass.App.Ct. 902, 902–903 (1995) ; Martinonis v. Utica Natl. Ins. Group, 65 Mass.App.Ct. 418, 420 (2006) (“no general duty of an insurance agent to ensure that the insurance policies ... provide coverage that is adequate for the needs of the insured”). An insured can overcome this general rule only by showing that special circumstances existed that gave rise to a duty on the part of the insurer. Martinonis v. Utica Natl. Ins. Group, supra at 421. More particularly, the insured must present evidence of specific assertions or representations concerning the adequacy of coverage made to the insured, and reliance on those assertions or representations. See McCue v. Prudential Ins. Co. of America, 371 Mass. 659, 661–663 (1976) ; Martinonis v. Utica Natl. Ins. Group, supra. Whether special circumstances exist is a question of fact. McCue v. Prudential Ins. Co., supra at 661.
Viewing the undisputed facts in the light most favorable to the plaintiffs, no rational finder of fact could conclude that special circumstances existed such that USAA owed the plaintiffs a duty of care to investigate their automobile insurance needs or recommend their purchase of underinsured motorist coverage. Rather, the undisputed facts demonstrate that USAA made no representations or assertions of any kind regarding the adequacy of the plaintiffs' automobile insurance. Contrast McCue v. Prudential Ins. Co., supra at 661–663 (agent convinced plaintiffs to buy policy, then failed to inform them that their application was rejected); Martinonis v. Utica Natl. Ins. Group, supra at 421–422 (plaintiffs asked specific questions about adequacy of policy limits and were assured by agent that policy limits were proper).
The plaintiffs' conversations with USAA about their automobile insurance were utterly routine. At her deposition, plaintiff Helen Kaulbach testified that she recalled having three types of conversations with USAA agents regarding their automobile insurance prior to the accident: (1) adjusting insurance coverage for new cars; (2) reporting accidents; and (3) purchasing a separate umbrella policy that increased coverage. None of these conversations involved underinsured motorist coverage, or specific assertions as to the adequacy of the plaintiffs' automobile insurance.
We agree with the defendant that the plaintiffs' attempt to invoke Kaulbach's affidavit, in an attempt to prove that a disputed material factual issue exists, is futile. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 648 (2002) (“nonmoving party cannot create a material issue of fact and defeat summary judgment simply by submitting affidavits that contradict its previously sworn statements”).
The grant of summary judgment was proper as the plaintiffs would be unable to meet their burden of demonstrating that special circumstances existed such that USAA had a duty to recommend underinsured motorist coverage or otherwise ensure that the plaintiffs' automobile insurance was adequate.
Because we decide that the judge did not err in granting summary judgment on the basis that no special circumstances existed to create a duty of care, we need not address USAA's alternative argument that the plaintiffs were estopped from asserting a claim because they accepted the insurance policy provided by USAA.
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Judgment affirmed.