The authorities defendants cite reflect that this rule applies to cases involving failure to procure insurance coverage as requested or agreed upon. ( Lippert v. Bailey (1966) 241 Cal.App.2d 376, 378-379, 381-382 [50 Cal.Rptr. 478]; Gasnik v. State Farm Ins. Co. (E.D.Cal. 1992) 825 F.Supp. 245, 248-249.) But the present cause of action charges intentional misrepresentation, or fraud.
Defendants rely on the general rule that "[liability] to the . . . insured for acts or contracts of an insurance agent within the scope of his agency, with a full disclosure of the principal, rests on the company." Opposition to Motion to Remand, filed August 7, 2002, ("Opposition") at 4:19-22 citing Lippert v. Bailey, 241 Cal.App.2d 376, 382, 50 Cal.Rptr. 478 (1966). Defendants contend that the Korbases acted only as agents for Allstate and that this agency was fully disclosed.
However, it dismissed Aleck's negligence claims against the tellers with prejudice, and held, citing an intermediate California court of appeal case, that the tellers had no duty of care to Aleck. Lippert v. Bailey, 50 Cal. Rptr. 478, 482 (Ct. app. 1966) (holding that insurance agents could not be held individually liable for their alleged negligent invasion of an insured's contractual rights by failing to obtain adequate insurance coverage). Aleck appeals this ruling solely as to her negligence-based claims (that is, claims 3 and 7) against the tellers.
Under California law, there is a general rule that "an insurance agent whose principal is disclosed cannot be held individually liable to an insured." Quiroz, 2005 WL 1806366, at *5 (citing Lippert v. Bailey, 241 Cal. App. 2d 376, 382 (1966)). Courts have recognized exceptions to this general rule, including (1) the dual agency exception and (2) the "special duty" exception.Id. (citing Macey, 220 F. Supp. 2d at 1120).
) This apparent failure to recognize dual-agency seems particularly unusual in light of the Griffin court's citations to Kurtz, Richards and Lippert v. Bailey, 241 Cal.App.2d 376. 382, 50 Cal.Rptr. 478 (1966). Lippert expressly (in dicta) recognizes that an insured can recover against an insurance agent on a dual agency theory and Kurtz, Richards cites Lippert for that proposition.
Defendants assert that under California law, an insurance agent, acting within the scope of her agency for a disclosed insurance agency, is an improper defendant. The California Court of Appeal in Lippert v. Bailey, 241 Cal.App.2d 376, 382, 50 Cal.Rptr. 478 (1966), held that liability to the insured "for acts or contracts of an insurance agent within the scope of his agency, with a full disclosure of the principal, rests on the company." See also, Kurtz, Richards, Wilson Co., Inc. v. Insurance Communicators Marketing Corporation, 12 Cal.App.4th 1249, 1257-58, 16 Cal.Rptr.2d 259 (1993) (in a negligence case, "where the agent contracts in the name of the insurer and does not exceed that authority, the insurer is liable, and not the agent").
They involve derivative liability, not joint and several liability. For example, in Lippert v. Bailey (1966) 241 Cal.App.2d 376, 50 Cal.Rptr. 478, the plaintiff was precluded from suing insurance agents after he settled with the insurance company for the same loss. Because these agents had no liability apart from that of their principal (id. at p. 382, 50 Cal.Rptr. 478 ), the defendants were in privity with the insurance company, and were thus effectively the same parties for purposes of preclusion.
"Where the signature as agent and not as a principal appears on the face of the contract, the principal is liable and not the agent." (Lippert v. Bailey (1966) 241 Cal.App.2d 376, 382 (Lippert); see generally Rest., Agency, §§ 156-157.) "Any signature or description from which it appears that the parties intend that the principal and not the agent shall be a party is efficacious in creating an inference that the principal is a party.
"Where the signature as agent and not as a principal appears on the face of the contract, the principal is liable and not the agent." (Lippert v. Bailey (1966) 241 Cal.App.2d 376, 382 (Lippert); see generally Rest., Agency, §§ 156-157.) "Any signature or description from which it appears that the parties intend that the principal and not the agent shall be a party is efficacious in creating an inference that the principal is a party.
“Where the signature as agent and not as a principal appears on the face of the contract, the principal is liable and not the agent.” (Lippert v. Bailey (1966) 241 Cal.App.2d 376, 382 (Lippert); see generally Rest., Agency, §§ 156-157.) “Any signature or description from which it appears that the parties intend that the principal and not the agent shall be a party is efficacious in creating an inference that the principal is a party.