Delicious v. Bbva

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

DELICIOUS DELIVERIES PHOENIX, INC. dba DELICIOUS
DELIVERIES, an Arizona corporation, Plaintiff/Appellant,

v.

BBVA COMPASS INSURANCE AGENCY, INC. dba COMPASS
INSURANCE AGENCY PHOENIX, a foreign corporation,
Defendant/Appellee.

No. 1 CA-CV 14-0585
FILED 2-16-2016

Appeal from the Superior Court in Maricopa County
No. CV2011-021795
The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

Jaburg Wilk, Phoenix
By Thomas S. Moring
Counsel for Plaintiff/Appellant

The Hassett Law Firm, P.L.C., Phoenix
By Myles P. Hassett, Julie K. Moen, Jamie A. Glasser
Counsel for Defendant/Appellee
 DELICIOUS v. BBVA
Decision of the Court

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Kenton D. Jones and Judge Samuel A. Thumma joined.

S W A N N, Judge:

¶1 An insured asserted a negligence claim against an insurance
agent based on the agent’s conduct in reporting and following up on
claims that the insurer ultimately denied. We affirm the superior court’s
grant of summary judgment in the agent’s favor. The insured failed to
produce facts sufficient to generate a triable issue regarding whether the
agent owed and breached a duty of care.

FACTS AND PROCEDURAL HISTORY

¶2 BBVA Compass Insurance Agency, Inc. (“Compass”), a
licensed insurance producer under A.R.S. § 20-282, assisted Delicious
Deliveries Phoenix, Inc. (“Delicious”) in obtaining an insurance policy
from Auto-Owners Insurance Company (“Auto-Owners”). Compass
thereafter submitted two property-loss claims to Auto-Owners on
Delicious’s behalf -- one related to an alleged equipment breakdown and
one related to an alleged employee theft. Using preprinted forms,
Compass provided brief descriptions of the claims (specifically, “Insd
phone equipment was [out] for over 3 weeks and had significant loss as
well as business interruption” and “insd employee [as named] – stole
from the insd. employee dishonesty claim”), and identified available
coverages and limits.

¶3 During the claims investigation, Compass, in response to a
complaint by Delicious, asked Auto-Owners and the assigned
independent adjuster for a status report on the equipment-breakdown
claim. Both Auto-Owners and the adjuster responded that the
investigation was ongoing and that additional documentation was
needed. Compass replied that it had lost Delicious as a client because of
the claim, that Compass and Delicious were both unhappy, and that
Compass wished to discuss the employee-theft claim with Auto-Owners.
Later, Compass contacted Auto-Owners twice more; on at least one of
these occasions, Compass again requested a status report.

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Decision of the Court
¶4 Auto-Owners ultimately denied both claims. Delicious then
brought an action against Auto-Owners for breach of contract and the
implied covenant of good faith and fair dealing, and against Compass for
negligence. The complaint alleged that Compass had violated a
professional standard of care by failing to procure proper coverage, by
failing to explain the policy, and by failing to “respond or assist” Delicious
with its claims. Delicious later clarified that the cause of action against
Compass was limited to “[t]he actions and inactions of [Compass] in
evaluating available coverage and reporting the claim[s] to [Auto-
Owners]” and Compass’s conduct when it “inserted itself into the process
of adjusting the claim[s].” With respect to the claims-reporting theory,
Delicious asserted that Compass was negligent in its “review of the policy
language and determination of what information to put in the Notice[s] of
Loss,” and there was “a potential problem with the timing and reporting
in [the] claim[s].” With respect to the claims-advocacy theory, Delicious
asserted that Compass failed to “d[o] anything to assist its customer”
when it “inserted itself into the process of adjusting the claim,” and
generally failed to “do a good job of it.”

¶5 Compass moved for summary judgment, arguing that
Delicious could not prove professional negligence because it had not
disclosed an expert witness. Delicious responded that an expert was not
required because its claim was for traditional negligence, not professional
negligence. Apart from general statements of dissatisfaction, however,
Delicious provided no specific explanation of the manner in which
Compass was negligent in reporting the claims. With respect to
Compass’s conduct during the claims-investigation period, Delicious cited
an Auto-Owners employee’s deposition testimony that insurance agents
“[a]bsolutely” can advocate for their clients, and that such efforts may
affect an insurer’s coverage determination “if [the] insurance agent has
additional information that . . . may change a coverage position.”

¶6 After holding oral argument, the superior court entered
summary judgment in favor of Compass. Auto-Owners later prevailed on
the bad faith claims after a jury trial. Delicious’s appeal is limited to the
summary-judgment ruling on the negligence claims against Compass.

DISCUSSION

¶7 We review the grant of summary judgment de novo,
viewing the evidence and all reasonable inferences in the light most
favorable to the non-moving party. Andrews v. Blake, 205 Ariz. 236, 240,
¶ 12 (2003). We will affirm if summary judgment is correct on any

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Decision of the Court
ground. Rowland v. Great States Ins. Co., 199 Ariz. 577, 581, ¶ 6 (App.
2001).

¶8 Summary judgment is warranted when “there is no genuine
dispute as to any material fact and the moving party is entitled to
judgment as a matter of law.” Ariz. R. Civ. P. 56(a). A defendant is
entitled to summary judgment “if the facts produced in support of the
[plaintiff’s] claim . . . have so little probative value, given the quantum of
evidence required, that reasonable people could not agree with the
conclusion advanced by the proponent of the claim.” Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990).

¶9 To establish a negligence claim, a plaintiff must show: “(1) a
duty requiring the defendant to conform to a certain standard of care; (2) a
breach by the defendant of that standard; (3) a causal connection between
the defendant’s conduct and the resulting injury; and (4) actual damages.”
Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). Compass contends that, in
view of its status as a licensed insurance producer, Delicious was required
to comply with A.R.S. § 12-2602(A) and to prove its claim by expert
testimony. Delicious contends that the facts it produced were sufficient.

¶10 We need not decide whether an expert was required because
even assuming that Delicious’s claim was susceptible of proof by evidence
other than expert testimony, Delicious failed to produce facts sufficient to
generate a triable issue of material fact with respect to the question of
whether Compass breached a duty of care. In response to the motion for
summary judgment, Delicious provided no facts in support of its theory
that Compass was negligent with respect to the manner in which it
reported the claims. Further, Delicious provided no facts in support of its
theory that Compass’s efforts during the claims investigation (which, as
Delicious conceded at oral argument on appeal, Compass had no duty to
undertake) fell below a duty of care. The deposition testimony on which
Delicious relied established that an insurance agent may serve as a
conduit for the factual information on which an insurer bases its coverage
decisions. But Delicious did not allege that Compass failed to relay
factual information to Auto-Owners; Delicious’s theory was instead that
Compass should have acted as a more aggressive advocate.

¶11 Delicious argues that facts surrounding the conduct of
Compass in relaying information to the insurer and advocating for
coverage go only to the question of breach of duty, not existence of the
duty. With that proposition, we agree. But Delicious provided no
evidence -- expert or otherwise -- that a reasonable insurance agent in
Compass’s position should have and would have acted differently with

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Decision of the Court
respect to claims advocacy. If the record before the trial court on
summary judgment in this case were deemed sufficient to generate a
triable issue of fact, then no such claim could ever fail on summary
judgment. It is not sufficient merely to point to the fact that coverage was
denied to support an inference that an agent breached a duty -- a plaintiff
must identify evidence that shows what the agent should have done or
not done. A general assertion that the agent should have tried harder is
not evidence of negligence.

¶12 Expert testimony identifying precise failings by Compass
would no doubt have been helpful to Delicious. But no such evidence
appears in this record. Moreover, even assuming that it may be possible
in some cases to demonstrate with non-expert testimony that a licensed
agent breached a duty of care, no such evidence appears in this record.

CONCLUSION

¶13 For the foregoing reasons, we affirm the superior court’s
entry of summary judgment for Compass.

:ama

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