Wilks Et Vir v. Manobianco , 237 Ariz. 443 ( 2015 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
LESLEY WILKS AND PAUL WILKS,
WIFE AND HUSBAND,
Plaintiffs/Appellants,
v.
JOHN MANOBIANCO AND SANDRA LEE MANOBIANCO,
HUSBAND AND WIFE;
JOHN MANOBIANCO INSURANCE AGENCY, INC.,
Defendants/Appellees.
No. CV-14-0260-PR
Filed July 9, 2015
Appeal from the Superior Court in Maricopa County
The Honorable Colleen L. French, Judge Pro Tem
The Honorable Douglas L. Rayes, Judge
No. CV2010-026862
REVERSED AND REMANDED
Opinion of the Court of Appeals, Division One
235 Ariz. 246, 330 P.3d 1003 (2014)
AFFIRMED
COUNSEL:
Mick Levin (argued), Tidmore Law Offices, L.L.P., Phoenix, Attorneys for
Lesley Wilks and Paul Wilks
Myles P. Hassett (argued), Julie K. Moen, and Jamie A. Glasser, The Hassett
Law Firm, P.L.C., Phoenix, Attorneys for John Manobianco, Sandra Lee
Manobianco, and John Manobianco Insurance Agency, Inc.
WILKS v. MANOBIANCO
Opinion of the Court
Christopher Robbins and Joel DeCiancio, DeCiancio Robbins, PLC, Tempe,
Attorneys for Amicus Curiae Independent Insurance Agents and Brokers
of Arizona
David L. Abney, Knapp & Roberts, P.C., Scottsdale, Attorneys for Amicus
Curiae Arizona Association for Justice/Arizona Trial Lawyers Association
Stanley G. Feldman (argued) and Thomas G. Cotter, Haralson, Miller, Pitt,
Feldman & McAnally, P.L.C., Tucson, Attorneys for Amicus Curiae Robert
Murray and Marcia Murray
Greg S. Como, Lewis Brisbois Bisgaard & Smith, LLP, Phoenix, Attorneys
for Amicus Curiae Randy Jones and Farmers Insurance Company of
Arizona
JUSTICE BERCH authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL and TIMMER joined.
JUSTICE BERCH, opinion of the Court:
¶1 Arizona Revised Statutes § 20–259.01 requires insurers to
offer uninsured motorist (“UM”) and underinsured motorist (“UIM”)
coverage to their insureds. Insurers may prove compliance with the statute
by having their insureds sign a Department of Insurance (“DOI”) approved
form selecting or rejecting such coverage. Ballesteros v. Am. Standard Ins. Co.
of Wis., 226 Ariz. 345, 350 ¶ 20, 248 P.3d 193, 198 (2011). The issue in this
case is whether compliance with § 20–259.01 bars a negligence claim
alleging that the insurance agent failed to procure the UIM coverage
requested by the insured. We hold that it does not.
I. BACKGROUND1
¶2 For two years, Lesley Wilks had car insurance from State
1 In an appeal from the grant of summary judgment, we view the facts
and draw reasonable inferences in the light most favorable to the non-
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WILKS v. MANOBIANCO
Opinion of the Court
Farm Mutual Automobile Insurance Company, which she obtained
through John Manobianco at the Manobianco Insurance Agency
(collectively “Manobianco”). Her policy included liability and both UM
and UIM coverage. Wilks later replaced the State Farm policy with a policy
from another insurance company. A year later, she decided to switch back
to State Farm. When doing so, Wilks asked Manobianco to obtain “the exact
same coverage that [she] had previously, full coverage.” Manobianco did
not look up Wilks’s prior coverage and procured insurance that did not
include UIM coverage. In the course of signing several insurance forms,
Wilks signed the DOI-approved form, which had been filled out by
Manobianco to reject UIM coverage.
¶3 Several years later, Wilks was rear-ended by an underinsured
driver. State Farm denied the UIM claim she made under her policy. Wilks
and her husband then sued Manobianco for malpractice for failing to
procure the insurance coverage they had requested. Manobianco moved
for summary judgment, arguing that it satisfied its duty of care as a matter
of law by complying with A.R.S. § 20–259.01.
¶4 The trial court found “that [Manobianco’s] compliance with
A.R.S. § 20–259.01 demonstrated that [it] fulfilled [its] duties to Plaintiffs
regarding offering the UM/UIM coverage,” and therefore Manobianco
“breached no duty owed to Plaintiffs.” The court of appeals reversed. Wilks
v. Manobianco, 235 Ariz. 246, 330 P.3d 1003 (App. 2014). Relying on Darner
Motor Sales, Inc. v. Universal Underwriters Insurance Co., 140 Ariz. 383, 397,
682 P.2d 388, 402 (1984), the court reaffirmed that insurance agents owe
their clients a common law duty of reasonable care. Wilks, 235 Ariz. at 248
¶¶ 7–10, 330 P.3d at 1105. The court then held that A.R.S. § 20–259.01(B)
did not abolish that duty because the statute does not apply to insurance
agents, and it is not broad enough to bar common law negligence claims
against them. Id. at 249–50 ¶¶ 14–17, 330 P.3d at 1106–07.
¶5 We granted review because § 20–259.01’s effect on the
common law duty of insurance agents is a potentially recurring issue of
prevailing party. BMO Harris Bank, N.A. v. Wildwood Creek Ranch, LLC, 236
Ariz. 363, 365 ¶ 7, 340 P.3d 1071, 1073 (2015).
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WILKS v. MANOBIANCO
Opinion of the Court
statewide importance. We have jurisdiction pursuant to Article 6, Section
5(3) of the Arizona Constitution and A.R.S. § 12–120.24.
II. DISCUSSION
¶6 Under Arizona’s common law, insurance agents owe a duty
of reasonable care when obtaining insurance on behalf of their clients. Webb
v. Gittlen, 217 Ariz. 363, 367 ¶ 18, 174 P.3d 275, 279 (2008); Darner Motor
Sales, 140 Ariz. at 397, 682 P.2d at 402. That duty is founded on an agent’s
status as one with “special knowledge,” who “undertakes to act as an
advisor” to a client. Darner Motor Sales, 140 Ariz. at 398, 682 P.2d at 402; see
also Restatement (Third) of Agency § 8.08 (“If an agent claims to possess
special skills or knowledge, the agent has a duty to the principal to act with
the care, competence, and diligence normally exercised by agents with such
skills or knowledge.”).
¶7 Manobianco argues that the legislature modified insurance
agents’ common law duties to their clients by enacting § 20–259.01, which
creates a “safe harbor” if the insured signs a DOI-approved form rejecting
UM or UIM coverage:
Every insurer writing automobile liability or motor vehicle
liability policies shall . . . make available to the named insured
thereunder and shall by written notice offer the insured and
at the request of the insured shall include within the policy
underinsured motorist coverage which extends to and covers
all persons insured under the policy, in limits not less than the
liability limits for bodily injury or death contained within the
policy. The selection of limits or rejection of coverage by a
named insured or applicant on a form approved by the [DOI]
director shall be valid for all insureds under the policy.
Id. § 20–259.01(B) (UIM); see also id. § 20–259.01(A) (UM). We must decide
whether this statute, which speaks in terms of the “insurer,” also covers
insurance agents and whether it bars common law negligence claims for an
agent’s failure to procure requested insurance coverage.
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WILKS v. MANOBIANCO
Opinion of the Court
¶8 We interpret statutes and review summary judgment rulings
de novo. Ballesteros, 226 Ariz. at 347 ¶ 7, 248 P.3d at 195. “When
interpreting a statute, our primary goal is to give effect to the legislature’s
intent.” J.D. v. Hegyi, 236 Ariz. 39, 40 ¶ 6, 335 P.3d 1118, 1119 (2014). We
derive that intent by examining the statute’s language; if the language is
ambiguous, we look to the statute’s history, context, consequences, and
purpose. Glazer v. State, 237 Ariz. 160, 163 ¶ 12, 347 P.3d 1141, 1144 (2015).
“Absent a clear manifestation of legislative intent to displace a common-
law cause of action, ‘we interpret statutes with every intendment in favor
of consistency with the common law.’” Orca Commc’ns Unlimited, LLC v.
Noder, 236 Ariz. 180, 182 ¶ 10, 337 P.3d 545, 547 (2014) (quoting Pleak v.
Entrada Prop. Owners’ Ass’n, 207 Ariz. 418, 422 ¶ 12, 87 P.3d 831, 835 (2004)).
¶9 The statute at issue provides insurance companies with a
method for proving that they offered UM and UIM coverage to their
insureds. Ballesteros, 226 Ariz. at 350 ¶ 20, 248 P.3d at 198. It does not
purport to bar common law professional negligence claims such as the
claim asserted here. See A.R.S. § 20–259.01. Indeed, the statute does not so
much as mention insurance agents or any common law cause of action.
Generally, when “the legislature seeks to preempt a cause of action[,]” we
have required “the law’s text or at least the legislative record [to] say so
explicitly.” Orca Commc’ns, 236 Ariz. at 182 ¶ 10, 337 P.3d at 547 (quoting
Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 273, 872 P.2d 668, 677 (1994)). Section
20–259.01 therefore does not, by its terms, bar the Wilkses’ common law
negligence claim against their insurance agent.
¶10 Manobianco argues, however, that the statute implicitly bars
such negligence claims because the statute’s mandate that “rejection of
coverage . . . shall be valid for all insureds” precludes any action involving
a fact-based inquiry related to a plaintiff’s UIM coverage. But the statute is
not that broad. The “shall be valid” language in A.R.S. § 20–259.01(B)
guarantees that “if an insurer provides and the insured signs a DOI-
approved UM/UIM selection form, the insurer has satisfied the statutory
requirement to ‘make available’ and ‘by written notice offer’ UM/UIM
coverage.” Ballesteros, 226 Ariz. at 350 ¶ 21, 248 P.3d at 198. Thus
completing the DOI-approved form eliminates fact questions concerning
“whether UM/UIM coverage was sufficiently offered” by the insurer and
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WILKS v. MANOBIANCO
Opinion of the Court
“whether the terms of the offer were understood.” Id. at 350 ¶ 22, 248 P.3d
at 198. It therefore only bars inquiries related to the insurer’s offer of UM
and UIM coverage. Id. (“[T]he legislature [intended] to protect insurers
from after-the-fact inquiries regarding the offer of coverage.” (emphasis
added)). Factual inquiries related to other types of alleged negligence or
wrongdoing are neither expressly nor implicitly barred; they are simply not
addressed. Because Wilks concedes that she was offered UIM coverage on
a DOI-approved form, which she signed, her claim that Manobianco failed
to procure the UIM coverage she requested does not frustrate the purpose
of § 20–259.01(B).
¶11 We recognize that the distinction between the facts
surrounding an insurer’s offer of UM and UIM coverage and those
surrounding a client’s request for such coverage is slight, but that
distinction is important given the language and purpose of § 20–259.01. The
statute imposes a duty on insurers to make an offer of UM and UIM
coverage, but it does not discuss or affect whether an agent must honor a
client’s request for such coverage. See A.R.S. § 20–259.01. An agent’s
common law duty to its clients to procure requested UIM coverage
therefore remains distinct from the duties prescribed by § 20–259.01.
Whether Manobianco failed to honor the Wilkses’ alleged request for UIM
coverage, and whether that failure breached Manobianco’s common law
duty of care, are questions for the trier of fact. See Gipson v. Kasey, 214 Ariz.
141, 143 ¶ 10, 150 P.3d 228, 230 (2007).
¶12 Although the statute speaks only in terms of protecting
“insurers”—that is, those who write automobile insurance policies—
Manobianco maintains that the statute also applies to insurance agents
because the term “insurer” necessarily includes insurance companies and
their agents. But a plain reading of the statute, which expressly imposes a
duty upon “[e]very insurer writing automobile liability or motor vehicle
liability policies,” A.R.S. § 20–259.01(B), does not support Manobianco’s
assertion, see Wilks, 235 Ariz. at 249–50 ¶¶ 14–16, 330 P.3d at 1106–07; Nat’l
Sec., Inc. v. Johnson, 14 Ariz. App. 31, 33, 480 P.2d 368, 370 (1971) (under
A.R.S. §§ 20–103 to –104, a party that does not make, or is not a party to,
contracts of insurance is not an insurer).
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WILKS v. MANOBIANCO
Opinion of the Court
¶13 We have previously declined requests to expand the plain
terms of A.R.S. § 20–259.01. See, e.g., Newman v. Cornerstone Nat’l Ins. Co.,
237 Ariz. 35, 37 ¶ 11, 344 P.3d 337, 339 (2015); Ballesteros, 226 Ariz. at 350
¶ 22, 248 P.3d at 198. We likewise decline to hold that § 20–259.01 implicitly
covers insurance agents when doing so would add a term to the statute that
the legislature did not include. The legislature has explicitly included
insurance agents within a statute’s scope when it has intended such
coverage to exist, and it knows how to address insurance agents’ common
law duties when it wishes to do so. Compare 1997 Ariz. Sess. Laws, ch. 125,
§ 1 (1st Reg. Sess.) (providing insurance agents with a specific form that, if
signed by a client, would absolve them of any duty “to explain the nature
and applicability of automobile liability coverage”), with 1998 Ariz. Sess.
Laws, ch. 288, § 1 (2d Reg. Sess.) (rescinding the protection for insurance
agents and readopting the current language protecting only “insurers”); cf.
A.R.S. § 20–266 (expressly imposing a duty on both insurers and insurance
agents). If the legislature wants to amend the statute to include agents, limit
their duties, or circumscribe their liability regarding UM or UIM coverage,
it must do so clearly and within constitutional bounds. See Orca Commc’ns,
236 Ariz. at 182 ¶ 10, 337 P.3d at 547.
¶14 Finally, Manobianco argues that the court of appeals’ opinion
“conflicts with this Court’s cases, which have all held the [DOI] form is
controlling.” Our cases interpreting § 20–259.01, however, did not involve
negligence actions brought by an insured against an insurance agent. See,
e.g., Newman, 237 Ariz. at 36 ¶ 3, 344 P.3d at 338; Am. Family Mut. Ins. Co. v.
Sharp, 229 Ariz. 487, 488 ¶ 2, 277 P.3d 192, 193 (2012); Ballesteros, 226 Ariz.
at 346 ¶ 3 & n.3, 248 P.3d at 194 & n.3; Tallent v. Nat’l Gen. Ins. Co., 185 Ariz.
266, 266–67, 915 P.2d 665, 665–66 (1996); Estate of Ball v. Am. Motorists Ins.
Co., 181 Ariz. 124, 125, 888 P.2d 1311, 1312 (1995).2
¶15 Because the statute does not bar the Wilkses’ negligence
claim, Mrs. Wilks’s admitted failure to read the DOI-approved form she
2 Manobianco makes several additional arguments based on the
potential vicarious liability of State Farm. Because State Farm is no longer
a party to this case, Wilks, 235 Ariz. at 247 ¶ 5 n.2, 330 P.3d at 1004 n.2, we
decline to address those arguments.
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WILKS v. MANOBIANCO
Opinion of the Court
signed—despite its bold print “WARNING” and directive to “read
carefully before signing”—may be submitted to the jury to consider during
its assessment of comparative negligence. See Darner Motor Sales, 140 Ariz.
at 398, 682 P.2d at 403 (“We believe that the ‘contributory negligence’
question here turns on the reasonableness of an insured’s failure to read the
policy and his reliance on statements made by the agent. It is, therefore, a
question for the trier of fact.” (citing Ariz. Const. art. 18, § 5)); see also A.R.S.
§ 12–2505(A) (providing that “[t]he defense of contributory negligence . . .
shall at all times be left to the jury”). A jury may also weigh the fact that
Manobianco complied with the requirements of A.R.S. § 20–259.01 as
evidence that he acted reasonably under the circumstances. Cf. Restatement
(Second) of Torts § 288C cmt. a (permitting compliance with an applicable
statute to show conduct “sufficient for the occasion; but if for any reason a
reasonable [person] would take additional precautions, the provision does
not preclude a finding that the actor should do so”); accord Peterson v. Salt
River Project Agric. Improvement & Power Dist., 96 Ariz. 1, 7, 391 P.2d 567, 571
(1964); S. Pac. R.R. Co. v. Mitchell, 80 Ariz. 50, 61–62, 292 P.2d 827, 834–35
(1956).
¶16 The Wilkses’ negligence claim is based on a duty distinct from
that imposed by A.R.S. § 20–259.01. Whether Manobianco breached its
common law duty by failing to procure the UIM coverage Wilks allegedly
requested and whether Wilks should be assigned comparative fault for
failing to read the related paperwork are questions for the jury. The trial
court therefore erred by granting summary judgment to Manobianco as a
matter of law.
III. CONCLUSION
¶17 For the reasons set forth, we affirm the opinion of the court of
appeals reversing the trial court’s entry of summary judgment, and remand
the case to the trial court for further proceedings.
8