Phillips Ex Rel. Phillips v. State Farm Mutual Automobile Insurance , 129 N.C. App. 111 ( 1998 )

497 S.E.2d 325 (1998)

Larry Dean PHILLIPS, by his Guardian Ad Litem, Davis A. PHILLIPS, Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Cathy Edwards, Defendants.

No. COA97-802.

Court of Appeals of North Carolina.

March 17, 1998.

Don H. Bumgardner, Gastonia, for plaintiff-appellant.

Stott, Hollowell, Palmer & Windham, L.L.P. by Martha Raymond Thompson, Gastonia, for defendants-appellees.

HORTON, Judge.

The issue presented by this appeal is whether an insurance agent negligently breaches a fiduciary duty to a policyholder who has a minimum limits automobile liability insurance policy if she does not explain to the policyholder that he would be eligible for UIM coverage if he increased his automobile liability insurance coverage above the statutory minimum limits.

An insurance agent acts as a fiduciary with respect to procuring insurance for an insured, correctly naming the insured in the policy, and correctly advising the insured about the nature and extent of his coverage. See R-Anell Homes, Inc. v. Alexander & Alexander, Inc., 62 N.C.App. 653, 659, 303 S.E.2d 573, 577 (1983), and the cases cited therein. Thus an insurance agent has a duty to procure additional insurance for a policyholder at the request of the policyholder. Johnson v. George Tenuta & Co., 13 N.C.App. 375, 381, 185 S.E.2d 732, 736 (1972). The duty does not, however, obligate the insurer or its agent to procure a policy for the insured which had not been requested. Baldwin v. Lititz Mutual Ins. Co., 99 N.C.App. 559, 561, 393 S.E.2d 306, 308 (1990).

In this case, plaintiff does not contend that he requested the agent to obtain UIM coverage for him. On the contrary, when plaintiff first obtained an automobile liability policy from defendant agent in 1988, he obtained a minimum limits policy and expressly waived UIM coverage. Thereafter, plaintiff annually renewed his policy of automobile liability coverage at the statutory minimum limits of coverage.

At all times relevant herein, a policyholder could only obtain UIM coverage when the policyholder purchased a policy of automobile liability insurance in excess of the minimum statutory requirement. N.C.Gen.Stat. § 20-279.21(b)(4) (1993) & Cum.Supp.1997); Hollar v. Hawkins, 119 N.C.App. 795, 797, 460 S.E.2d 337, 338 (1995). In this case, plaintiff had minimum liability coverage at all times in question. We hold that, under these circumstances, defendants had no duty to advise plaintiff that, if he increased his liability coverage limits, he would be eligible for UIM coverage. We note that even had plaintiff been so notified, it is entirely speculative whether he would have incurred the additional expense of increasing his liability limits above the statutory minimum limits in order to avail himself of the opportunity to purchase UIM coverage. That is especially true in light of plaintiff's earlier rejection of UIM coverage.

Defendants having breached no duty to plaintiff, the order of the trial court dismissing plaintiff's action with prejudice is

Affirmed.

ARNOLD, C.J., and EAGLES, J., concur.