California Civil Jury Instructions (CACI)

2361. Negligent Failure to Obtain Insurance Coverage - Essential Factual Elements

[Name of plaintiff] claims that [he/she/it] was harmed by [name of defendant]'s negligent failure to obtain insurance requested by [him/her/it]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] requested [name of defendant] to obtain [describe requested insurance] and [name of defendant] promised to obtain that insurance for [him/ her/it];

2. That [name of defendant] was negligent in failing to obtain the promised insurance;

3. That [name of plaintiff] was harmed; and

4. That [name of defendant]'s negligence was a substantial factor in causing [name of plaintiff]'s harm.

Directions for Use

The instructions in this series assume the plaintiff is the insured and the defendant is the insurer. The party designations may be changed if appropriate to the facts of the case.

For general tort instructions, including the definition of "substantial factor," see the Negligence series (CACI No. 400 et seq.).

Sources and Authority

"A 'failure to deliver the agreed-upon coverage' case is actionable . . . . An insurance agent has an 'obligation to use reasonable care, diligence, and judgment in procuring insurance requested by an insured.' A broker's failure to obtain the type of insurance requested by an insured may constitute actionable negligence and the proximate cause of injury." (Desai v. Farmers Insurance Exchange (1996) 47 Cal.App.4th 1110, 1119-1120 [55 Cal.Rptr.2d 276], internal citations omitted.)

"Absent some notice or warning, an insured should be able to rely on an agent's representations of coverage without independently verifying he accuracy of those representations by examining the relevant policy provisions." (Clement v. Smith (1993) 16 Cal.App.4th 39, 45 [19 Cal.Rptr.2d 676].)

"[W]hile an insurance agent who promises to procure insurance will indeed be liable for his negligent failure to do so, it does not follow that he can avoid liability for foreseeable harm caused by his silence or inaction merely because he has not expressly promised to assume responsibility." (Westrick v. State Farm Insurance (1982) 137 Cal.App.3d 685, 691 [187 Cal.Rptr. 214], internal citations omitted.)

Secondary Sources

5 California Insurance Law & Practice, Ch. 61, Operating Requirements of Agents and Brokers, § 61.04[3][a] (Matthew Bender)

2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar 2002) Actions Against Agents and Brokers, §§ 29.7-29.8, pp. 1072-1074

Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group 2002) ¶¶ 2:50-2:64.2, 11:246-11:249, pp. 2-12-2-18, 11-58-11-59

12 California Points and Authorities, Ch. 120, Insurance, § 120.402 (Matthew Bender)

(New September 2003)