CACI No. 2361. Negligent Failure to Obtain Insurance Coverage - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2020 edition)

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2361.Negligent Failure to Obtain Insurance Coverage - Essential
Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] was harmed
by [name of defendant]’s negligent failure to obtain insurance requested
by [him/her/nonbinary pronoun/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/nonbinary pronoun/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.
New September 2003
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
• “California recognizes the general rule that an agent or broker who intentionally
or negligently fails to procure insurance as requested by a client - either an
insured or an applicant for insurance - will be liable to the client in tort for the
resulting damages.” (AMCO Ins. Co. v. All Solutions Ins. Agency, LLC (2016)
244 Cal.App.4th 883, 890 [198 Cal.Rptr.3d 687].)
• “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 the accuracy of
those representations by examining the relevant policy provisions.” (Clement v.
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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
Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group)
¶¶ 2:50-2:64.2, 11:246-11:249
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar) Actions
Against Agents and Brokers, §§ 29.7-29.8
5 California Insurance Law & Practice, Ch. 61, Operating Requirements of Agents
and Brokers, § 61.04[3][a] (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.402 (Matthew
Bender)
2362-2399. Reserved for Future Use
INSURANCE LITIGATION CACI No. 2361
1395
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