California Civil Jury Instructions (CACI) (2017)

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

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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
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.
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
• “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. 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
2362–2399. Reserved for Future Use