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Nokielski, et al v Colton, et al v A.S. Arbury & Sons, Inc., et al (COA-UNP, 01/04/11, RB #3150)


Michigan Court of Appeals; Docket #294143; Unpublished
Judges Beckering, Talbot, and Owens; unanimous; per curiam
Official Michigan Reporter Citation:  Not applicable, Link to Opinion

Not applicable

Insurance Agents (Duty to Insured)   

In this unanimous unpublished per curiam opinion, the Court of Appeals upheld the finding of the trial court that concluded that an insurance agency did not have a duty to inform the insured that there was a “gap” in their underlying coverage which caused them to fail to maintain the required amount of underlying coverage as a condition of their umbrella policy. 

In this case, defendant John Colton was driving through a parking lot when he struck and severely injured a pedestrian.  After litigation was commenced, it was determined that the Coltons had insurance coverage with USAA Insurance Company in the amount of $100,000 per person.  There was also an umbrella policy purchased through the Arbury Agency with Cincinnati Insurance in the amount of $1 million.  However, according to the terms of the umbrella policy, the Coltons were required to maintain $500,000 in underlying coverage.  Cincinnati denied coverage under the umbrella policy based upon the failure to satisfy the requirement that there be underlying coverage in the amount of $500,000. 

In a third-party claim against Arbury by the Coltons, alleging negligence arising out of their representation of the Coltons in securing the umbrella policy, the Court of Appeals held that the trial court correctly ruled that the plaintiffs had failed to produce evidence demonstrating the applicability of any exception to the general rule that insurance agents do not owe an affirmative duty to advise or counsel an insured about the adequacy or availability of coverage.  In response to the Coltons’ argument that Harts v Farmers Ins Exch, 461 Mich 1 (1999) was inapplicable because it only applied to cases involving captive insurance agents and not “independent agents,” the Court of Appeals held that there is no reason that would preclude the Harts test from applying to both types of agents.  The court stated that in Harts, the Supreme Court stated, “We hold that, except under very limited circumstances not present in this case, an insurance agent owes no such duty to the insured.”

The court further pointed out that based upon the Coltons’ testimony, the Arbury Agency made no misrepresentation; there were no ambiguous requests of Arbury from the Coltons; Arbury did not give the Coltons any inaccurate advice; and, Arbury did not make any express agreement or promise to the Coltons.  Further, there could not have been any detrimental reliance on the part of the Coltons, because they claim they did not even know about the umbrella policy until after the accident.  The court stated that without this requisite “special relationship” Arbury owed the Coltons no duty and, therefore, there was no negligence.  Summary disposition was affirmed.

Lansing car accident lawyer Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit

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