September 27, 2015
Do Brokers, Agents Owe Fiduciary Duty?
by Marc Zimet
Courts are not inclined to find a fiduciary duty, but brokers and agents must be careful to avoid assuming that level of responsibility.
Insurers, insureds and even their attorneys frequently incorrectly assume that insurance agents and brokers owe fiduciary duties to their insureds. While the law is not completely clear regarding the applicability of agency principles and fiduciary duties in this area, legal precedent can offer some guidance on the issue.
Currently, there is no appellate precedent permitting an insured to sue its agent or broker under a common law action for breach of fiduciary duty. However, the California courts have yet to be willing to rule that the cause of action based on common law agency principles is completely inapplicable to brokers and agents.
Demonstrative of the court’s unwillingness to create a bright-line rule is the heavily litigated case of Workmen’s Auto Insurance Company v. Guy Carpenter & Co., Inc. In 2011, the court of appeal in Workmen’s answered the question regarding fiduciary duties of brokers and agents definitively in the negative, ruling that “an insurance broker cannot be sued for breach of fiduciary duty.” The ruling finally provided the guidance and rule necessary to put the issue to rest. However, the relief was short-lived; in 2012, after a rehearing that affirmed the court’s ruling, the opinion was vacated and depublished, again leaving the law in this area without any clear precedent to follow. After rehearing, the court deleted the quotation stating the new rule from its summary of opinion, instead stating “these authorities do not close the door on fiduciary duty claims against insurance brokers.”
Prior to Workmen’s, several cases made steps toward supporting the idea that no fiduciary duty is owed. In Kotlar v. Hartford Fire Insurance Company, the court held an insurance broker need only use reasonable care to represent its client, and declined to apply a higher standard such as that applied to an attorney. The court found that the broker’s duties are defined by negligence law, not fiduciary law. In Hydro-Mill Company, Inc. v. Hayward, Tilton & Rolapp Insurance Associates, Inc. the court expanded on Kotlar, finding that the standard of professional negligence applied, but refused to recognize a separate cause of action for breach of fiduciary duty against the insurance broker.
The California Supreme Court previously held in Vu v. Prudential Property & Casualty Insurance Company that the insurer-insured relationship “is not a true ‘fiduciary relationship’ in the same sense as the relationship between trustee and beneficiary, or attorney and client.” The court went on to state that any special or additional duties applicable to the broker or agent were only the result of the unique nature of the insurance contract, and “not because the insurer is a fiduciary.” The court in Hydro-Mill applied the concept in Vu, finding that if an insurer does not owe fiduciary duties, then a broker and agent could not.
In Jones v. Grewe, an insured sued its broker for misrepresenting coverage, negligence and breach of fiduciary duty. The court declined to recognize the cause of action for breach of fiduciary duty, holding that the broker had only the obligation to use reasonable care and no fiduciary duty absent an express agreement or a holding out otherwise.
Despite the fact that it appears from these precedents that the courts are unwilling to find a fiduciary duty exists, the California Supreme Court in Liodas v. Sahadi ruled that the existence of a fiduciary relationship could not be ruled upon, as the issue is not one of law, but of fact. This rule appears to be restated in the Workmen’s unpublished opinion.
While it is clear the courts are hesitant to find a fiduciary duty is owed by agents and brokers to their insured, the fact remains that it is still a possibility and, under the right circumstances and facts, could be found. Thus, it is important that agents and brokers not only use reasonable care when procuring insurance, but that they do not hold themselves out as being a fiduciary, or expressly agree to the existence of a fiduciary relationship. So long as agents and brokers do not create circumstances in which a fiduciary relationship is agreed to or implied, the law will infer no such relationship exists.