              IN THE SUPREME COURT OF IOWA
                             No. 08–1635

                        Filed February 4, 2011


TIMOTHY L. MERRIAM, An Individual; JUSTINE MERRIAM, Both
Individually and as Next Friend of CHRISTOPHER MERRIAM, A Minor,
KAYLA MERRIAM, A Minor, and COLLIN MERRIAM, A Minor,

      Appellants,

vs.

FARM BUREAU INSURANCE, A Corporation and/or FARM BUREAU
INSURANCE  SERVICES,     A  Corporation; and  STEVEN  C.
STONEHOCKER, An Individual,

      Appellees.



      Appeal from the Iowa District Court for Polk County, Scott D.

Rosenberg, Judge.



      Plaintiffs appeal dismissal of their negligence claim against an

insurance agent and the insurance companies represented by the agent.

AFFIRMED.



      Marc A. Humphrey, Urbandale, and Alan O. Olson, Des Moines, for

appellants.



      Brian L. Campbell of Whitfield & Eddy, PLC, Des Moines, for

appellees.
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CADY, Chief Justice.

       The   plaintiffs,   Timothy    L.       Merriam   and    Justine    Merriam,

individually and as next best friends to minors Christopher Merriam,

Kayla Merriam, and Collin Merriam, brought this action against Steven

Stonehocker, their insurance agent, alleging Stonehocker breached his

duty of care to act as a reasonably prudent insurance agent when he

failed to advise and recommend that Timothy Merriam, a self-employed

over-the-road     truck     driver,   procure        self-employment       workers’

compensation insurance. In addition, the plaintiffs contend defendants

Farm    Bureau     Insurance    and    Farm        Bureau      Insurance   Services

(collectively Farm Bureau) are vicariously liable for the actions of

Stonehocker, an independent contractor with Farm Bureau. The district

court granted the defendants’ motion for summary judgment, holding the

evidence established Stonehocker used reasonable care, diligence, and

judgment in procuring the insurance requested by the Merriams and

that, as a matter of law, there was no genuine issue of material fact for

trial. On appeal, we affirm the decision of the district court.

       I. Background Facts and Proceedings.

       The following facts are undisputed.           In 1998 or 1999, Timothy

Merriam became an independent over-the-road truck driver for Landstar

Ranger. As an owner operator, he was self-employed. Prior to that time,

Merriam had always driven a truck as an employee, and any workers’

compensation insurance coverage was handled by his employer.

       In August 2004, Steven Stonehocker began selling Farm Bureau

insurance products as an independent contractor. Upon obtaining this

position, Stonehocker was assigned the Merriams as clients, and it was

his responsibility to service the account. At the time he was assigned the

account, Farm Bureau insured the Merriams’ primary residence.
                                    3

      In early 2005, Justine Merriam contacted Stonehocker about

insuring a second residence the Merriams were purchasing for Timothy’s

mother. The Merriams and Stonehocker had never before met. In March

2005, Stonehocker met with the Merriams at their residence to discuss

their request for additional coverage.     During this initial meeting,

Stonehocker suggested the Merriams consider insuring their personal

vehicles with Farm Bureau.      Their personal vehicles were currently

insured through a different insurance company. Stonehocker explained

Farm Bureau had a package policy that might be able to provide a better

rate and offered to obtain a quote.     At the same time, the Merriams

inquired about obtaining additional coverage on several other items. The

Merriams indicated they were interested in obtaining insurance on their

horses, and Stonehocker agreed to obtain a quote for them. They also

asked Stonehocker whether their current homeowner’s policy covered

Timothy’s guns. When he informed them that it did not, they requested

Stonehocker obtain a quote on insuring the guns.         The Merriams also

asked Stonehocker to add their new garage and chicken coop onto their

homeowner’s insurance policy.      Finally, the Merriams inquired into

obtaining a life insurance policy on Timothy’s mother.

      During this meeting, Stonehocker was aware that Merriam was a

self-employed over-the-road truck driver.        Justine also informed

Stonehocker that Timothy “had a million dollar policy which applied if he

was killed in his truck.” There was, however, no discussion of workers’

compensation coverage or of any insurance coverage for Timothy if he

was injured on the job.

      Only a few weeks later, on March 29, 2005, Timothy was at his

home in Boone, Iowa. While on duty for work, he severely injured his

arm when, during the process of patching the driveway where he parked
                                    4

his work truck, the dump truck he was operating malfunctioned and

crushed his left arm.

      Timothy did not have workers’ compensation coverage through

Landstar Ranger.    The Merriams allege Stonehocker was negligent in

failing to advise them that, as a self-employed over-the-road truck driver,

Timothy had no workers’ compensation insurance unless he purchased

the additional coverage himself.    They claimed Stonehocker was in a

position of superior knowledge pertaining to available insurance products

and was negligent for failing to initiate a conversation with them

regarding this issue. The Merriams allege Farm Bureau was vicariously

liable for Stonehocker’s inaction because he works as its agent.

      II. Scope of Review.

      Rulings on motions for summary judgment are reviewed for the

correction of errors at law.   Langwith v. Am. Nat’l Gen. Ins. Co., 793

N.W.2d 215, 218 (Iowa 2010). “ ‘To obtain a grant of summary judgment

on some issue in an action, the moving party must affirmatively establish

the existence of undisputed facts entitling that party to a particular

result under controlling law.’ ” Baker v. City of Iowa City, 750 N.W.2d

93, 97 (Iowa 2008) (quoting Interstate Power Co. v. Ins. Co. of N. Am., 603

N.W.2d 751, 756 (Iowa 1999)); see also Iowa R. Civ. P. 1.981(3)

(authorizing summary judgment when “there is no genuine issue as to

any material fact,” and “the moving party is entitled to a judgment as a

matter of law”).   In reviewing a district court’s determination that the

defendants met their burden under this standard, “we view the evidence

in a light most favorable to the nonmoving party.” Langwith, 793 N.W.2d

at 218.
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      III. Prior Precedent.

      The primary issue in this case is whether Stonehocker had an

affirmative duty to inquire or advise the Merriams on Timothy’s need for

self-employed workers’ compensation insurance coverage.         We recently

discussed the scope of the duty owed by an insurance agent to his client

in Langwith. In Langwith, we noted the import of our decisions in two

earlier cases

      was to limit an insurance agent’s obligation to procurement
      of the coverage requested by the client, relieving the agent of
      any duty to advise his client of the kinds and amounts of
      insurance that would protect his client’s insurable interests
      unless there was evidence of an expanded agency agreement.

Langwith, 793 N.W.2d at 221; see also Sandbulte v. Farm Bureau Mut.

Ins. Co., 343 N.W.2d 457 (Iowa 1984); Collegiate Mfg. Co. v. McDowell’s

Agency, Inc., 200 N.W.2d 854 (Iowa 1972).        We further noted that in

Sandbulte we narrowly circumscribed the circumstances under which an

expanded agency agreement could arise to those situations when “ ‘the

[insurance] agent holds himself out as an insurance specialist,

consultant or counselor and is receiving compensation for consultation

and advice apart from premiums paid by the insured [principal].’ ”

Langwith, 793N.W.2d at 219 (quoting Sandbulte, 343 N.W.2d at 464).

      Upon further reflection, however, we concluded “the general

principles governing agency relationships [require] a more flexible

method of determining [whether] the undertaking of an insurance agent

is appropriate.” Id. We noted that, under these principles, “ ‘[a]n agent

has a duty to act in accordance with the express and implied terms of

any   contract   between   the   agent   and   principal.’ ”   Id.   (quoting

Restatement (Third) of Agency § 8.07, at 334 (2006)). We further held

that “it is for the fact finder to determine, based on a consideration of all
                                     6

the circumstances, the agreement of the parties with respect to the

service to be rendered by the insurance agent.” Id. (citing Fowler v. Berry

Seed Co., 248 Iowa 1158, 1165, 84 N.W.2d 412, 416 (1957)).

      Some of the circumstances that may be considered by the
      fact finder in determining the undertaking of the insurance
      agent include the nature and content of the discussions
      between the agent and the client; the prior dealings of the
      parties, if any; the knowledge and sophistication of the
      client; whether the agent holds himself out as an insurance
      specialist, consultant, or counselor; and whether the agent
      receives compensation for additional or specialized services.

Id. (citing Fitzpatrick v. Hayes, 67 Cal Rptr. 2d 445, 452 (Ct. App. 1997)).

Finally, we held that “[t]he client bears the burden of proving an

agreement to render services beyond the general duty to obtain the

coverage requested.” Id.

      IV. Application of Summary Judgment Standard.

      Viewing the record in the light most favorable to the plaintiffs, we

now consider whether there are facts that would support a finding of an

agreement between the parties, interpreted in light of the circumstances

under which it was made, that obligated Stonehocker to inquire and

advise the Merriams on Timothy’s need for self-employed workers’

compensation insurance protection.

      A review of the summary judgment record shows that, at the time

immediately prior to Timothy’s accident, the relationship between

Stonehocker and the Merriams had been one of short duration.

Stonehocker had started employment with Farm Bureau in August 2004.

At that time, the only business the Merriams had with Farm Bureau was

an insurance policy on their primary residence, obtained through

another Farm Bureau agent.       Their other insurance needs, including

coverage on personal vehicles, health insurance, life insurance, and

insurance on Timothy’s over-the-road truck were being serviced by other
                                           7

companies.      Although Stonehocker had been assigned to handle the

Merriams’ insurance account, he did not have any contact with the

insureds until early 2005 when Justine called him to inquire about

coverage for a second residence.

        The main focus of their initial in-person meeting in March 2005

was property insurance coverage.                The Merriams inquired about

additional coverage on a second residence, outbuildings, animals, and

guns.     In addition, they also asked about a life insurance policy for

Timothy’s mother.       In addressing these needs, Stonehocker testified in

his deposition that he inquired whether the Merriams would be

interested in getting a quote on their personal vehicles to take advantage

of a potentially better rate through Farm Bureau’s packaging of

residential and vehicle insurance products.             The Merriams consented,

and Stonehocker was subsequently able to procure additional coverage

for the Merriams on the second residence, many of their personal

vehicles, garage addition, animals, and outbuildings. 1

        In his deposition, Stonehocker acknowledged that he knew

Timothy was a self-employed truck driver. He testified this information

was essential in order to provide an accurate quote.                     Specifically,
Stonehocker testified:

        When you’re rating vehicles, you have to find out what the
        occupation is, because different ratings apply to where [the
        insureds] work and how far it takes to get there. And so
        that’s as far as the conversation ever went. He told me he
        was a truck driver, and I knew he didn’t commute with these


        1Stonehocker   was not asked to obtain a quote on the dump truck involved in the
accident that severely injured Timothy, and the truck was not covered under any
insurance policy. Due to health issues, Farm Bureau was unable to provide life
insurance coverage for Timothy’s mother. It is unclear from the record whether the
plaintiffs obtained insurance coverage for their guns. They were, however, able to
obtain liability coverage on the horses.
                                      8
         specific vehicles.   That was the only information I was
         asking.

Stonehocker was also advised by Justine that Timothy had coverage of a
million dollars if he were killed in his truck.

         The Merriams maintain Stonehocker’s awareness of Timothy’s self-

employment status and his life insurance policy, combined with the

insurance agent’s unsolicited recommendation for other insurance

coverage, supports a conclusion that Stonehocker, a licensed agent with

more knowledge than the plaintiffs, was holding himself out as an

insurance specialist, thus enlarging his duty to make recommendations

to the Merriams regarding workers’ compensation coverage. We do not

agree.
         The Merriams made no specific inquiry with respect to self-
employed workers’ compensation insurance and did not expressly or
impliedly seek Stonehocker’s assistance in assessing any of their
insurance needs other than those specifically requested. To the extent
Stonehocker made suggestions regarding personal vehicle coverage, the
record establishes he did so only in an effort to obtain a more favorable
rate for the property the plaintiffs sought to insure, the residences.
Moreover, there was no evidence of any long-standing relationship
between the parties that would support an implied agreement to expand
Stonehocker’s duty to include assessment of the Merriams’ other
insurance needs.        There was no evidence Stonehocker advised the
Merriams that he was an insurance specialist, and he did not offer to
consult with them on any additional insurance needs.       Finally, aside
from the typical commission, Stonehocker never received any additional
compensation from the insurance products he sold the Merriams. See
id. at 223 (finding that, in the “absence of circumstances indicating the
insurance agent has assumed a duty beyond the procurement of the
                                            9

coverage requested by the client, the insurance agent has no obligation
to advise a client regarding additional coverage or risk management.”).
       The plaintiffs contend Stonehocker’s knowledge of Timothy’s self-
employed status and million dollar life insurance policy was sufficient to
trigger a duty of inquiry on Stonehocker’s part.                       The fact that
Stonehocker was a trained and licensed insurance agent with arguably
“superior knowledge as to what insurance products someone in
[Timothy’s] position would require to be adequately protected from injury
or loss” cannot be the basis to find an implied agreement to expand
Stonehocker’s duty.         If that were the case, then every trained and
licensed insurance agent would have a duty to provide an assessment of
all of an insureds’ insurance needs, whether requested or not.                         As
previously discussed, we have never held this to be the law in this state.
Under the principles set forth in Langwith, the plaintiffs have failed to
establish a genuine issue of material fact exists that there was an
expanded agency agreement requiring Stonehocker to advise the
plaintiffs regarding self-employment workers’ compensation insurance
for Timothy. Because Stonehocker is not liable to the plaintiffs, Farm
Bureau cannot be vicariously liable. The district court’s ruling granting
the defendants’ motion for summary judgment is affirmed. 2
       AFFIRMED.


       2In their appeal, the Merriams also assert the defendants owed them a fiduciary

duty. This issue was not ruled on by the district court, and the plaintiffs did not file a
motion to enlarge the findings of fact or conclusions of law. Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that
issues must ordinarily be both raised and decided by the district court before we will
decide them on appeal.”). Therefore, it is not preserved for our review. However, even if
properly preserved, we conclude the plaintiffs have failed to present a genuine issue of
material fact that would support an existence of a fiduciary duty. See Kurth v.
Van Horn, 380 N.W.2d 693, 695 (Iowa 1986) (“ ‘A fiduciary relation exists between two
persons when one of them is under a duty to act for or to give advice for the benefit of
another upon matters within the scope of the relation.’ ” (emphasis added) (quoting
Restatement (Second) of Torts § 874, cmt. a, at 300 (1979))).
