      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                         )
 JUNFANG HE,                             )          No. 76236-2-1
                                         )
                     Plaintiff,          )          DIVISION ONE
                                         )
              v.                         )
                                         )
 JEFFREY S. NORRIS and TERRI             )          UNPUBLISHED
 NORRIS, and the marital community       )
 composed thereof; and JOHN DOES         )          FILED: March 19, 2018
 1-5,                                    )
                                         )
                     Defendants.         )
                                         )
 JEFFREY S. NORRIS and TERRI             )
 NORRIS,                                 )
                                         )                                                         :•••)
                                                                                            rrp
                     Appellants,         )                                                     C)
                                         )                                                          -71
              v.                         )                                       .1,14
                                                                                                  W-7
                                                                                                r4171
                                         )
 FARMERS INSURANCE COMPANY               )                                               c:3
                                                                                          3F:

 OF WASHINGTON, a Washington             )                                      07
                                                                                1\3
                                                                                            rz-;
                                                                                           -c*
 corporation; AMY ELIZABETH              )
 MARCH, a Washington resident; and       )
 DAN ANDERSON, a Washington              )
 resident,                               )
                                         )
                     Respondents.        )
                                         )

      Cox, J. — Jeffrey and Terri Norris (together "Norris") appeal the trial

court's order granting summary judgment to Farmers Insurance Company of

Washington and its agents Dan Anderson and Amy Elizabeth March and
No. 76236-2-1/2

dismissing Norris's third party complaint with prejudice. Because there is neither

any showing of a duty owed by Farmers nor any genuine issue of material fact

whether a special relationship exists, summary judgment is proper. We affirm.

       The material facts are largely undisputed. Norris hit Junfang He, a

pedestrian, while driving, and He sued Norris for damages that exceeded the

liability limits of their auto insurance policy with Farmers Insurance. Farmers

offered to settle with the pedestrian for the policy limits, but He refused this offer.

       Norris then impleaded Farmers by a third party complaint, claiming

negligence. Farmers moved for summary judgment, arguing that it had no legal

duty and that no genuine issue of material fact existed regarding any claimed

special relationship that might have created a duty. The trial court agreed and

dismissed the third party complaint with prejudice.

       Norris appeals.

                                        DUTY

       Norris argues that there are genuine issues of material fact whether

Farmers owed a duty to Norris, an essential element of the negligence claim.

Specifically, they argue that a duty arises because of a special relationship

between the parties. We disagree.

      "[S]ummary judgment is appropriate where there is `no genuine issue as to

any material fact and .. . the moving party is entitled to a judgment as a matter of

law.'"1 Although the evidence is viewed in the light most favorable to the



      1 Elcon Constr., Inc. v. E. Washington Univ., 174 Wn.2d 157, 164, 273
P.3d 965(2012)(quoting CR 56(c)).

                                              2
No. 76236-2-1/3

nonmoving party, if that party is the plaintiff and it fails to make a factual showing

sufficient to establish an element essential to its case, summary judgment is

warranted.2

       Once the moving party shows there are no genuine issues of material fact,

the nonmoving party must bring forth specific facts to rebut the moving party's

contentions.3 The nonmoving party must put forth admissible evidence showing

the existence of a triable issue.4 It cannot rely on the allegations contained in its

pleadings, conclusory statements, or speculation.5 If the "nonmoving party fails

to controvert relevant facts supporting a summary judgment motion, those facts

are considered to have been established."6 Finally, loin review of an order

granting or denying a motion for summary judgment, the appellate court will

consider only the evidence and issues called to the attention of the trial court."7




      2 Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182
(1989), overruled on other grounds by 130 Wn.2d 160 (1996).

      3 Elcon   Constr., Inc., 174 Wn.2d at 169.

      "Seven    Gables Corn. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d
1(1986).

      5   Elcon Constr., Inc., 174 Wn.2d at 169; Young, 112 Wn.2d at 225.
      6 Cent. Washington    Bank v. Mendelson-Zeller, Inc., 113 Wn.2d 346, 354,
779 P.2d 697(1989).

      7 RAP   9.12.

                                             3
No. 76236-2-1/4

        "For a claim of negligence, the plaintiff must establish duty, breach,

causation, and damages."8 The "determination of whether a legal duty exists is

initially a question of law for the court."8

        Washington law is clear—an insurance company and its agents have no

duty to review or counsel an insured on the adequacy of coverage unless there is

a special relationship between the insured and the agent.1° A special

relationship exists between the agent and insured if: "(1) the agent holds himself

out as an insurance specialist and receives additional compensation for

consulting and advice, or (2) there is a long-standing relationship, some type of

interaction on the question of coverage, and the insured relied on the agent's

expertise to the insured's detriment."11 "[I]n cases where the insured never

consulted with the agent about the adequacy of coverage and the agent never

gave any advice, courts have held that no special relationship exits."12

        We review de novo a trial court's summary judgment order.13



      8 Lipscomb v. Farmers Ins. Co. of Wash., 142 Wn. App. 20, 28, 174 P.3d
1182 (2007).

        McClammy v. Cole, 158 Wn. App. 769, 773-74, 243 P.3d 932(2010)
        9
(quoting Gates v. Logan, 71 Wn. App. 673, 676, 862 P.2d 134 (1993)).

      10 McClammy, 158 Wn. App. at 774; Lipscomb, 142 Wn. App. at 28;
Shows v. Pemberton, 73 Wn. App. 107, 114-15, 868 P.2d 164 (1994); Gates, 71
Wn. App. at 678; Suter v. Virgil R. Lee & Son, Inc., 51 Wn. App. 524, 528-29, 754
P.2d 155(1988).

        11 Lipscomb, 142 Wn. App. at 28; see Gates 71 Wn. App. at 677.

        12   Id. at 28-29 (citing Gates, 71 Wn. App. at 677-78; Suter, 51 Wn. App. at
529).

        13   Elcon Constr., Inc., 174 Wn.2d at 164.

                                               4
No. 76236-2-1/5

       Norris fails to argue persuasively that Farmers owes any duty aside from

that established by a special relationship. Any other claim would be unsupported

by well-established case law in the area of insurance.

       Norris argues that there are genuine issues of material fact whether

Farmers voluntarily assumed a duty to advise them about liability limits, and then

breached that duty. In support, they cite non-insurance cases that recognize a

duty "to exercise reasonable and ordinary care."14 We refuse to consider this

argument because Norris fails to cite any authority recognizing such a duty in the

insurance context.15

       Norris relies on the declaration of their expert, J. Kay Thorne, to support

their argument that they have raised a genuine issue of material fact whether

Farmers and its Agents owed them a duty to review their coverage for gaps and

inadequate liability limits. That reliance is misplaced.

       Because the existence of a duty is a question of law, Thorne's statements

are insufficient to raise a genuine issue of material fact as to the existence of a

duty on the part of Farmers and its agents.16

       Norris also cites to the deposition testimony of Farmers management as

support for their argument, claiming that the duty was "described and embraced



       14 See, e.g., Gordon   v. Deer Park Sch. Dist., No. 414, 71 Wn.2d 119, 122,
426 P.2d 824 (1967).

       15 SeeDarkenwald v. Emp't Sec. Dep't, 183 Wn.2d 237, 248, 350 P.3d
647(2015); RAP 10.3(a)(6); King Aircraft Sales, Inc. v. Lane,68 Wn. App. 706,
717, 846 P.2d 550 (1993).

       16   Suter, 51 Wn. App. at 527.

                                             5
No. 76236-2-1/6

by Farmers, its managers, and its agents." Again, because the existence of a

duty is a question of law, the testimony of Farmers Insurance management is

insufficient to raise a genuine issue of material fact whether Farmers had a duty

to advise Norris about the liability limits of their insurance policy.17

                                 Special Relationship

       Thus, the question we decide is whether there are any genuine issues of

material fact whether a special relationship exists under the circumstances of this

insurance case. We conclude that there are no such issues.

       The claim is based on the argument that a long-standing relationship

between the parties existed, the interactions between Norris and the agents on

questions of coverage, and Norris's reliance on the agents' expertise. A careful

review of the record shows these claims have no basis in fact.

       In support of its summary judgment motion, Farmers submitted

declarations from both agents. The declarations established that neither agent

ever received compensation or consideration from Norris for consultation or

advice on issues involving coverage or policy limits. Norris never discussed

liability coverage limits with the agents. Norris did not ask the agents either to

recommend higher or lower limits with regards to their auto insurance liability or

whether excess or umbrella coverage might be available until after the accident.

Instead, Norris only communicated with the agents to add or remove vehicles

from the policy or to discuss claims.




       17   Id.

                                               6
No. 76236-2-1/7

       Farmers also submitted portions of Norris's deposition testimony where

Norris acknowledged that they never paid any money to the agents for providing

advice on insurance issues. Norris never discussed policy limits for liability

coverage with the agents or asked them about the sufficiency of the liability

policy limits. They never spoke either with them or anyone working with them

about what would be an appropriate amount of liability coverage, and the agents

never offered an opinion on that issue.

        In opposition to summary judgment, Norris submitted affidavits of their

own as well as from Thorne. They also submitted excerpts from the deposition

testimony of Farmers Insurance management. But none of their submissions

controvert the material facts supporting the summary judgment motion. That is

because the submissions fail to show that Norris discussed their policy liability

limits with the agents.18 Even Thorne admits that there was no evidence of any

interaction between Norris and the agents on the issue of auto liability limits.

Thus, Norris failed to establish any genuine issue of material fact whether they

had a special relationship with the agents.18

       Norris relies on their long term relationship with Farmers, but case law is

clear that, in order to raise a genuine issue of material fact on the existence of a

special relationship, the insured must introduce some evidence showing that

they interacted with the insurance agent regarding the adequacy of coverage.

For example, in Lipscomb v. Farmers Insurance Co. of Washington, William


       18 See   Cent. Washington Bank, 113 Wn.2d at 354.

       18 Seven   Gables Corp., 106 Wn.2d at 13.

                                             7
No. 76236-2-1/8

Lipscomb purchased a property and casualty insurance policy for his rental

property that had a $100,000 liability limit.20 Lipscomb's tenant was badly burned

when the rental property caught fire, and the damages exceeded the policy

limits.21 Lipscomb sued Farmers and the agent who sold him the policy for

negligently failing to ensure that he was adequately insured and failing to advise

him of an appropriate liability limit.22

       Lipscomb claimed that he had a special relationship with his insurance

agent because they had a long term relationship, they discussed coverage limits,

and the agent had assured him that he was adequately covered.23 He argued

that he relied on his agent's assurances that he was covered and never thought

to ask about the adequacy of that coverage.24

       This court concluded that the record failed to establish any genuine issues

of material fact about the existence of a special relationship.25 There was no

evidence that the agent received additional compensation, and Lipscomb failed

to establish that he and the agent ever discussed the adequacy of the policy

limits.26 Although the insured and the agent discussed coverage, there was no



       20142 Wn. App. 20, 22, 174 P.3d 1182(2007).

       21   Id. at 23.
       22   Id.

      23    Id.

      24    Id. at 25.

      25    Id. at 29.

      26    Id.

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No. 76236-2-1/9

special relationship as a matter of law because the insured "did not request

advice about whether he should increase his policy limits."27

       Likewise, in McClammy v. Cole, Division Three of this court held that even

though there was an actual exchange between the agent and the insured about

improvements to the insured's home and the homeowner's policy limits, there

was no special relationship as a matter of law.28 After making the home

improvements, Richard and Mary Lou McClammy(McClammy) went to their

insurance agent's office to discuss an increase in their policy premiums.29 The

agent also emailed McClammy regarding premiums and factors that go into the

calculation of coverage and rates, but McClammy admitted that they never asked

the agent to increase the limits on their homeowner's policy.39

      The court concluded that there was no special relationship because there

was no evidence of any interaction about the adequacy of coverage.31

McClammy's request for information and the agent's act of providing an

estimated cost of replacement figure was not enough.32

       In their response opposing summary judgment below and in their briefing

on appeal, Norris fails to address Lipscomb, McClammy or any of the earlier



      27   Id.

      28   158 Wn. App. 769, 774-76, 243 P.3d 932(2010).

      29   Id. at 772.

      38   Id.

      31   Id. at 774.

      32   Id. at 775.

                                            9
No. 76236-2-1/10

cases establishing that, in the absence of a special relationship, an insurance

agent has no obligation to review or counsel the insured on insurance liability

limits.33 We must assume Norris has knowledge of these cases, but no means to

rebut them with anything that is material.

       Instead they rely on Shah v. Allstate Ins. Co. as support for their

argument.34 Such reliance is misplaced.

       In Shah, both the trial court and this court appear to have assumed that

there was a legally recognized duty.35 In any event, neither the trial court nor this

court identified any authority for that proposition. Thus, we conclude that case is

of little or no value in considering the question now before us.

       In any event, the insurance agent in Shah specifically told Ratilal and

Lalita Shah (Shah)that their insurance premiums were for replacement cost

coverage of their property.36 Because Shah specifically asked about the

adequacy of coverage, there were genuine issues of material fact whether the

agent was negligent in failing to advise Shah that they had inadequate

coverage.37 Also, because the agent provided Shah with erroneous advice, there

was a genuine issue of material fact whether the agent's failure to verify his




       33 See, e.g., Shows, 73 Wn. App. at 114-15; Gates, 71 Wn. App. at 677-
78; Suter, 51 Wn. App. at 528-29.

       34   130 Wn. App. 74, 121 P.3d 1204 (2005).

       36 130 Wn. App. at 81-83.

       36   Id. at 79.

       37   Id. at 83-85.

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No. 76236-2-1/11

calculations for the necessary amount of replacement cost coverage caused

Shah to underinsure.38 The record here is unlike that case.

       Likewise, Norris misplaces reliance on Peterson v. Big Bend Insurance

Agency, Inc.39 In that case, Roger and Larae Peterson (Peterson) expressly

stated that they wanted to insure their home for its full replacement value, and

the insurance agent agreed to calculate the replacement cost value.40 The agent

incorrectly advised Peterson on how replacement value would be calculated.41 In

concluding that there was a genuine question of material fact whether a duty

existed, the court distinguished cases that "did not involve a specific promise by

an agent as part of the agency relationship."42

       Here, there is no evidence that Norris asked the agents about the

adequacy of their insurance. So Norris's reliance on the holdings in Shah and

Peterson is misplaced. Because Norris never consulted with the agent about the

adequacy of coverage and the agent never gave any advice, Norris failed to

establish a genuine issue of material fact whether they had a special relationship

with the agents.43




      38   Id. at 82.

      39   150 Wn. App. 504, 202 P.3d 372(2009).
      40 Peterson, 150 Wn. App. at 510.

      41   Id. at 514.

      42   Id. at 517.

      43   McClammy, 158 Wn. App. at 774 (quoting Lipscomb, 142 Wn. App. at
28-29).

                                           11
No. 76236-2-1/12

                      FAILURE TO TRAIN AND SUPERVISE

       Norris argues that there are genuine issues of material fact whether

Farmers failed to train, supervise, and monitor its agents and whether it failed to

take reasonable steps to enforce compliance with the standards that Farmers

expects from its agents. We disagree.

       Norris concedes that Famers agents are independent contractors. They

fail to cite to any authority imposing an obligation on an insurance company to

train or supervise an independent contractor. Accordingly, we reject this

argument without further discussion."

      We affirm the trial Court's order granting summary judgment.




WE CONCUR:


         c/tc




      44 See    Darkenwald, 183 Wn.2d at 248.

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