                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                    June 3, 2010 Session

              KRISTEN COX MORRISON v. PAUL ALLEN ET AL.

           Appeal by Permission from the Court of Appeals, Middle Section
                        Chancery Court for Davidson County
                  No. 05-1489-1    Claudia Bonnyman, Chancellor


                No. M2007-01244-SC-R11-CV - Filed February 16, 2011


After the death of her husband, the plaintiff filed suit against their agents/financial planners
based upon several theories of recovery in regard to the termination of a life insurance policy
from one company and the acquisition of a replacement policy from a second company.
After initially contesting the award of benefits, the second company, which was also named
as a defendant in the suit, settled with the plaintiff. At the conclusion of the bench trial as
to the liability of the agents, the plaintiff was awarded substantial damages as to each policy
based upon various theories of recovery: the agents’ failure to procure a life insurance policy
as directed, negligence, negligent misrepresentation, breach of fiduciary duty, and violation
of the Tennessee Consumer Protection Act. The Court of Appeals affirmed in part, but held
that the damages in contract relating to the failure to procure should be offset by the amount
of the plaintiff’s pre-trial settlement with the second insurance company. Because of the
nature of the issues presented, this Court granted permission to appeal. As to the policy for
which benefits were denied by the second company, we hold that (1) a cause of action may
arise for the failure of the agents to procure a policy not subject to contest; (2) the claim for
failure to procure may be actionable, notwithstanding the policy holders’ admission that they
did not read the insurance application; and (3) because the settlement by the second life
insurance company was not specifically resolved based upon contract, the agents are not
entitled to a credit against damages caused by their failure to procure. As to the policy
terminated by the plaintiff, we hold that the evidence preponderates against any award of
damages based upon negligence, negligent misrepresentation, breach of fiduciary duty, or
violations of the Tennessee Consumer Protection Act. Finally, we hold that the ad damnum
clause in the complaint provided the agents with sufficient notice to support a damage award
in the amount of $1,000,000 plus pre-judgment interest. The judgment of the Court of
Appeals is affirmed in part and reversed in part, and the cause is remanded to the trial court
for determination of post-judgment interest.


                                               1
     Tenn. R. App. P. 11; Judgment of the Court of Appeals is Affirmed in Part,
                          Reversed in Part, and Remanded

G ARY R. W ADE, J., delivered the opinion of the Court, in which J ANICE M. H OLDER and
S HARON G. L EE, JJ., joined. C ORNELIA A. C LARK, C.J. and W ILLIAM C. K OCH, J R., J., filed
separate opinions concurring in part and dissenting in part.

William Ray Hannah, John Gerald Jackson, Richard W. Bethea, David A. Love, and William
M. Barker, Chattanooga, Tennessee, and Peter Harwood Curry, Nashville, Tennessee, for the
appellants, Paul Allen, Jody Roberts, and Wiley Bros.-Aintree Capital, LLC.

Donald N. Capparella, Amy J. Farrar, and Candi Renee Henry, Nashville, Tennessee, for the
appellee, Kristen Cox Morrison.

                                            OPINION
                             Facts and Procedural Background
        Kristen Scott Morrison (the “Plaintiff”), the widow of Howard Morrison
(“Morrison”), filed suit against the defendants Paul Allen (“Allen”), Jody Roberts
(“Roberts”), and Wiley Brothers-Aintree Capital, LLC (“Wiley Brothers”), a Nashville
financial planning firm (referred to collectively as the “Defendants”), alleging various
theories of recovery in regard to two life insurance policies issued to Morrison prior to his
death. American General Life Insurance Company (“American General”) was also named
as a defendant but settled the Plaintiffs’ claims prior to trial. The case against the Defendants
proceeded to trial without a jury.

       The proof established that in 2000, Morrison obtained a $300,000 term life insurance
policy with First Colony, naming the Plaintiff as the beneficiary. This policy contained an
“incontestability clause,” meaning that after two years the insurance company could not deny
coverage because of misrepresentations made in the application or any other failure to
comply with conditions in the insurance contract.1 Shortly after the second anniversary of
the First Colony policy, Morrison was convicted of driving while impaired (“DWI”), which
resulted in restrictions on his license to operate a vehicle.

       In late 2002 or early 2003, Morrison began to play golf regularly with Roberts at the
Richland Country Club. Eventually, the Morrisons joined the club and developed a
friendship with Roberts and Allen, who worked together at Wiley Brothers as certified


       1
           See Searcy v. Fid. Bankers Life Ins. Co., 656 S.W.2d 39, 40 (Tenn. Ct. App. 1983) (stating
that an incontestability clause “preclud[es] the raising of the defense that an insurance policy is
invalid”).

                                                  2
financial planners. On January 29, 2004, Morrison met with Allen and Roberts seeking
counseling on his family’s finances. He expressed particular concern that his $300,000 First
Colony policy was inadequate. As a part of their professional services, Allen and Roberts
agreed to arrange alternatives to the existing policy and to otherwise offer financial planning
advice to the Morrisons. On February 10, less than two weeks later, Roberts met with the
Morrisons a second time and recommended $1,000,000 in life insurance coverage for
Morrison and a $250,000 life insurance policy for the Plaintiff, who had no life insurance at
that time. Based upon the information Morrison had provided at the January 29 meeting,
Roberts had acquired quotes from various life insurance companies, including American
General. The proposed premium for the $1,000,000 and $250,000 “Renewable Level Benefit
Term” policies with American General was less than the premium for the $300,000 term
policy with First Colony. While Allen and Roberts advised the Morrisons to maintain the
First Colony coverage until they had acquired the American General policy, their
recommendation was not based on the incontestability clause in the First Colony policy.

        Allen, who undertook the responsibility for preparing the insurance applications based
on the information received by Roberts at the initial meeting with the Morrisons, telephoned
the Plaintiff, asking for additional data. According to the Plaintiff, Allen asked only for her
driver’s license number and her son’s Social Security number. She specifically recalled that
Allen did not ask any questions pertaining to her driving record, her tobacco use, or her
medical records and further testified that neither Allen nor Roberts directly contacted
Morrison after the second meeting. At some point between February 11 and February 27,
shortly after the telephone conversation between the Plaintiff and Allen, Allen and Roberts
mailed several documents to the Morrisons, including the two completed life insurance
applications. The Plaintiff testified that no instructional cover letter accompanied the
applications, although Allen, while having no recollection of any cover letter to the
Morrisons, claimed that it was his typical practice to provide one. “Sticky notes” attached
to the paperwork directed the Morrisons to “sign here.” The Plaintiff explained that
“[e]verything was just filled out . . . . [s]o it was obvious that Jody and Paul had done
everything for us and all we needed to do was sign.” On February 27, 2004, the Morrisons
signed as directed. The Plaintiff acknowledged at trial that neither she nor her husband read
the content of the applications. While Roberts claimed to have witnessed the signing of the
applications, the Plaintiff insisted that Roberts had not done so, having never been to her
residence until he delivered the completed policies sometime later.

       On page four of “Part A” of the application form for the $1,000,000 policy, Morrison
signed a lengthy series of authorizations and acknowledgments, which included the following
statement:

       I have read the above statements or they have been read to me. They are true

                                              3
       and complete to the best of my knowledge and belief. I understand that this
       application: (1) will consist of Part A, Part B, and if applicable, related forms;
       and (2) shall be the basis for any policy issues. I understand that any
       misrepresentation contained in this application and relied on by the Company
       may be used to reduce or deny a claim or void the policy if: (1) it is within its
       contestable period; and (2) such misrepresentation materially affects the
       acceptance of the risk.

      Morrison also signed several additional documents, including a “Notice Regarding
Replacement,” which provides as follows:

       Are you thinking about buying a new life insurance policy and discontinuing
       an existing one? If you are, your decision could be a good one–or a mistake.
       You will not know for sure unless you make a careful comparison of your
       existing benefits and the proposed benefits.

       Make sure you understand the facts. You should ask the company or agent
       that sold you your existing policy to give you information about it. You are
       urged not to take action to terminate, assign, or alter your existing life
       insurance coverage until you have been issued the new policy, examined it and
       have found it acceptable.

       Hear both sides before you decide. This way you can be sure you are making
       a decision that is in your best interest.

       The application included bold lettering:

       IF YOU SHOULD FAIL TO QUALIFY FOR THE LIFE INSURANCE FOR
       WHICH YOU HAVE APPLIED, YOU MAY FIND YOURSELF UNABLE
       TO PURCHASE OTHER LIFE INSURANCE OR ABLE TO PURCHASE IT
       ONLY AT SUBSTANTIALLY HIGHER RATES.

       We are required by law to notify your existing company that you may be
       replacing their policy.

Unlike the items in the lengthy list of authorizations and acknowledgments in “Part A” of the
application, the “Notice Regarding Replacement” was a separate sheet of paper with no
additional language. On page four of Part A to the form, Allen’s signature appears, attesting
the following statements: “I certify that the information supplied by the proposed
insured(s)/owner has been truthfully and accurately recorded on the Part A application.”

                                               4
       On May 7, 2004, Dywanna Hinds, a nurse, traveled to the Morrison residence to
ascertain their medical history, to conduct physical examinations, and to otherwise complete
their applications for life insurance with American General. She recorded Morrison’s
weight, height, blood pressure, and pulse rate, and also obtained blood and urine samples.
When asked by Nurse Hinds about his driving record, Morrison answered “yes” to the
following question: “In the past 5 years, have you had a moving violation or your driver’s
license restricted, suspended or revoked?”

       Ultimately, American General issued the policies, and Morrison then permitted his
First Colony policy to lapse. Two months later, Morrison was critically injured in a single-
car accident. He died on the next day. When the Plaintiff made a claim for benefits,
American General denied coverage because of an incorrect answer to Question 17E in the
application: “In the past five years, have any proposed insureds been charged with or
convicted of driving under the influence of alcohol or drugs or had any driving violations?”
“No” was the answer appearing on the form.

         Later, the Plaintiff filed this suit against American General, alleging breach of the life
insurance contract, violation of the Tennessee Consumer Protection Act (“TCPA”), Tenn.
Code Ann. §§ 47-18-101 to -130 (2001 & Supp. 2010), and general negligence. As
indicated, the Plaintiff also named Allen, Roberts, and Wiley Brothers as defendants.2 Prior
to trial, the Plaintiff settled her claim against American General for $900,000. The Plaintiff
proceeded to trial against the Defendants, asserting the following theories of recovery: (1)
a breach of contract claim for failure to procure an enforceable insurance policy; (2) tort
claims for the breach of fiduciary duty, negligence, negligent misrepresentation; and (3) a
claim under the Tennessee Consumer Protection Act for “reckless and unfair and deceptive
practices.”

        In a bench trial, the Plaintiff described her husband as scrupulously honest, contending
that if Allen and Roberts had inquired, Morrison would have answered question 17E
truthfully. She testified that Morrison, although embarrassed about his driving record, had
candidly informed both his employer and his friends of his DWI conviction. As support for
her contention that Morrison would have answered honestly if asked about his driving record,
the Plaintiff pointed to the answers that he had given in response to questions posed by Nurse
Hinds during the medical examination she conducted prior to the issuance of the American
General policy. The Plaintiff also pointed to other errors, inaccuracies, and misstatements
in the application process. For example, Allen acknowledged that he did not ask Morrison


        2
          The Plaintiff also sued the Allen and Roberts Group, a title listed on the Defendants’ business
cards; however, no such legal entity existed, and it is undisputed that Allen and Roberts were employed by
Wiley Brothers.

                                                    5
Question 15, which required the disclosure of any existing life insurance policies, but he
described his omission as simply a “mental block.” Allen answered “not applicable” to this
question, despite the fact that he was fully aware that Morrison had an existing policy with
First Colony. Further, another question in the application was whether Morrison had used
tobacco products; even though Roberts had seen Morrison smoke cigars, the answer supplied
was “No.” The Plaintiff pointed out that Morrison had responded “Yes” to a similar question
in the application he made for the First Colony policy.

        In response, Allen claimed that he had twice asked Morrison question 17E and that
he answered “no” on each occasion. He contended that the question was first asked at the
conclusion of their initial meeting on January 29. Allen asserted that he asked again in a later
telephone conversation with Morrison. While Roberts claimed to have witnessed the first
question and answer session with Morrison and was aware that Allen had later talked with
Morrison by telephone, he conceded that he did not hear Allen ask question 17E during the
second occasion.3 There was no reference to either the question or the answer to 17E in the
office file maintained at Wiley Brothers.

        At the conclusion of the proceedings, the trial court, finding that the Defendants had
collectively breached their employment contract by failing to procure an enforceable life
insurance policy, awarded the Plaintiff damages of $1,000,000, plus pre-judgment interest
for a total of $1,247,120.94. The trial court also awarded the Plaintiff damages in tort in the
amount of $300,000 for the loss of the First Colony life insurance policy based on theories
of breach of fiduciary duty, negligence, and negligent misrepresentation. Because “the
tortious actions of the defendants were willful and knowingly reckless, and deceptive, and
in violation of the Tennessee Consumer Protection Act,” the trial court doubled the award
to $600,000, see Tenn. Code Ann. § 47-18-109(a)(3) (2001), granted pre-judgment interest
in the amount of $74,135.38, and awarded attorney’s fees and costs totaling $198,285.47.
The trial court found no comparative fault on the part of the Morrisons or American General.

       Of note, the trial court made specific findings of fact as to the credibility of Allen and
the recklessness of the Defendants’ conduct:

            The Court must find that Mr. Allen is not a credible witness in regard to the


        3
          The Court of Appeals correctly noted that if Morrison had so answered, he would have technically
been correct, because he was convicted of driving while impaired – a separate offense from driving under
the influence. See Tenn. Code Ann. §§ 55-10-401 & 418(a) (2008); State v. Humphreys, 70 S.W.3d 752,
763 (Tenn. Crim. App. 2001). The trial court did not consider the distinction to be relevant or material.
Roberts claimed that when asked, Morrison answered “that he did not have a DUI (driving under the
influence) in the past.”

                                                    6
            applications and application process. The Court must find that both Mr.
            Roberts and Mr. Allen were reckless in their processing of the application
            and their attempt to purchase life insurance for Howard Morrison, and in the
            sales process and the fiduciary process in which their relationship was
            established.

                    Mr. Allen and Mr. Roberts had a duty to the Morrisons and they
            failed to fulfill their duty and fell below the standard of care for insurance
            agents and fiduciaries hired to buy a policy for their clients.

       The Court of Appeals affirmed, in part, holding that, as to the American General
policy, the evidence did not preponderate against the trial court’s finding that the Defendants
had failed to ask Morrison to answer question 17E:4

        Mr. Morrison was asked if he had a restricted driver’s license. The nurse
        correctly marked the answer as “yes.” This is a clear indication that Mr.
        Morrison was not trying to hide his conviction since the conviction is what led
        to the restricted license. Furthermore, the evidence shows that the entire
        application process was marked by an inattention to detail and casual attitude
        toward accuracy on the part of Allen and Roberts. For example, Roberts had
        seen Mr. Morrison smoke cigars, yet the brokers marked “no” on the
        application question regarding use of tobacco products. Roberts and Allen
        knew that Mr. Morrison had an insurance policy and intended to replace it with
        the new policy, but on the application they indicated that Mr. Morrison had no
        existing coverage. Allen never asked Mrs. Morrison any questions from the
        application except for a brief phone call during which he asked for her drivers
        license and social security numbers. He got the rest of her information from
        Mr. Morrison. Yet, Allen certified that he personally saw the proposed insured
        on the date of the application, asked each question and accurately recorded the
        answers.

Morrison v. Allen, No. M2007-01244-COA-R3-CV, 2009 WL 230220, at *3 (Tenn. Ct. App.
Jan. 30, 2009). The Court of Appeals, citing controlling precedent, specifically observed that

        4
          The Court of Appeals agreed with the findings of the trial court regarding Allen’s credibility and
the issue of Robert’s and Allen’s agency. Both of these determinations are questions of fact. See, e.g., State
v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (stating that issues involving witness credibility are to be
resolved by the trial judge as the trier of fact); White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 723
(Tenn. 2000) (noting that the existence of agency “is a question of fact under the circumstances of the
particular case”). The evidence does not preponderate against these findings. See Tenn. R. App. P. 13(d).


                                                      7
the failure of the Morrisons to read the insurance application did not absolve the Defendants
of liability as their agents, id. at *4, but disagreed with the trial court’s failure to permit as
a credit the settlement by American General, reducing the award by $900,000. Id. at *7. As
to the judgment of $300,000 for the loss of the First Colony policy, the Court of Appeals
ruled that the Defendants were liable for breach of fiduciary duty, negligence, and negligent
misrepresentation, id. at *8-9, and also upheld the trial court’s ruling “that the tortious actions
of the defendants were willful and knowingly reckless, and deceptive” in violation of the
TCPA, holding that doubling the $300,000 award was appropriate under the statute. Id. at
*9, *11. While denying the Plaintiff’s request for attorneys’ fees on appeal, the Court of
Appeals did not disturb the attorneys’ fees awarded at trial, but ordered a remand for a
recalculation of pre- and post-trial interest and attorneys’ fees. Id. at *11.

        This Court granted the Defendants’ application for permission to appeal in order to
address the following issues: (1) whether a cause of action may arise for failure to procure
an insurance policy not subject to contest; (2) whether the claim is actionable
notwithstanding the policy holders’ admission that they did not read their insurance
applications; (3) whether the settlement by American General was properly applied as a
credit against damages caused by the Defendants for their failure to procure; (4) whether the
evidence preponderates against any award of damages based upon negligence, negligent
misrepresentation, breach of fiduciary duty, or violations of the Tennessee Consumer
Protection Act as to the policy terminated by the Plaintiff; and (5) whether the ad damnum
clause in the complaint provided the Defendants with sufficient notice to support a damage
award in the amount of $1,000,000 and pre-judgment interest.

                                          ANALYSIS
                                     Standard of Review
        In a civil case heard without a jury, the trial court’s findings of fact are presumed to
be correct unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d);
Langschmidt v. Langschmidt, 81 S.W.3d 741, 744 (Tenn. 2002). When credibility and
weight to be given testimony are involved, considerable deference must be afforded to the
trial court when the trial judge had the opportunity to observe the witness’ demeanor and to
hear in-court testimony. Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997)
(quoting Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996)). Because trial courts
are able to observe the witnesses, assess their demeanor, and evaluate other indicators of
credibility, an assessment of credibility will not be overturned on appeal absent clear and
convincing evidence to the contrary. Wells v. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.
1999). Questions of law are subject to de novo review with no presumption of correctness.
Seals v. H & F, Inc., 301 S.W.3d 237, 241 (Tenn. 2010); Colonial Pipeline Co. v. Morgan,
263 S.W.3d 827, 836 (Tenn. 2008) (citing Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823,
826 (Tenn. 2003)).

                                                8
                                I. FAILURE TO PROCURE
                                     A. Applicable Law
        A cause of action for failure to procure insurance is separate and distinct from any
cause of action against an insurer or a proposed insurer; in a failure to procure claim, “the
agent, rather than [the] insurance company, is independently liable.” 43 Am. Jur. 2d
Insurance § 163 (2003); cf. Haeuber v. Can-Do, Inc., II, 666 F.2d 275, 280 (5th Cir. 1982)
(quoting Karam v. St. Paul Fire & Marine Ins. Co., 281 So. 2d 728, 730-31 (La. 1973) (“The
[insured] may recover from the agent the loss he sustains as a result of the agent’s failure to
procure the desired coverage if the actions of the agent warranted an assumption by the client
that he was properly insured in the amount of the desired coverage.”)). An agent or broker
is liable for failure to procure “on the theory that he or she is the agent of the insured in
negotiating for a policy, and owes a duty to the principal to exercise reasonable skill, care,
and diligence in effecting the insurance.” 43 Am. Jur. 2d Insurance § 163 (citations omitted).
While other jurisdictions and secondary authority generally recognize that a failure to procure
claim may be based on either negligence or breach of contract, see Eddy v. Republic Nat’l
Life Ins. Co., 290 N.W.2d 174, 177 (Minn. 1980); Herdendorf v. Geico Ins. Co., 909
N.Y.S.2d 277, 279 (N.Y. App. Div. 2010); Robin Cheryl Miller, Annotation, Liability of
Insurance Agent or Broker on Ground of Inadequacy of Liability-Insurance Coverage
Procured, 60 A.L.R. 5th 179-85 (1998), we limit our discussion in this case to the latter.

       Although this Court has never definitively laid out the requisite elements of a cause
of action for failure to procure, American Jurisprudence 2d lists them as follows:

       (1) an undertaking or agreement by the agent or broker to procure insurance;
       (2) the agent’s or broker’s failure to use reasonable diligence in attempting to
       place the insurance and failure to notify the client promptly of any such failure;
       and
       (3) that the agent’s or broker’s actions warranted the client’s assumption that
       he or she was properly insured.

43 Am. Jur. 2d Insurance § 163 (citation omitted). We adopt these criteria as essential to
support a claim for failure to procure insurance.

        Our courts have consistently recognized the right to recover damages based on an
agent’s wrongful failure to procure insurance as authorized or directed. Damages based upon
a theory of failure to procure have been awarded in Tennessee when no insurance was
acquired by the agent as directed. In Glisson v. Stone, 4 Tenn. App. 71 (1926), Glisson
contracted with Stone, a banker and “licensed insurance solicitor,” to obtain fire insurance
on three tobacco barns. After providing assurances that he would fill out the application
later, Stone obtained Glisson’s signature on a blank form, but failed to include one of the

                                               9
three barns on the request for coverage. Before Glisson received a copy of his insurance
policy, the barn that had not been included in the application was destroyed in a fire. Id. at
71-72. The Court of Appeals ruled that Glisson was entitled to the coverage intended, plus
interest, because he, an “amateur,” had a “lack of opportunity for examination when [the
application] was signed” and had properly “relied on [Stone] who had much more knowledge
as to the matter in hand.” Id. at 79. Similarly, in Massengale v. Hicks, 639 S.W.2d 659
(Tenn. Ct. App. 1982), the insurance agent assured Massengale on two separate occasions
that he would procure a replacement automobile insurance policy. He failed to do so, and
less than twenty-four hours after the policy expired, Massengale was involved in an
automobile accident. Id. at 660. The Court of Appeals permitted recovery from the agent
because Massengale had relied upon the agent’s promise to procure full insurance coverage.
Id. (recognizing the “universal general rule that an agent or broker of insurance who, with
a view to compensation for his services, undertakes to procure insurance for another, and
unjustifiably and through his fault or neglect, fails to do so, will be held liable for any
damage resulting therefrom”).

        Recovery under a failure to procure claim has also been extended to instances where
coverage was acquired, but was inadequate in light of the agreement between the insured and
the agent. For example, in Bell v. Wood Insurance Agency, 829 S.W.2d 153 (Tenn. Ct. App.
1992), the Court of Appeals affirmed a judgment in favor of Bell because the agent, directed
to obtain a $30,000 policy for theft, acquired coverage of only $1,000. Our intermediate
appellate court rejected a claim by the agent that the Bells’ superficial examination of the
policy barred recovery, holding that “[m]ere failure to read and understand a policy may not
be utilized to otherwise defeat a policy-holder’s claim [and] the issue in cases of this nature
is not only what the policy provides, but what the agent promised.” Id. at 154 (citations
omitted).

         Based upon the principles announced in these cases, we hold that if an agent
undertakes to obtain an insurance policy for an insured, and the policy obtained is contestable
due to the acts or omissions of the agent, then the applicant has the same right to recover for
failure to procure as he or she would have had if no policy had issued at all. For the identical
reason, if only a portion of the insurance policy is subject to forfeiture due to the acts or
omissions of the agent, then the applicant has the same right to recover for failure to procure
as he or she would have had if the coverage had been less than that sought.

       In his separate opinion, Justice Koch asserts that there must be evidence that an
insured contracted for an “immediate incontestability clause,” or that an insurance agent
represented that an insurance policy would be incontestable, in order to support a failure to
procure claim under circumstances similar to those before us. We disagree. If an insured
contracts with an agent to procure an insurance policy and reasonably relies upon the agent,

                                              -10-
based upon his or her expertise, to successfully complete the groundwork for procuring the
policy, and the policy is successfully contested by the insurance company due to the acts or
omissions of the agent, the insured has not, in fact, received the benefit of the bargain.
Insurance that is obtained but later voided because of acts or omissions by an agent is just as
worthless as no insurance or inadequate insurance.

         A cause of action for failure to procure, therefore, may arise where coverage is denied
by the insurer on a policy that is contestable as a result of the acts or omissions of the agent.
There is no distinction between an agent’s procurement of coverage that is contestable by the
insurer and an agent’s failure to procure at all. Cf. Bill Brown Constr. Co. v. Glen Falls Ins.
Co., 818 S.W.2d 1, 11-12 (Tenn. 1991) (holding that “[r]egardless of which language is
selected by the insurer, the insured has a valid right to expect coverage as promised by the
insurer’s agent,” and declining to distinguish between coverage that was never issued and
coverage that was, by its terms, inherently subject to forfeiture if the insured ever sought to
use it).

        Given the circumstances of this case, we must consider these failure to procure cases
in light of the law in Tennessee providing that a misrepresentation by an applicant for
coverage may be grounds for an insurer to later rescind the policy. Although Tennessee
Code Annotated section 56-7-103 (2008) generally favors the validity of insurance contracts,
it also states that a written or oral misrepresentation in an application for insurance may
defeat the policy if it “is made with actual intent to deceive” or “the matter represented
increases the risk of loss [to the insured].” While the truthfulness or falsity of a statement
is a question of fact, whether “the false answers materially increased the risk of loss [is] a
question of law.” Womack v. Blue Cross & Blue Shield of Tenn., 593 S.W.2d 294, 295
(Tenn. 1980). The Court of Appeals has observed that it is “a matter of common sense . . .
that persons with [driving under the influence] convictions have a higher risk of death,
especially deaths caused by automobile accidents,” and, therefore, the false answer would
be material. Smith v. Tenn. Farmers Life Reassurance Co., 210 S.W.3d 584, 591 (Tenn. Ct.
App. 2006). This suggests that the false answer to Question 17E materially increased the risk
of loss, thereby rendering the policy contestable under the statute.

        While acknowledging the distinction between a direct claim against an insurer and a
claim for failure to procure, the Defendants ask that our holding in Beasley v. Metropolitan
Life Insurance Co., 229 S.W.2d 146 (Tenn. 1950), be extended to these circumstances. In
Beasley, this Court ruled that a material misrepresentation on an insurance application signed
by the applicant may support a later denial of coverage by the insurer, even where the
applicant claims to have been unaware of the misrepresentation. Id. at 148. In addressing
a suit by the insured directly against the insurer, and not involving a claim against an agent
for failure to procure, this Court observed that contract principles placed a duty on Beasley

                                              -11-
to “learn the contents of a written contract” before signing and, in consequence, he could not
sustain a claim against the insurer. Id.

        The Court of Appeals has narrowly interpreted Beasley, limiting the holding to its
facts. For example, in Giles v. Allstate Insurance Co., 871 S.W.2d 154, 156-57 (Tenn. Ct.
App. 1993), a case involving similar circumstances and a direct claim against the insurer, our
intermediate appellate court held that the insured, who contended that the insurer’s agent had
filled out the application incorrectly and that she had signed it without reading it, was
nevertheless responsible for the material misrepresentations therein that increased the
insurer’s risk of loss. See also Tenn. Farmers Life Reassurance Co., 210 S.W.3d at 591;
Montgomery v. Reserve Life Ins. Co., 585 S.W.2d 620, 622 (Tenn. Ct. App. 1979). But see
Berryhill v. Mut. Benefit Health & Accident Ass’n, Omaha, Neb., 262 S.W.2d 878 (Tenn.
Ct. App. 1953). Under slightly different circumstances, however, the Court of Appeals has
permitted recovery in favor of an insured against an insurer. See Bland v. Allstate Ins. Co.,
944 S.W.2d 372, 378 (Tenn. Ct. App. 1996) (granting recovery where the insured had signed
a blank application and the insurer’s agent subsequently filled out the application
erroneously). In summary, direct suits by an insured against the insurer have produced mixed
results, depending largely upon the facts.

                                        B. Analysis
       In the case before us, the question is whether the Plaintiff may recover from the
Defendants who, as the Morrisons’ agents, failed to procure a life insurance policy which
could not be contested by the insurer. Specifically, we must determine whether the
Defendants failed to ask and accurately record the answer to the key question, 17E, that
rendered the policy contestable and resulted in the Plaintiff’s inability to receive benefits
under the policy. This issue is one of first impression in the context of an insured’s failure
to read the contents of an application prepared by the agents of the insured.

       Our preliminary observation is that the best practice is to always read every word of
every document before signing. An applicant who embraces the tedious but important task
of reviewing the terms of an insurance application is likely to avoid disputes of this nature.
Furthermore, while many of the terms of this particular application would be difficult for a
layperson to comprehend, question 17E is quite clear: “In the past five years, have any
proposed insureds been charged with or convicted of driving under the influence of alcohol
or drugs or had any driving violations?” Had Morrison seen this question and corrected the
answer, this litigation might have been avoided.

      Nevertheless, the failure to read does not insulate agents from a suit based upon the
procurement of a contestable policy. The determination of whether the failure to read bars
recovery is, as indicated, a fact-intensive inquiry. However, when an applicant applies for

                                             -12-
an insurance policy and the agent undertakes to fill out the application on his or her behalf,
the applicant should be able to trust that the agent will ask the important questions and
accurately record the answers to them so that the policy cannot later be successfully contested
based on inaccuracies. Here, the Morrisons justifiably relied upon the Defendants to execute
this task. The Plaintiff testified that the Defendants never went over the questions on the life
insurance policy in person or on the phone. She specifically recalled that when the
applications arrived in the mail, they were in a package containing the Morrisons’ paperwork
for their college savings plan and their mutual fund, all of which where filled out and all of
which had “sticky notes” attached directing them where to sign. There was no cover letter
with instructions or correspondence from the Defendants. And while Morrison had time to
review the completed application and seek clarification as to any of the terms, the Plaintiff’s
testimony that “it was obvious that [the Defendants] had done everything for us and all we
needed to do was sign” and that she “had no idea that there were questions on the
application” was accredited by the trial court.

       Further, we conclude that there is ample evidence to support the trial court’s
determination that Morrison was never asked about his driving record and that the
Defendants’ failure to do so resulted in a policy that was successfully contested by American
General. Although Allen claimed to have asked Morrison question 17E, the trial court
specifically chose not to believe Allen’s testimony, finding that he was not a credible witness.
Further, the trial court accredited the Plaintiff’s contention that her husband would have
answered honestly if asked, observing that he had candidly informed his friends and his
employer about the conviction and the restricted license. That Morrison honestly answered
a question about his driving history during the medical examination, which was required
before the issuance of the policy, bolstered the Plaintiff’s account of the events. The
evidence demonstrated that the application, as filled out by the Defendants, was done so in
a careless manner and contained information known to them to be false. While Allen
admitted to knowing that the Morrisons had an existing life insurance policy, on the actual
application he had drawn a line through the question asking if the applicant had an existing
policy, describing the omission as “just a mental block.” He also answered “no” to a
question on the Agent’s Report asking if the proposed insured had any existing life insurance
policies, again describing the mistake as a “mental block.” Allen claimed that the question
regarding tobacco use on the Plaintiff’s application, which was not filled in, was “just a
mistake.” He answered “yes” to another question on the Agent’s Report asking whether he
had seen the applicants on the date of the application, asked each question and accurately
recorded the answers, but unequivocally admitted that he did not see the Morrisons on the
day they signed the applications. Roberts admitted that he did not ask the Plaintiff about her
tobacco use or her driving history at the February 10 meeting, and that he “made assumptions
about her” and should have instead asked the questions. This evidence lends further
credence to the trial court’s determination that the erroneous answer in the application was

                                              -13-
due to the failure of Allen and Roberts to ask the necessary questions.5

       These facts, even as accredited, would not satisfy the standard established in Beasley.
The basis for our decision in this case, however, is a breach of contract between the agent
and the applicant for failure to procure a policy not subject to contest. Beasley dealt with
contract formation and was decided on the basis of misrepresentation in the contract between
the insured and the insurer. As a result, the holding does not apply to the circumstances
before us today.

        In light of the foregoing, we agree with the trial court and Court of Appeals that the
Plaintiff, regardless of any failure to read the applications, established an actionable claim
against their agents for failure to procure. The record includes supporting evidence for each
of the requisite elements. Initially, as part of their professional relationship with the
Morrisons, the Defendants undertook to procure life insurance; secondly, the Defendants’
failure to use reasonable diligence in procuring the life insurance resulted in the issuance of
a policy subject to challenge by the insurer; and, finally, the Defendants’ actions warranted
Morrison’s assumption that he had the life insurance coverage sought.

        While it is true, as Justice Koch notes in his separate opinion, that an insurance policy
was obtained, we disagree that this was the policy for which the Morrisons contracted. It
places form over substance to claim that because an insurance policy was obtained, the
contractual agreement between the Morrisons and the Defendants could not have been
breached. The Morrisons expected that by truthfully answering the questions posed by the
Defendants, they would receive a policy based upon the information they provided. By
failing to ask question 17E, the answer to which, if accurately recorded, would possibly have
changed the nature of the Morrisons’ policy with American General by raising their
premium, the Defendants did not obtain what was promised. Therefore, the Defendants’


        5
           Justice Koch determines that the Plaintiff’s recovery of one million dollars is justified on a breach
of fiduciary duty theory rather than one of failure to procure. While Justice Koch characterizes many of the
facts supporting a failure to procure claim as “specific findings of fact . . . with regard to [the Plaintiff’s]
negligence and breach of fiduciary claims,” we do not think the record can be interpreted in this manner.
In the trial court’s ruling from the bench, it first announced the primary decision, finding the Defendants
liable for breach of contract, negligence, and under the TCPA. The court then stated that it would “talk about
the fact findings,” but did not reference any particular claim. Based on the extensive nature of the court’s
findings, we find that they related to all of the court’s stated bases for finding the Defendants liable, not
merely those based in negligence. And while, as Justice Koch asserts, the facts in the record may very well
support a finding of breach of fiduciary duty as to the procurement of the American General policy, the trial
court found a breach of fiduciary duty based upon the loss of the First Colony policy. Additionally, the
Plaintiff has not asked this Court to address whether the Defendants’ actions support a finding of breach of
fiduciary duty in relation to the procurement of the American General policy.

                                                     -14-
failure to use reasonable diligence in asking one of the key questions used by American
General to determine the type of policy it would issue was a breach of their contractual duty
to the Morrisons.

        As we have stated, an agent’s duty to procure an insurance policy is distinct from the
duty of the insurer to pay under its policy and, as a result, that duty gives right to an
independent cause of action. We decline the Defendants’ invitation to apply the reasoning
of Beasley, Giles, or similar cases involving an insurer’s denial of benefits to this claim for
the failure to procure. Moreover, we disagree with the Defendants that an agent can be
negligent in filling out an insurance application and yet be shielded from any liability by the
signature of the applicant. “[I]nsurance professionals and other fiduciaries [must be held] to
higher standards.” Aden v. Fortsh, 776 A.2d 792, 802 (N.J. 2001). Lastly, we disagree with
the Defendants’ contention that Morrison’s failure to proofread his application interfered
with their ability to perform their own contractual obligations. See Moody Realty Co. v.
Huestis, 237 S.W.3d 666, 678 (Tenn. Ct. App. 2007) (discussing the duty of a party to a
bilateral contract not to interfere with the other party’s ability to perform its duties). The
Defendants’ failure to ask Morrison about his driving history is the core concern. As agents
employed by the Morrisons for their expertise, the Defendants may not claim any greater duty
on their clients’ part to anticipate and rectify their errors. Thus, the trial court did not err by
granting a judgment in the amount of $1,000,000 plus pre-judgment interest.6

                      II. CREDIT FROM $900,000 SETTLEMENT
        The Defendants also argue that the Court of Appeals properly held that the Plaintiff’s
award of damages for failing to procure a valid enforceable life insurance policy should have
been reduced by the $900,000 settlement from American General. The Plaintiff disagrees.
Before deciding whether the Court of Appeals correctly determined that the Defendants were
entitled to a credit, however, we must address a threshold issue. That is, the Plaintiff
continues to argue that the Defendants waived any entitlement to relief by failing to make a
timely offer of proof during the course of the trial.


        6
          Pursuant to Tennessee Code Annotated section 47-14-123, pre-judgment interest “may be awarded
by courts . . . in accordance with the principles of equity at any rate not in excess of a maximum effective
rate of ten percent (10%) per annum.” In Myint v. Allstate Insurance Co., we observed that “[i]n reaching
an equitable decision, a court must keep in mind that the purpose of awarding the interest is to fully
compensate a plaintiff for the loss of the use of funds to which he or she was legally entitled, not to penalize
a defendant for wrongdoing.” 970 S.W.2d 920, 927 (Tenn. 1998). The decision of whether to award
prejudgment interest is within the discretion of the trial court and will not be disturbed on appeal “unless the
record reveals a manifest and palpable abuse of discretion.” Id. We have determined that the trial court’s
decision to award pre-judgment interest at the rate of ten percent starting thirty days after Morrison’s death,
which was the date the Plaintiff would have expected to have use of the insurance policy funds, was well
within the bounds of its discretion.

                                                     -15-
       Prior to trial, the Plaintiff moved to exclude evidence of the settlement amount paid
by American General. The trial court granted the motion. On the third day of trial, the
Defendants’ counsel, suggesting that an offer of proof was likely necessary on the issue,
asked that the court revisit the motion. The following exchange then took place:

       THE COURT: [T]he issue of credit is a real issue which should be addressed
       along with the settlement after the trial is over and judgments are rendered. .
       . . I’m not saying that I’m going to grant a credit or a contribution. I’m just
       saying that the right doesn’t arise until after the case is over, judgments are
       rendered, if there are judgments. And at that point, the Court looks at credits
       and contributions . . . .

       MR. CURRY [attorney for Defendants]: I’m protected. That’s all I care about,
       is at some point, depending on what the Court does, that I will have an
       opportunity. That’s all.

       THE COURT: I think you’ll have an opportunity to address it.

       MR. CURRY: Yes. That’s what I mean.

       THE COURT: All right.

(Emphasis added).

        On March 8, 2007, the trial court entered an order of final judgment. The Defendants
filed a motion to alter or amend and reopen proof, contending they were entitled to a credit
against the judgment. See Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 149
(Tenn. 1991) (noting that after the proof is closed, the trial court has the discretionary
authority to permit additional proof). The trial court denied the motion, noting that the
Defendants “had the opportunity to make an offer of proof during the trial . . . to contend that
the [P]laintiff had mitigated her damages by settling with American General . . . and chose
not to do so.” Further, the trial court found that the Defendants did not have a legal basis for
the credit, as they were “independently liable for their own acts and omissions.”

       The Court of Appeals observed that the “Defendants’ counsel was obviously trying
to avoid the very situation in which he now finds himself – justifying why he made no offer
of proof.” Morrison, 2009 WL 230220, at *6. While noting that the better practice would
have been for the Defendants to have made an offer of proof during the trial, our intermediate
appellate court pointed out that the trial court had directed the Defendants to present their
proof after the trial had ended, which is exactly what they did. The Court of Appeals ruled

                                              -16-
that, under these circumstances, the issue could not be treated as waived, and then examined
the settlement document, which had been filed under seal.7 In our view, the Court of Appeals
properly ruled that the issue had not been waived and that the trial court should have
considered the settlement document.

        The issue of substance, of course, is whether the Defendants were entitled to a credit
in the amount of the Plaintiff’s settlement with American General. The Defendants argue
that the Plaintiff was only damaged “to the extent that she did not receive the proceeds of the
American General policy,” and, because she received $900,000 of the one million dollar
policy, she is only entitled to an additional $100,000. See Metro. Gov’t of Nashville &
Davidson Cnty. v. Cigna Healthcare of Tenn., Inc., 195 S.W.3d 28, 35 (Tenn. Ct. App. 2005)
(“The purpose of assessing damages in the event of a breach of contract is to place the
injured party in the same position it would have been in had the contract been fully
performed.”).

       The Court of Appeals agreed, relying upon the general principle that “‘[w]here a
coverage action against an insurer is joined with an action against an insurance agent or
broker for failure to procure coverage, establishing the liability of either defendant generally
will exonerate the other.’” Morrison, 2009 WL 230220, at *7 (quoting Robert Michael Ey,
14 Causes of Action 881 § 3 (2008)). The Court of Appeals held that an agent who owes a
duty to the insured may remain personally liable in tort for his or her failure to procure
insurance, even where the insured has settled with the insurer, but if liability is based in
contract, as in the case before us, the agent is entitled to have damages reduced by the
settlement amount. Id.

        In this appeal, the Plaintiff maintains that because the Defendants’ liability for failure
to procure is separate and distinct from American General’s liability for failure to pay, the
Defendants are not entitled to a credit for the settlement amount. Initially, we acknowledge
that the Defendants were agents of the Morrisons, not agents of American General. The trial
court specifically found that Allen and Roberts “owe[d] their undivided loyalty” to the
Morrisons at the time they applied for the insurance policies. The Court of Appeals
concurred, observing that Roberts and Allen were employed by the Morrisons to acquire a
new one million dollar life insurance policy, that the Morrisons had relied on their “superior
knowledge,” and that the Defendants had breached their duty to procure an enforceable
insurance policy. Id. at *4. In our view, the evidence clearly demonstrates that the
Defendants’ duty to the Morrisons was separate and distinct from any duty owed them by


        7
          The “General Release and Receipt” releases American General “from any and all claims, demands
causes of action, suits, proceedings, actions, liabilities, damages, debts, judgments, costs, fees, and expenses
of every kind and nature . . . relating to claims in the matter of the arbitration” in this case.

                                                     -17-
American General. As indicated, the Defendants’ liability stemming from this independent
duty is also separate and distinct from that of American General. See Clear-Vu Packaging,
Inc. v. Nat’l Union Fire Ins. Co., 434 N.E.2d 365, 368 (Ill. App. Ct. 1982) (determining that
the insurance company’s failure to pay on the insurance policy caused injury to the plaintiff
that was separate from that which resulted from the agent’s failure to procure the policy).

        Despite the separate liabilities of the Defendants and American General in this setting,
we recognize that the purpose of damages for breach of contract is to place the injured party
in the place he or she would have occupied had the contract been fully performed. Cigna
Healthcare, 195 S.W.3d at 35. Other jurisdictions typically hold that if the insurance
company has settled with the plaintiff on the policy, the agent’s or broker’s damages may
properly be reduced by the settlement amount. See Eddy, 290 N.W.2d at 177 (finding the
liability of independent insurance broker to be “limited to the difference between what the
plaintiffs have received [per settlement with the insurance company] and the face value of
the policy to which they were entitled”); Schurmann v. Neau, 624 N.W.2d 157, 161 & n.4
(Wis. Ct. App. 2000) (noting an insurance agent’s independent liability, but stating that
“when the insurer provides the same coverage through settlement with the insured as was
requested, no action against the agent exists because he has not failed to produce what was
promised”). Because this authority is persuasive, it is apparent that under ordinary
circumstances, an independent insurance agent who is sued on a breach of contract claim for
failing to procure an enforceable insurance policy is entitled to an offset in damages by the
insurance company’s settlement on the policy.

        In each of the instances cited, however, the insurance companies were sued for breach
of the contractual terms within the insurance policies and settled upon that basis alone. Eddy,
290 N.W.2d at 176 (settling claims with insurance company based on breach of contract and
reformation of contract); Schurmann, 624 N.W.2d at 160 (settling claim with insurance
company demanding performance under the policy). American General was sued on multiple
theories: violations of the TCPA (which may result in treble damages),8 negligence,9 breach


        8
          The Plaintiff alleged that American General’s failure to inquire into Morrison’s motor vehicle
records, despite its receipt of conflicting answers regarding his driving record contained in the application
and Nurse Hinds’ medical report, “caused American General to issue what was in effect illusory coverage,
for which it accepted a premium without the corresponding requirement of providing coverage.” The
complaint further asserted that these acts constituted “reckless, unfair, and deceptive acts and omissions” in
violation of the TCPA.
        9
          The complaint alleged that “American General breached its duty of reasonable care by failing to
inquire into the governmental motor vehicle records” in order “to corroborate and verify the answers on . .
. Morrison’s life insurance policy” and that the “direct and proximate result” was that the Plaintiff was left
without effective life insurance in the amount of $1,000,000 and allowed the $300,000 incontestable policy

                                                    -18-
of contract,10 and respondeat superior,11 and entered into a “full, complete and total release
of any and all claims asserted or assertable.” In addition, at the time of the settlement, no
determination had been made regarding whether the Defendants were independent agents.
The complaint alleged that the Defendants were, in fact, agents for American General.
Therefore, American General was contemplating potential liability for its own acts as well
as those of the Defendants.

        While distinguishable on a factual level, an opinion rendered by the Washington Court
of Appeals provides instruction on this issue. In Pederson’s Fryer Farms, Inc. v.
Transamerica Insurance Co., the plaintiff, who owned an underground gasoline storage tank
insured by Transamerica Insurance Company (“Transamerica”), discovered that the tank was
leaking. 922 P.2d 126, 130 (Wash. Ct. App. 1996). After the plaintiff had incurred expenses
in cleaning up the contamination caused by the leak, it submitted a claim to Transamerica for
the costs. Id. at 131. The plaintiff, who apparently had coverage with two other insurers,
settled with them. When Transamerica denied the claim, the plaintiff sued for the cleanup
costs. Id. The trial court declined to extend a credit to Transamerica for the settlement
amount, and Transamerica challenged this ruling, arguing that the plaintiff would “recover
more than it expended in cleaning up the contamination and thus receive an inappropriate
‘double recovery.’” Id. at 139. The Court of Appeals affirmed the trial court, observing that
“[t]he settlement . . . was not mere payment for [the plaintiff’s] cleanup costs; it was in
exchange for a release of liability for all past, present and future environmental claims.
Transamerica did not demonstrate what part, if any, of the settlement was attributable to
cleanup costs.” Id.; accord Weyerhaeuser Co. v. Commercial Union Ins. Co., 15 P.3d 115,
126-27 (Wash. 2000) (applying the Pederson’s rationale under similar, albeit more complex,
factual circumstances).12


to lapse.
        10
            The Plaintiff alleged that “American General breached their contract by accepting premiums from
. . . Morrison when it knew or should have known . . . that the answer to Question No. 17E was inaccurate,”
and that this inaccurate answer could result in the policy being declared void, thereby allowing American
General to refuse benefits. Further, the complaint stated that American General’s failure to corroborate the
information supplied on the insurance policy application caused the loss of the $300,000 policy with First
Colony and the denial of benefits under the $1,000,000 American General policy.
        11
           The Plaintiff claimed that American General was liable for any acts and omissions on the part of
Allen and Roberts and that if they were found liable under the TCPA, American General would be “liable
to [the Plaintiff] for treble damages and attorneys’ fees.”
        12
          In her dissent on this issue, Chief Justice Clark states that “Weyerhaeuser does not stand for the
proposition that, by suing on multiple theories, and then settling without identifying the legal theory
underpinning the settlement, the plaintiff is not subject to the general rule regarding offsets.” We do not

                                                   -19-
        We find the Pederson’s analysis on the credit issue to be helpful in our analysis. In
the Pederson’s case, the settlement document released the other insurance companies from
all past, present, and future claims of any kind or nature, and Transamerica could not offset
its own damages by the settlement amount because it was unable to demonstrate what portion
of the settlement related to the clean-up costs at issue. Here, the Plaintiff’s settlement
agreement also released American General from all past, present, and future claims. While
the nature of the claims here and in Pederson’s are, of course, distinguishable, American
General’s potential “present” liability at the time of settlement was extinguished as to the
Plaintiff’s multiple theories of recovery, not just the breach of contract theory. If American
General had been sued solely on a breach of contract theory, the Defendants would clearly
have been able to demonstrate that the settlement was made solely on that basis and,
accordingly, would be entitled to an offset.13 We cannot assume, however, from the nature
of this agreement, that American General settled solely on the basis of its failure to pay on
the insurance policy.

       While Chief Justice Clark characterizes the Plaintiff’s settlement as stemming solely
from American General’s failure to pay, this ignores the Plaintiff’s claims that American
General breached its duty of reasonable care by failing to reconcile the conflicting statements
in Mr. Morrison’s application and the nurse’s report by researching motor vehicle records
prior to issuing the policy. While this claim relates to the successful contest of the one
million dollar policy on the part of American General, it addresses a wrong that is separate
and distinct from American General’s failure to pay, and instead involves an “unfair or
deceptive act or practice” under the TCPA. As noted, treble damages based upon violations
of the TCPA could have far exceeded the one million dollar policy limit. As a result, we
cannot say with the same confidence as the Chief Justice that there “is no mystery about what
the $900,000 settlement proceeds represent.” We think the more plausible assumption to be
that the company sought to avoid costly liability at trial that could have been based upon
multiple theories of recovery.14


claim that Weyerhaeuser explicitly states such a principle. We cite Weyerhaeuser merely to note that the
Pederson’s analysis has also been utilized by Washington’s highest court.
        13
            Our holding in Beasley suggests that because an insured who fails to read an insurance contract
may be held accountable for a misrepresentation, American General might not have been subjected to
liability on a claim for breach of contract.


        14
           While Chief Justice Clark contends that our ruling will encourage “a ‘kitchen sink’ approach to
filing complaints,” we do not share these concerns. There are procedural and ethical rules in place that will
prevent attorneys from attempting to take advantage of our ruling on this issue by including baseless claims
in a complaint. See Tenn. R. Civ. P. 8.01 (allowing “[r]elief in the alternative or of several different types
[to] be demanded” so long as a litigant makes a showing in the complaint that he or she is “entitled to

                                                    -20-
        As the parties claiming that their damages should have been reduced by the settlement
amount, the Defendants had the burden of establishing their right to such a reduction. Cf.
Polk v. Torrence, 405 S.W.2d 575, 576 (Tenn. 1966) (finding the general rule to be that
“where one claims a setoff the burden of establishing the right of this setoff is upon the one
claiming it”); Midwest Bronze, Inc. v. Outlaw Aircraft Sales, Inc., No. 01A01-9707-CH-
00358, 1999 WL 92652, at *3 (Tenn. Ct. App. Feb. 24, 1999) (same). The terms of the
“General Release and Receipt,” the settlement document, control. The Defendants are unable
to point to anything in that document demonstrating that American General’s payment was
to extinguish its liability solely under the breach of contract theory. Because we find that the
Defendants have failed to meet their burden of proof, we hold that they were not entitled to
a reduction in judgment by the settlement amount.

        The Defendants’ damages should not have been reduced by the $900,000 settlement
with American General; therefore, the appropriate measure of damages for the failure to
procure insurance should be the face value of the American General policy. See J. Smith
Lanier & Co. v. Se. Forge, Inc., 630 S.E.2d 404, 407 (Ga. 2006) (holding that, under Georgia
law, damages against an insurance broker for negligent failure to procure an insurance policy
are limited to the amount of the policy); Autumn Ridge, L.P. v. Acordia of Va. Ins. Agency,
Inc., 613 S.E.2d 435, 440 (Va. 2005) (holding that “the measure of damages for failure to
procure insurance is the amount that would have been due under the policy”); Gothberg v.
Nemerovski, 208 N.E.2d 12, 19 (Ill. App. Ct. 1965) (“The measure of damages for the breach
of a contract to procure insurance is to be determined by the terms of the policy which the
broker failed to procure.”); Capital Site Mgmt. Assocs. v. Inland Underwriters Ins. Agency,
Ltd., 806 N.E.2d 959, 964 (Mass. App. Ct. 2004) (same). The judgment of the Court of
Appeals granting a $900,000 credit is, therefore, reversed, and the judgment of the trial court
is reinstated against the Defendants for the full policy amount of $1,000,000.

 III. NEGLIGENCE, NEGLIGENT MISREPRESENTATION AND BREACH OF
                                   FIDUCIARY DUTY
                                    A. Applicable Law
       The Plaintiff also received damages based on the theory that the Morrisons allowed
their $300,000 life insurance policy to lapse due to the Defendants’ negligence, negligent
misrepresentation, and breach of fiduciary duty. The Defendants challenge the propriety of
the award. Whether liability can be appropriately based on one or more of these theories


relief”); see also Tenn. Sup. Ct. R. 8, RPC 3.1 (“A lawyer shall not bring or defend a proceeding, or assert
or controvert an issue therein, unless after reasonable inquiry the lawyer has a basis in law and fact for doing
so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of
existing law.”).

                                                     -21-
depends on a consideration of the requisite elements for each cause of action.

       In Giggers v. Memphis Housing Authority, this Court confirmed the elements
essential to a recovery based on general negligence:

       In order to establish a prima facie claim of negligence, basically defined as the
       failure to exercise reasonable care, a plaintiff must establish the following
       essential elements: “(1) a duty of care owed by defendant to plaintiff; (2)
       conduct below the applicable standard of care that amounts to a breach of that
       duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause.”

277 S.W.3d 359, 364 (Tenn. 2009) (quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
1995)).

        Negligent misrepresentation, on the other hand, applies to a narrower class of claims.
“[T]o succeed on a claim for negligent misrepresentation, a plaintiff must establish ‘that the
defendant supplied information to the plaintiff; the information was false; the defendant did
not exercise reasonable care in obtaining or communicating the information and the plaintiffs
justifiably relied on the information.’” Walker v. Sunrise Pontiac-GMC Truck, Inc., 249
S.W.3d 301, 311 (Tenn. 2008) (quoting Williams v. Berube & Assocs., 26 S.W.3d 640, 645
(Tenn. Ct. App. 2000)). “Tennessee has adopted Section 552 of the Restatement (Second)
of Torts ‘as the guiding principle in negligent misrepresentation actions against . . .
professionals and business persons.’” Robinson v. Omer, 952 S.W.2d 423, 427 (Tenn. 1997)
(quoting Bethlehem Steel Corp. v. Ernst & Whinney, 822 S.W.2d 592, 595 (Tenn. 1991)).
The Restatement (Second) provides as follows:

       One who, in the course of his business, profession or employment, or in any
       other transaction in which he has a pecuniary interest, supplies false
       information for the guidance of others in their business transactions, is subject
       to liability for pecuniary loss caused to them by their justifiable reliance upon
       the information, if he fails to exercise reasonable care or competence in
       obtaining or communicating the information.

Restatement (Second) of Torts § 552(1) (1977).

       Finally, a fiduciary relationship

       arises when one person reposes special trust and confidence in another person
       and that other person – the fiduciary – undertakes to assume responsibility for
       the affairs of the other party. The person upon whom the trust and confidence

                                              -22-
       is imposed is under a duty to act for and to give advice for the benefit of the
       other person on matters within the scope of the relationship.

Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626, 641-42 (Tenn. 2008) (Koch,
J., concurring) (footnotes omitted) (citing McRedmond v. Estate of Marianelli, 46 S.W.3d
730, 738 (Tenn. Ct. App. 2000); Restatement (Second) of Torts § 874 cmt. a (1979)). “Proof
of damages is an essential element of” a fiduciary duty claim, Union Planters Bank of
Middle Tenn. v. Choate, No. M1999-01268-COA-R3-CV, 2000 WL 1231383, at *3 (Tenn.
Ct. App. Aug. 31, 2000), as is causation of damages. See Restatement (Second) of Torts §
874 (“One standing in a fiduciary relation with another is subject to liability to the other for
harm resulting from a breach of duty imposed by the relation.” (emphasis added)); 23
Tennessee Practice Elements of an Action § 8:1 (2009) (including damages and proximate
cause as elements to the cause of action for fiduciary duty).

                                          B. Analysis
        The Defendants argue that the evidence preponderates against the trial court’s finding
that they failed to adequately advise the Morrisons about the risks of cancelling their
incontestable policy in favor of one subject to contest. The Defendants’ initial argument
hinges in large part on the “Notice Regarding Replacement” attached to the application,
taken from Tennessee Department of Commerce and Insurance Rules “regulat[ing] the
activities of insurers and agents with respect to the replacement of existing life insurance.”
Tenn. Comp. R. & Regs. 0780-01-24-.01 (1985). An agent is required by Rule 0780-01-24-
.05(2)(a) to present a “Notice Regarding Replacement” in the form prescribed by Rule 0780-
01-24-.12 or some “other substantially similar form approved by the Commissioner.” While
the notice speaks generally about the need to “understand the facts” and urges the applicant
“not to take action to terminate, assign or alter your existing life insurance coverage until you
have been issued the new policy, examined it and have found it acceptable,” the content does
not specifically address the issue of contestability, either with regard to the policy being
replaced or the replacement policy. Tenn. Comp. R. & Regs. 0780-01-24-.12 (1985). Upon
a review of the evidence as a whole, however, we have concluded that it is not necessary to
decide whether such a warning was sufficient to absolve the Defendants of liability for
negligence, negligent misrepresentation, or breach of fiduciary duty.

       “Causation, or cause in fact, means that the injury or harm would not have occurred
‘but for’ the defendant’s negligent conduct.” Kilpatrick v. Bryant, 868 S.W.2d 594, 598
(Tenn. 1993). The real question, therefore, is whether the proof establishes that the
Morrisons would have allowed their $300,000 policy to lapse “but for” the Defendants’
conduct. See Hale v. Ostrow, 166 S.W.3d 713, 718 (Tenn. 2005).

       In our view, the Plaintiff simply failed to demonstrate that the Defendants’ conduct

                                              -23-
caused the loss of the $300,000 policy. During the trial, the Plaintiff testified that she and
her husband intended to purchase the American General policy to replace the First Colony
policy. She never contended she and her husband, had they known that the First Colony
policy was incontestable and the American General policy was not, would have continued
to pay the premiums on both policies until the incontestability clause became effective on the
latter policy. The Plaintiff, in this appeal, argues that it “[i]t is a reasonable inference from
the facts that had the Morrisons been told the true risks of dropping the First Colony policy
and starting a new two year contestability period, they would more probably than not have
kept both policies in place until the new two year contestability period had elapsed.”

        We disagree. While some individuals might have chosen to pay the extra premiums
for the security of a non-contestable policy, we are not inclined to infer, absent either direct
or persuasive circumstantial evidence to the contrary, that the Morrisons would have done
so in this instance. The evidence establishes that the primary goal of this transaction was a
$1,000,000 life insurance policy on Morrison. While the Plaintiff has convincingly
established that she incurred damages from the Defendants’ failure to procure an enforceable
$1,000,000 policy, she has not demonstrated that the negligence of the Defendants caused
an additional $300,000 in damages based upon the cancellation of the First Colony policy.
In that regard, the evidence preponderates against the findings of the trial court. The
judgment of $300,000 cannot be sustained under a theory of tort.

                 IV. TENNESSEE CONSUMER PROTECTION ACT
                                     A. Applicable Law
       The trial court held that the Defendants also violated the TCPA as to the First Colony
policy. Tennessee Code Annotated section 47-18-104 prohibits “[u]nfair or deceptive acts
or practices affecting the conduct of any trade or commerce,” classifying such acts as Class
B misdemeanors. Tenn. Code Ann. § 47-18-104(a). Section 47-18-104(b) provides a
lengthy, non-exclusive list of practices that are “unfair or deceptive” under the TCPA.
“[T]he standards to be used in determining whether a representation is ‘unfair’ or ‘deceptive’
under the TCPA are legal matters to be decided by the courts. However, whether a specific
representation in a particular case is ‘unfair’ or ‘deceptive’ is a question of fact.” Tucker v.
Sierra Builders, 180 S.W.3d 109, 116 (Tenn. Ct. App. 2005) (citations omitted). “A
deceptive act or practice is one that causes or tends to cause a consumer to believe what is
false or that misleads or tends to mislead a consumer as to a matter of fact.” Id. An act or
practice is unfair where “‘the act or practice causes or is likely to cause substantial injury to
consumers which is not reasonably avoidable by consumers themselves and not outweighed
by countervailing benefits to consumers or to competition.’” Id. at 116-17 (quoting 15
U.S.C.A. § 45(n)).

       Section 47-18-109(a)(1) creates a cause of action for those who suffer damages as the

                                              -24-
result of practices in violation of section 47-18-104:

       Any person who suffers an ascertainable loss of money or property, real,
       personal, or mixed, or any other article, commodity, or thing of value wherever
       situated, as a result of the use or employment by another person of an unfair
       or deceptive act or practice declared to be unlawful by this part, may bring an
       action individually to recover actual damages.

(Emphasis added.) Section 47-18-109(a)(3)-(4) provides enhanced damages for “willful or
knowing” violations of the TCPA:

       (3) If the court finds that the use or employment of the unfair or deceptive act
       or practice was a willful or knowing violation of this part, the court may award
       three (3) times the actual damages sustained and may provide such other relief
       as it considers necessary and proper.

       (4) In determining whether treble damages should be awarded, the trial court
       may consider, among other things:
               (A) The competence of the consumer or other person;
               (B) The nature of the deception or coercion practiced upon the
               consumer or other person;
               (C) The damage to the consumer or other person; and
               (D) The good faith of the person found to have violated the provisions
               of this part.

                                          B. Analysis
        A claim under the TCPA based on the Defendants’ advice to allow the $300,000 First
Colony policy to lapse fails for the same reason that the Plaintiff’s actions based upon
negligence, negligent misrepresentation, and breach of fiduciary duty fail. A private cause
of action under the TCPA is only available where a plaintiff can show “ascertainable loss of
money or property . . . as a result of the use or employment by another person of an unfair
or deceptive act or practice.” Tenn. Code Ann. § 47-18-109(a)(1). In our view, the Plaintiff
was unable to produce evidence to support the theory that she and her husband would have
continued to pay the premiums on the First Colony policy, thereby maintaining two separate
policies with death benefits totaling $1,300,000. While the evidence was supportive of their
failure to procure claim as to the American General policy, that the Morrisons allowed their
First Colony policy to lapse does not constitute a “loss of money or property” resulting from
any “unfair or deceptive acts” on the part of the Defendants.

       Despite the fact that the judgment of the trial court addressed the TCPA claim only

                                             -25-
in the context of the First Colony policy, the Plaintiff argues that the Defendants also
engaged in various TCPA violations in conjunction with the application for the $1,000,000
American General policy. While the record includes references to the $1,000,000 policy as
a violation of the TCPA, the trial court clearly calculated damages only in terms of the value
of the First Colony policy. Given this fact, we are not inclined to address whether TCPA
damages might alternatively be available based upon any willful and knowing acts of the
Defendants regarding the American General policy.

                               V. COMPARATIVE FAULT
        The trial court determined that comparative fault should not be allocated to the
Morrisons or American General with regard to the Plaintiff’s various tort and TCPA claims.
The Court of Appeals did not disturb the holding. In this appeal, the Defendants argue that
the failure to attribute comparative fault to Morrison and/or American General is erroneous.
Because we have determined that causation and damages were not established by the Plaintiff
as to her various tort theories or her TCPA claim, and the recovery, as modified by this
Court, is based only in contract, it is not necessary for us to address this contention.

                                VI. AD DAMNUM CLAUSE
       The Defendants argue that the trial court’s award of $1,300,000 in compensatory
damages exceeded the amount in the Plaintiff’s ad damnum clause, and therefore the
judgment was void. The Defendants further contend that “[t]he fact that the Court of
Appeals subsequently modified the amount owed by awarding . . . a $900,000 credit for the
settlement . . . against the breach-of-contract award does not cure or moot the ad damnum
problem, because the void judgment remains.” The Defendants assert that the Court of
Appeals “first should have recognized that the trial court’s judgment was void as to the
excess $300,000, and then proceeded to adjust the breach of contract award based on the
$900,000 credit.” 15

        It is true that this Court has held that “[a] judgment or decree in excess of the amount
pleaded is void,” but that is so only “to the extent of the excess.” Gaylor v. Miller, 59
S.W.2d 502, 504 (Tenn. 1932). We conclude that the Court of Appeals’ application of the
$900,000 credit to the breach of contract claim adequately remedied any ad damnum issues,
in that this modified the total damages to $700,000 plus pre- and post-judgment interest,



        15
           The Defendants do not cite any supporting authority for their claim. As a result, the issue has
technically been waived. See Tenn. R. App. P. 27(a)(7) (requiring that appellants “include . . . citations to
authorities . . . relied on” in arguments asserted in briefs); see also Sneed v. Bd. of Prof’l Responsibility, 301
S.W.3d 603, 617 (Tenn. 2010) (holding that appellant’s failure to cite to authority in support of argument
waived issue pursuant to Tenn. R. App. P. 27(a)(7)).

                                                      -26-
which fell well within the damages amount sought in the complaint.16 Because the Court of
Appeals dealt with the credit issue first, it found that it was “unnecessary to address any of
the other arguments raised by the appellants.” Morrison, 2009 WL 230220, at *11. We
agree that, based on the order in which the intermediate court addressed the issues, it was
unnecessary to discuss the matter in further detail.

       Although we have modified the judgment of the Court of Appeals, the ad damnum
clause in the complaint clearly sought “damages in the amount of $1,000,000,” plus pre-
judgment interest from the Defendants. The award, as modified, does not exceed that
amount. Because the Defendants had sufficient notice of the amount of the claim, see Flax
v. DaimlerChrysler Corp., 272 S.W.3d 521, 548 n.1 (Tenn. 2008) (Wade, J., concurring)
(noting that “the purpose of a complaint is to provide notice of a claim”), the Defendants are
not entitled to relief.

                                            Conclusion
        A cause of action for failure to procure an insurance policy may arise when a policy
is contestable due to the wrongful conduct or omission of the agent. Notwithstanding the
Morrisons’ failure to read their insurance applications, the acts of the Defendants, as
determined by the trial court, gave rise to a claim for failure to procure. The judgment for
damages against the Defendants for failing to procure an enforceable life insurance policy
is not offset by the settlement with American General and is not in conflict with the ad
damnum clause in the complaint. Finally, the evidence preponderates against the trial court’s
holding that the Defendants’ actions constituted negligence, negligent misrepresentation,
breach of fiduciary duty and violations of the Tennessee Consumer Protection Act; thus, the
Plaintiff is not entitled to attorney’s fees or pre-judgment interest as to this claim. The Court
of Appeals is reversed in part and affirmed in part, and the case is remanded to the trial court
for determination of post-trial interest. Costs of the appeal shall be taxed one-half to the
Plaintiff and one-half to the Defendants.


                                                         ______________________________
                                                         GARY R. WADE, JUSTICE




        16
           The Plaintiff’s complaint explicitly sought the following: “[t]hat the [P]laintiff be awarded
damages in the amount of $1,000,000”; “[t]hat the [P]laintiff receiv[e] treble damages and attorneys’ fees
under the [TCPA]”; and “[t]hat the [P]laintiff be awarded prejudgment interest.”

                                                  -27-
