                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 17a0291n.06

                                        Case No. 16-6549

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                 FILED
                                                         )                 May 23, 2017
ATIC ENTERPRISES, INC.,                                  )             DEBORAH S. HUNT, Clerk
                                                         )
       Plaintiff-Appellee,                               )
                                                         )       ON APPEAL FROM THE
v.                                                       )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE WESTERN
COTTINGHAM & BUTLER INSURANCE                            )       DISTRICT OF KENTUCKY
SERVICES, INC.,                                          )
                                                         )               OPINION
       Defendant-Appellant.                              )
                                                         )
                                                         )
                                                         )

BEFORE: GIBBONS, SUTTON, and COOK, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Plaintiff Atic Enterprises, Inc. (“Atic”) is a

now-defunct trucking company that bought an insurance policy through Cottingham & Butler

Insurance Services, Inc. (“Cottingham & Butler”). After two loads of copper were stolen from

Atic’s trucks, it filed a claim with Cottingham & Butler, which was denied. Atic sued

Cottingham & Butler, contending that the insurance company was negligent and misrepresented

Atic’s policy. Cottingham & Butler defends that it provided more notice of the change in

insurance coverage than is required by Kentucky law. Further, Cottingham & Butler notes that,

despite being asked specifically what cargo the company hauled, Atic concealed that it hauled

copper. The district court granted summary judgment for Cottingham & Butler and dismissed

Atic’s claim. For the reasons that follow, we affirm the judgment of the district court.
Case No. 16-6549, Atic Enterprises v. Cottingham & Butler


                                                   I.

       Atic was a contract-carrier trucking company based in Bowling Green, Kentucky.1 Atic

claimed that it transported general freight, including commodities dry bulk, non-alcoholic

beverages, and paper products, from 2011 to 2014.        Atic also hauled copper, despite not

disclosing this fact to government regulators or to its insurance provider. The company did not

own any of the goods it transported but rather served as a transport service for other companies

shipping their goods.

       From July 2012 to July 2013, Atic had an insurance policy with Westchester Fire

Insurance Company, sold by Cottingham & Butler sales agent Jacob Zeal. Prior to the initial sale

of the 2012–13 policy, Cottingham & Butler requested information from Atic about what

materials the company transported. Atic did not list copper among the items it transported.

Instead, it listed that it transported canned goods, paper and paper products, non-alcoholic

beverages, and general merchandise. It also stated that the information provided an accurate and

complete representation of its business. On this basis, Cottingham & Butler sold Atic a policy

from Westchester Insurance that covered its transporting needs. The 2012–13 policy did not

contain a copper exclusion.

       Prior to the expiration of the initial insurance policy, Westchester notified Atic that it

would not automatically renew its current policy. The notice read that “[i]f we are able to offer

you insurance for the next policy term, the terms, limits and premium may be materially different

from your current insurance policy.” Atic received and read this notice. prompted further

conversations between Atic and Cottingham & Butler’s agent, Zeal, about a policy for 2013–14.

In July 2013, Zeal sent Atic a proposal for a new policy. The proposal included a side-by-side

comparison of the proposed 2013–14 policy and the current 2012–13 policy. The proposal
       1
           The company is no longer in business.

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Case No. 16-6549, Atic Enterprises v. Cottingham & Butler


showed explicitly that copper was excluded from the new policy. In fact, copper is the first item

listed under the “Property Not Covered” list at the bottom of the side-by-side coverage-

comparison page. Again, Atic received and read this policy proposal. Cottingham & Butler

provided Atic with the opportunity to update information about its coverage needs, including a

chance to update the commodities it listed under “cargo” in the proposal paperwork. Atic, again,

did not disclose that it was transporting copper.

       In September 2013, Cottingham & Butler mailed the new 2013–14 policy to Atic.

The new policy included a handful of explicit exclusions, including copper. Each of the new

exclusions was listed on its own page providing specific details. Among them was a separate

page titled “COPPER EXCLUSION.” The page stated, “THIS ENDORSEMENT CHANGES

THE POLICY.       PLEASE READ IT CAREFULLY.”                 It stated that “[c]opper is added to

Paragraph A.2, Property Not Covered.” Atic contends that it never received this policy.

       In early November 2013, two loads of copper were stolen from Atic’s trucks. Following

the theft, Atic contacted Zeal for a copy of the 2013–14 policy. Zeal explained that the new

policy excluded copper but encouraged Atic to submit a claim nonetheless. Atic submitted a

claim, which Cottingham & Butler subsequently denied.

       Atic sued Cottingham & Butler in connection with the 2013–14 policy. Although Atic

initially filed multiple claims against Cottingham & Butler, it abandoned all but its negligence

claim. Cottingham & Butler moved for summary judgment, arguing that it did not have a duty to

advise Atic of the policy change, and that, even if it did have that duty, it was satisfied. The

district court granted Cottingham & Butler’s motion, finding that the 2013–14 policy clearly

stated a copper exclusion, and that there was no further duty to advise or notify Atic of the policy

change. Atic now appeals.



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Case No. 16-6549, Atic Enterprises v. Cottingham & Butler


                                                          II.

       We review a district court’s grant of a summary judgment motion de novo. Great Am.

Ins. Co. v. E.L. Bailey & Co., Inc., 841 F.3d 439, 443 (6th Cir. 2016). Taking the evidence in the

light most favorable to the non-moving party, summary judgment is appropriate “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56. The mere presence of a scintilla of evidence in

support of the non-moving party’s position is insufficient; there must be evidence upon which a

jury could reasonably find for the non-moving party. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.

1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). This diversity action

is governed by Kentucky negligence law.2

                                                          A.

       To recover on a claim of negligence, Kentucky law requires a plaintiff to establish

(1) that the defendant owed a duty of care; (2) that the defendant breached that duty; and (3) that

the breach actually and proximately caused plaintiff’s damages. Helton v. Am. Gen. Life Ins.

Co., 946 F. Supp. 2d 695, 708 (W.D. Ky. 2013) (citing Mullins v. Commonwealth Life Ins. Co.,

839 S.W.2d 245 (Ky. 1992)). Cottingham & Butler argues that it owed Atic a standard duty of

care in the sale of the 2013–14 insurance policy and that it subsequently met that duty. Atic

disagrees. It argues that Cottingham & Butler owed a higher duty of care and was required under

Kentucky law to notify it of the policy change and discuss that change at length in its role as

insurance advisor.        We find that Cottingham & Butler had no such additional duty under

Kentucky law, and even if it did, that the company satisfied that duty.

       The duty an insurance agent has to his clients is a question of law. Hardy Oil Co., Inc. v.

Nationwide Agribusiness Ins. Co., 587 F. App’x 238, 240 (6th Cir. 2014). Under Kentucky law,
       2
           The parties do not dispute the choice-of-law issue, as all relevant events occurred in Kentucky.

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Case No. 16-6549, Atic Enterprises v. Cottingham & Butler


there is “no affirmative duty to advise . . . by the mere creation of an agency relationship.” Id.

Instead, an insurance agent owes his clients a standard duty of reasonable care. Associated Ins.

Serv., Inc. v. Garcia, 307 S.W.3d 58, 63 (Ky. 2010); Helton, 946 F. Supp. 2d at 708. Atic,

however, contends that Cottingham & Butler’s agent, Zeal, took on the special role of insurance

advisor, and with that, owed a heightened standard of care.

       An insurance agent can assume a duty to advise if he expressly or impliedly undertook to

advise his client. Mullins, 839 S.W.2d at 248. “An implied assumption of duty may be present

when: (1) the insured pays the insurance agent consideration beyond a mere payment of the

premium; (2) there is a course of dealing over an extended period of time which would put an

objectively reasonable insurance agent on notice that his advice is being sought and relied on; or

(3) the insured clearly makes a request for advice.” Id. (internal citations omitted).

       Applying these factors, Zeal did not expressly or impliedly assume a duty to advise. Atic

had been using Cottingham & Butler as its insurance agent since 2012. They bought a one year

policy, and then when Westchester indicated it would not renew the policy, they worked for a

second time with Zeal to update their information and purchase a new policy for 2013–14. Thus,

this was not a long course of dealing. Additionally, there is no evidence that Atic paid Zeal

consideration beyond the payment of a premium. Mullins, 839 S.W.2d at 248. And, most

importantly, Atic never made any clear requests for advice on its insurance coverage relating to

transporting copper.     In fact, Atic never even disclosed to Cottingham & Butler that it

transported copper. It withheld that information in the forms Zeal provided as a part of the

application for insurance coverage. As the district court aptly noted, Atic’s “allegations are

simply a description of the role of an insurance agent.” Zeal is licensed, represented that he was

a transportation consultant, tried to sell insurance to Atic, and represented to Atic that it would be



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Case No. 16-6549, Atic Enterprises v. Cottingham & Butler


easier for it to get insurance if it consolidated its company. But this conduct does not make Zeal

responsible to Atic at a higher standard. Thus, Cottingham & Butler owed Atic the standard duty

of care.

                                                B.

       In the insurance context “where the language of an insurance contract unambiguously

explains the terms and conditions, no separate formal notification is required to effectuate a

policy provision unless the unannounced change misleads an insured.”            Marcum v. Rice,

987 S.W.2d 789, 791–92 (Ky. 1999). It is clear from the language of the policy that copper was

excluded from coverage. Thus, Cottingham & Butler had no additional duty to provide separate

notification of the exclusion beyond the language of the policy, and there was no reason to

further explain the policy’s terms because those terms were unambiguous.

       Despite the absence of a duty to provide additional notice, Cottingham & Butler provided

Atic with multiple documents that listed the new policy’s copper exclusion. Atic admits to

reading many of the documents in which the exclusion was present but claims that it did not

notice it. Despite Atic’s protestations, Cottingham & Butler provided ample additional notice of

the policy change prior to the issuance of the new policy, and it did so despite not being required

to provide such notice. Even if, as Atic contends, it did not receive a copy of the 2013–14 policy

from Cottingham & Butler, it was clear in every document leading up to purchasing that policy

that copper was explicitly excluded. And Cottingham & Butler did not know that Atic was

hauling copper, since Atic concealed that fact when it applied for insurance coverage, so Zeal

had no reason to further advise Atic about the exclusion.

                                               III.

       For the reasons stated above, we affirm the judgment of the district court.



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