UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 8, 2011
ENERGY 2001, PLAINTIFF,
PACIFIC INSURANCE COMPANY ASSOCIATES INSURANCE AGENCY,
LIMITED INCORPORATED, ET AL., INC., AND RICK VERNE MCKINLEY DEFENDANTS.
The opinion of the court was delivered by: John A. Mendez United States District Court Judge
ORDER TO GRANT MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS ALAMEDA
Date: December 7, 2011 Time: 9:30 a.m. Place: Courtroom 6
Judge: Hon. John A. Mendez
Date Action Filed: February 17, 2010
Trial Date: March 12, 2012
This matter comes before the court on the Rule 56 Motion for Summary Judgment 15 (ECF #73) filed by defendants Alameda Associates Insurance Agency, Inc., and Rick Verne 16 McKinley (hereafter referred to collectively as "AAIA"). Plaintiff Energy 2001, Inc., filed 17 written opposition to the motion, and AAIA filed a written reply. A hearing on the motion was 18 calendared for 9:30 a.m. on December 7, 2011, with the Hon. John A. Mendez, District Judge, 19 presiding.
Factual and Procedural Background
In this action, plaintiff's Second Amended Complaint (ECF #48) alleges two claims 22 against AAIA. In a Fourth Cause of Action, entitled "Negligence," plaintiff alleges that AAIA 23 has breached an insurance broker's professional duty of care, in that AAIA owed to plaintiff an 24 alleged duty to obtain insurance coverage sufficient to cover a loss that plaintiff suffered on 25
August 8, 2008, and that AAIA failed to do so. In a Second Cause of Action, entitled "Breach 26 of Oral Contract," plaintiff alleges that AAIA breached an oral agreement to obtain insurance 27 coverage sufficient to cover that same August 2008 loss. Plaintiff's Breach of Contract claim 28 depends inter alia on the theory that it fell within the scope of AAIA's professional duty of care 2 to obtain such insurance. It follows that plaintiff's breach of contract claim necessarily depends 3 on the same factual showing regarding the scope of that duty as its negligence claim. 4
Plaintiff chose not to designate a standard of care expert within the July 1, 2011, 5 deadline that this court set in its Status (Pre-trial Scheduling) Order (ECF #24), or at all. AAIA 6 contends that California law requires the opinion evidence of a standard of care expert to sustain 7 plaintiff's claim of professional negligence, and that in the absence of such evidence plaintiff's 8 negligence claim must fail as a matter of law. 9
AAIA contends that plaintiff's claim for breach of contract claim must fail for the same 10 reason: that this claim necessarily depends on the theory that AAIA owed to plaintiff a 11 professional duty of care to procure insurance coverage sufficient to cover plaintiff's August 12 2008 loss. AAIA therefore contends that plaintiff's breach of contract claim must likewise fail 13 as a matter of law.
AAIA contends further that plaintiff's claim for breach of contract depends, in addition, on the theory that AAIA expressly agreed to research and procure the correct amount of insurance and appropriate insurance coverages to ensure plaintiff for any and all conceivable losses that were insurable, but that plaintiff can submit no evidence in support of that theory.
To the contrary, AAIA contends that undisputed facts show that its agreement with respect to 18 plaintiff's business property was to obtain insurance coverage sufficient to satisfy plaintiff's 19 creditor, Caterpillar Financial, and that AAIA performed that agreement without exception 20 throughout its relationship with plaintiff.
Plaintiff denies plaintiff's contentions and contends that triable issues of fact remain, 22 sufficient to preclude judgment as a matter of law
AAIA has filed a written Objections to the Declarations Submitted by Plaintiff (ECF 25 #84-1). AAIA objects to paragraphs 3 and 4 of Declaration of Geoffrey O. Evers (pages 51 to 26 53 of ECF #83-2), on the ground that they are hearsay not within any exception. AAIA objects 27 to paragraphs 3 and 4 of Declaration of Laura McClellan (pages 54 to 57 of ECF #83-2), on the ground that they are hearsay not within any exception. The court finds all four of these 2 objections to be well taken. All four of these objections are sustained.
As required by Rule 260(a) of the Local Rules of this court, AAIA filed a Statement of Uncontested Facts (ECF #75) in support of its motion. Rule 260(b) of the Local Rules then 5 required plaintiff to reproduce that Statement of Undisputed Facts and to admit those facts that 6 were undisputed and deny those that were disputed. Plaintiff did not do this. At the hearing on 7 the motion, plaintiff stated on the record that there was nothing to dispute and that every fact in 8 AAIA's Statement of Undisputed Facts was undisputed.
The court finds on uncontested facts that plaintiff chose not to designate a standard of 10 care expert on a timely basis. Plaintiff's negligence claim requires the evidence of a standard of 11 care expert. United States Fidelity & Guaranty Co. v. Lee Investments, LLC, 641 F.3d 1126, 12 1138-1139 (9th Cir. 2011). Plaintiff has no such evidence. Plaintiff cannot rely on the 13 deposition testimony of defendant McKinley to establish the standard of care. Plaintiff has 14 failed to establish Mr. McKinley as expert, and did not disclose Mr. McKinley as required by Federal Rules of Civil Procedure Rule 26. Because plaintiff's claim for negligence requires a standard of care expert and plaintiff has not designated a standard of care expert, plaintiff's claim for negligence is subject to dismissal.
The same waiver of the opportunity to designate a standard of care expert is equally 18 effective with respect to plaintiff's claim that AAIA orally agreed to obtain insurance coverages 19 which would have been sufficient to cover the August 2008 loss. Whether or not AAIA 20 breached this alleged agreement depends in part on whether AAIA met a professional standard 21 of care. In the absence of a standard of care expert, plaintiff can submit no expert opinion 22 evidence on that issue.
Regarding plaintiff's further theory that AAIA expressly agreed to research and procure 24 the correct amount of insurance and appropriate insurance coverages to ensure plaintiff for any 25 and all conceivable losses that were insurable, AAIA contends that there was no mutual consent 26 to that term. AAIA has submitted undisputed facts in support of this contention. Plaintiff does 27 not deny these facts. AAIA has submitted undisputed facts showing that its agreement with plaintiff was to obtain insurance sufficient to satisfy Caterpillar Financial, PG&E, and the 2 WPWMA, and that it performed this agreement. Plaintiff does not deny these facts.
The burden shifts to plaintiff to submit admissible evidence to show that AAIA did 4 agree to undertake a duty to procure insurance sufficient to cover any and all conceivable losses. 5 Plaintiff has failed to discharge that burden. Plaintiff has submitted no admissible evidence to 6 show that AAIA agreed to procure insurance sufficient to cover any and all conceivable losses. 7 Therefore, plaintiff's breach of contract claim is also subject to dismissal.
For the foregoing reasons, the Motion for Summary Judgment filed by defendants Alameda Associates Insurance Agency, Inc., and Rick Verne McKinley is hereby granted.
IT IS SO ORDERED.
John A. Mendez
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