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1 ALBERT M. T. FINCH, III, ESQ. State Bar # 196478
JASON DENG, ESQ. State Bar # 336941
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ERICKSEN ARBUTHNOT
3 210 North Fourth Street, Suite 350
San Jose, CA 95112
4 afinch@ericksenarbuthnot.com
jdeng@ericksenarbuthnot.com
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Telephone: (408) 286-0880
6 Facsimile: (408) 286-0337
Attorneys for Defendant BRIAN HUNSAKER
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SONOMA
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GARY KOOP
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CASE NO. SCV-266944
Plaintiffs,
13 REDACTED REPLY IN SUPPORT OF
vs. DEFENDANT BRIAN HUNSAKER’S
14 MOTION FOR SUMMARY JUDGMENT
FIRE INSURANCE EXCHANGE dba
OR, IN THE ALTERNATIVE,
15 FARMER INSURANCE GROUP; BRIAN
SUMMARY ADJUDICATION OF ISSUES
HUNSAKER
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Defendants. [Filed concurrently with Defendant Brian
17 Hunsaker’s Redacted Objection to Plaintiff’s
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Evidence in Support of the Opposition; and
[Proposed] Order and Defendant Brian
19 Hunsaker’s Redacted Reply to Plaintiff’s
Response in Opposition to Hunsaker’s
20 Separate Statement of Material Facts and
Conclusions of Law and Plaintiff’s Additional
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Material Facts and Conclusions.]
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Date: October 26, 2022
23 Time: 3:00 P.M.
Dept: 19
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25 Action Filed Action Filed 8/24/20
Trial Date: 2/24/2023
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REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 MEMORANDUM OF POINTS AND AUTHORITIES
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I. INTRODUCTION AND SUMMARY OF ARGUMENT
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After meeting and conferring with Plaintiff GARY HUNSAKER (“Plaintiff”), Defendant
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BRIAN HUNSAKER (“Defendant Hunsaker” or “Hunsaker”) does not contest this Court’s prior
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ruling that a question of fact exists as to whether Plaintiff’s Complaint was timely filed, and
6 would yield to the prior decision made by this honorable Court. However, Hunsaker’s Motion for
7 Summary Judgment or, in the Alternative, Summary Adjudication of Issues (“Motion”) should
8 still be granted as to Defendant Hunsaker because Plaintiff cannot establish at least one element
9 of any of the causes of action he asserts against Hunsaker for the summary judgment. Plaintiff
asserts 3 causes of action against Hunsaker: fraud, misrepresentation, and negligence. For fraud
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and misrepresentation, Plaintiff cannot establish that Hunsaker had knowledge of falsity or
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scienter for any representations he made to Plaintiff. Nor can Plaintiff establish that he had
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reasonable ground or justifiable reliance on the representations Hunsaker made to Plaintiff during
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relevant time of this subject dispute. For negligence, Plaintiff cannot establish that Hunsaker had
14 a duty to him under the general care or under the Fitzpatrick exceptions or that he breached that
15 duty. See Fitzpatrick v. Hayes (1997) 57 Cal.App.4th 916, 927.
16 For the reasons discussed below, Defendant Hunsaker respectfully requests this Court grant
17 Defendant Hunsaker’s Motion in its entirety; alternatively, this Court should grant summary
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adjudication.
II. FRAUD AND MISREPRESENTATION
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Plaintiff generally relies on the prior ruling from this Court (the “February 2022 Ruling”) in
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Defendant FARMERS (“Farmers”) motion for summary judgment on the fraud and negligent
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misrepresentation claims as determinative of the ruling in the instant Motion. That reliance is
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misplaced for several reasons.
23 In pertinent part of the February 2022 Ruling, Plaintiff specifically omits that the below
24 emphasized portion of the full ruling where the Court stated, “This Court ruled that:
25 “Plaintiff has alleged, and the facts support, that Hunsaker misrepresented past and
present facts, at the time of the representations, about the valuation of Plaintiff’s
26 property, and Defendants’ expertise and reliability in making valuations, and that
Defendants promised to provide full coverage but failed to do so. These are
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sufficient to support these causes of action. Farmers fails to meet its burden of
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REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 providing facts or evidence demonstrating as a matter of law that there was
no actionable misrepresentation….” (Emphasis added)
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(February 2022 Ruling at 18:5-12)
3 The duties and obligations of Farmers and Hunsaker in the case are not identical. Defendant
4 Hunsaker asserts that under California law, an insurance agent acting within the scope of his/her
5 agency for a disclosed insurance agency, is an improper defendant. The California Court of
6 Appeal in Lippert v. Bailey (1966), 241 Cal. App. 2d 376, 382, 50 Cal. Rptr. 478, held that
liability to the insured "for acts or contracts of an insurance agent within the scope of his agency,
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with a full disclosure of the principal rests on the company." See also, Kurtz, Richards, Wilson &
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Co., Inc. v. Insurance Communicators Marketing Corporation (1993), 12 Cal. App. 4th 1249,
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1257-58 (in a negligence case, "Where the agent contracts in the name of the insurer and does not
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exceed that authority, the insurer is liable and not the agent.”) Moreover, Plaintiff has failed to
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consider that Defendant Hunsaker is an insurance agent and separate Defendant in this action
12 from Farmers that has no contractual relationship with Plaintiff himself, is not in privity with the
13 Plaintiff, and has a limited fiduciary relationship to Plaintiff. Hydro-Mill Co., Inc. v. Hayward,
14 Tilton and Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145.
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A. The Undisputed Facts Prevent Plaintiff from Establishing the Elements of Fraud or
Misrepresentation
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In the February 2022 Ruling, this Court provides that in pertinent parts that the elements for
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causes of action for fraud and negligent misrepresentation are as:
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“The elements of fraud are 1) misrepresentation, concealment, or false promise, 2)
19 of a material fact; 3) knowledge of falsity or scienter: 4) intent to defraud, or
induce reliance; 5) justifiable reliance; and 6) damage. Seeger v. Odell (1941) 18
20 Cal.2d 409, 414; 5 Witkin, Summary of Cal. Law (11th Ed.2017, June 2020
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Update) Torts, section 890.” (Emphasis added.)
(February 2022 Ruling at 15:6-10)
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“The elements for proving negligent misrepresentation are similar: 1)
23 misrepresentation; 2) of a material fact; 3) no reasonable ground for believing
the representation to be true; 4) intent to induce reliance; 5) actual and
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justifiable reliance by plaintiff; and 6) causation and damages. Melican v.
25 Regents of Univ. of Cal. (2007) 151 Cal. App. 4th 168, 182;
County of Kern v. Sparks (2007) 149 Cal.App.4th 11, 20; Small v. Fritz
26 Companies, Inc. (2003) 30 Cal.4th 167, 173-74; Continental Airlines, Inc. v.
McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 402. (Emphasis added.)
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(February 2022 Ruling at 16:1-7)
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REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
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27 As stated previously, an alleged promise to “fully cover” a property is too vague to be
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REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 enforceable. To contend that Hunsaker and his employees stated that the subject Property would
2 be fully covered year after year and apply that statement to each subsequent policy renewal is
3 preposterous and such a promise would be unenforceable under the statute of frauds. It is also
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hornbook law that an actionable misrepresentation must be made about past or existing facts;
statements; regarding future events are merely deemed opinions.” San Francisco Design Center
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Associates v. Portman Companies (1995), 1 Cal.App.4th 29, 43–44 [50 Cal. Rptr. 2d 716];
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see Apollo Capital, supra, 158 Cal.App.4th at pp. 241, 244.
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Plaintiff had been repeatedly advised before the loss that Hunsaker cannot choose the
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insurance coverage amount for him and ultimately it was Plaintiff’s responsibility to decide the
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adequacy of the coverage. As stated in each policy year renewal, including but not limited to the
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policy under which the instant claim was filed, the application signed and initialed by Plaintiff
17 stated:
18 “The Estimated Reconstruction Cost is based on the unique construction
characteristics and geographic location of your dwelling. It is your responsibility
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to choose the coverage limit that is right for you.” UMF 48. Renewal Offers from
20 Farmers reiterated that the (a) the reconstruction cost estimate was an estimate not
a guarantee of reconstruction costs, and the agent Hunsaker cannot select the
21 Policy’s limits; rather it is Plaintiff’s responsibility to select his own limits.” UMF
54, 55, 115.
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23 These facts are undisputed by Koop.
Further in the 2015 estimate, it contained statement on the first page that:
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“This is an estimate of reconstruction costs. We do not guarantee that this
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estimate reflects your homes’ actual reconstruction cost in the event of a loss;”
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and then on the second page, “We do not guarantee that the reconstruction cost
estimate will reflect your home’s actual reconstruction costs in the event of a
27 loss. We hope your estimate helps you so you can determine the amount of
coverage you need. However, even if all of this factors available in the
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REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 estimating system are or are not utilized in reaching the estimate or if all
information is or is not accurately input, the result will be an estimate which
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you need to evaluate for adequacy. The most important consideration is that
3 you feel you have enough protection to rebuild your home if it were completely
destroyed. If you feel this estimate is not enough, then you should choose an
4 amount of insurance which does match your estimate. If you have questions
about construction costs in your area, please consult a contractor or an
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appraiser.” (Emphasis added.) See Tucker Decl. Exhibit 3.
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Moreover, in Plaintiff’s Response, he did not dispute that Hunsaker is not a contractor and he
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has never held a California Contractor’s license. (Response at 14:11-13). After Plaintiff received
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the Estimate on September 1, 2015 from the email sent by Evans and be advised that he can, and
9 should, make any corrections to it and it was ultimate Plaintiff own responsibility to determine
10 the adequacy of coverage amount for the subject Property, Plaintiff never revisited this topic with
11 Defendant Hunsaker or Evans until after the loss. See Tucker Decl. Exhibit 29, 30.
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Second and more importantly, on the same day, sometime after the phone call Evans sent a
copy of Reconstruction Cost Estimate (“Estimate”) of the subject Property to Plaintiff, and asked
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Plaintiff to review and to make any corrections of the Estimate, and advised Plaintiff that he can
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either email her or call her to discuss any proposed changes to the Estimate. See Tucker Decl.
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Exhibit 3. Therefore, Plaintiff’s assertion that Defendant Hunsaker’s employee Evans “assured
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Plaintiff over the phone that ‘all was okay’ in the event of a fire” is simply not true, let along that
17 Plaintiff “was not an uninvolved participant in his insurance.” [Plaintiff’s Opposition 7:20-21]
18 In short, Defendant Hunsaker did not make any misrepresentations to Plaintiff, but even if he
19 did, Plaintiff cannot reasonably rely on said misrepresentations because Plaintiff had received
20 disclaimers regarding the coverage amount on the subject Property. In addition, because Plaintiff
did not plead and cannot establish that Defendant Hunsaker had knowledge of falsity or scienter
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in the representations he made, or Hunsaker had no reasonable ground for believing the
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representations he made to Plaintiff to be true, Plaintiff’s claims for fraud and misrepresentation
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must fail because Plaintiff cannot establish all elements in those two claims. This Court should
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also note that the facts presented by Plaintiff all relate to prior policy periods which are separate
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contracts of insurance. Each subsequent renewal with differing limits should be considered a
26 separate contract. Each subsequent renewal should be considered a separate contract. See, A.B.S.
27 Clothing Collection, Inc. v. Home Ins. Co. (1995), 34 Cal. App. 4th 1470, 1983-1984.
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REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 Thus, the relevant time for determining any alleged fraud or misrepresentation is the date of
2 last renewal, July 13, 2017. As with other contracts, the law of fraud in the inception applies to
3 the renewal insurance contract; it is voidable if entered into fraudulently.
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III. NEGLIGENCE
The evidence that Plaintiff submits in support of his negligence claim is similar to that
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evidence submitted in support of his fraud and negligent misrepresentation claims. Plaintiff
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essentially claims there was negligent misrepresentation of the home reconstruction cost made by
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Hunsaker. Notably, the general duty of reasonable care which an insurance agent owes his client
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does not include the obligation to procure a policy affording the client complete liability
9 protection …." Jones v. Grewe (1987), 189 Cal.App.3d 950, 956 [234 Cal.Rptr. 717. The onus
10 of setting the insurance limits falls squarely on the insured to inform the agent of the insurance he
11 requires. Jones, at Pg 96; see also Gibson v. Government Employees Ins. Co. (1984), 162 Cal.
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App. 3d 441, 452 [208 Cal. Rptr. 511] [not part of general duty to advise on optimum coverage
amounts or types of insurance available on the general market or to warn when coverage is too
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low]; Shultz Steel Co. v. Hartford Accident & Indemnity Co. (1986) 187 Cal. App. 3d 513, 522-
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523 [***12] [231 Cal. Rptr. 715] [public policy militates against imposing duty on insurer to
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advise of availability of coverage beyond that requested by insured]; Ahern v. Dillenback (1991)
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1 Cal. App. 4th 36, 42-43 [1 Cal. Rptr. 2d 339] [agent has no duty to procure more or different
17 insurance coverage than insured requested]; Malcom v. Farmers New World Life Ins. Co. (1992)
18 4 Cal. App. 4th 296, 303-304 [5 Cal. Rptr. 2d 584] [insurer had no affirmative duty to advise
19 insured specifically about suicide exclusion and its effect on coverage].)
20 “[A]s a general proposition, an insurance agent does not have a duty to volunteer to an
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insured that the latter should procure additional or different insurance coverage.” Fitzpatrick v.
Hayes at 916, 927, Roberts v. Assurance Co of America (2008). The Roberts court observes that
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an agent develops a duty beyond general care “only when one of the following three things
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occurs, (1) the agent misrepresents the nature, extent or scope of the coverage being offered or
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provided; (2) there is a request or inquiry by the insured for a particular type or extent of
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coverage; or (3) the agent assumes an additional duty by either express agreement or by holding
26 themselves out as having expertise in a given field of insurance being sought by the insured.”
27 Roberts v. Assurance Co. of America at pp.1403-1404. To trigger a special duty of care under the
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REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 first scenario, there must be an affirmative misrepresentation. To trigger a special duty of care
2 under the second scenario, an insured’s request for a particular type or extent of coverage must be
3 sufficiently “targeted” or “specific” before an insurance agent will be held to have undertaken an
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obligation to procure the coverage. Fitzpatrick, supra, at Pg. 928-929.
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Although California has no authority on these types of disclaimers, a recent case from sister
jurisdiction from New Hampshire, Sheahan v. State Farm Gen. Ins. Co. (2020), 442 F. Supp. 3d
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1178 (2020) would be instructive on this issue. In Sheahan, the court held that “Even if plaintiffs
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had demonstrated a misrepresentation that fits into one of the Fitzpatrick exceptions thus
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imposing a duty upon State Farm, any reliance was not reasonable or justified because of multiple
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disclaimers that State Farm gave to Plaintiff.” Sheahan at 1187, 1188. Disclaimers that were
17 identified in Sheahan court were “State Farm does not guarantee that any estimate will be the
18 actual future cost to rebuild your home;” “You are encouraged to obtain a current estimate of the
19 cost to rebuild your home from your insurance agent, broker or insurance company or an
20 independent appraisal form a local contractor, architect, or real estate appraiser.” The Sheahan
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Court then cited a case law from another federal appellate court which upheld an order for
summary judgment for the insurer (State Farm), “[H]olding that its use of 360Value to calculate
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an estimate was not a representation that the policy would cover the entire replacement cost of the
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insured’s home. Thus, summary judgment was appropriate against plaintiff’s negligent
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misrepresentation claim because ‘the Policy expressly states that American Family does not
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guarantee its replacement cost estimate’ will be the actual replacement cost in the event of a
26 covered loss and it is up to the policy holder to select the proper amount of coverage.” Sheahan at
27 1188, citing Nelson v. American Family Mutual Insurance Company, 899 F.3d 475, 481 (8th Cir.
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REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 2018). The Sheahan Court then held that “[T]he disclaimers would render any reliance on the
2 alleged misrepresentation by State Farm unreasonable. Accordingly, because plaintiffs have not
3 sufficiently plead misrepresentation or reliance, their claim of negligent misrepresentation mut
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fail.” Sheahan at 1187. Lastly, the Sheahan court held that because plaintiff’s alleged negligent
misrepresentation against State Farm and another defendant, plaintiffs’ negligence claim against
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the same defendants appears to be duplicative of the claim for negligent misrepresentation.
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The case at hand is similar to Sheahan and Nelson, and that Plaintiff’s negligence claim
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appears to be duplicative of his negligent misrepresentation claim against Defendant Hunsaker.
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In addition, Plaintiff’s negligence claim against Hunsaker should also fail because the case at
9 hand cannot trigger Fitzpatrick exceptions scenario one on the ground that even if Hunsaker had
10 made misrepresentations to Plaintiff, Plaintiff cannot reasonably rely on said misrepresentations
11 given abundant disclaimers he had received.
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Here, as discussed above, in the Estimate that Evans sent to Plaintiff on September 1, 2015, it
contains the previously discussed disclaimer:
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“This is an estimate of reconstruction costs. We do not guarantee that this estimate
14 reflects your home’s actual reconstruction cost in the event of a loss”, “We do
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not guarantee that the reconstruction cost estimate will reflect your home’s
actual reconstruction costs in the event of a loss. We hope your estimate helps
16 you so you can determine the amount of coverage your need.” (Emphasis added.)
17 And as set forth in the undisputed material facts in Hunsaker’s UMF 48, 54, 55, 115 relating
18 to the Home Insurance Renewal Offers, including the one dated July 14, 2015, the Renewal
19 Offers contain express admonitions to Koop to choose his own limits and seek additional
20 guidance. These disclaimers in the instant case are identical to the disclaimers in Sheahan.
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Therefore, this Court should consider that authority and find that Plaintiff’s fraud,
misrepresentation, and negligence claim in the case at hand must fail too because Plaintiff cannot
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reasonably argue that he had relied on Hunsaker’s alleged misrepresentations in light of the
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abundant disclaimers he had received.
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Accordingly, Plaintiff cannot prove all elements in the claim for negligence against Defendant
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Hunsaker and it must fail.
26 ///
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REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 IV. CONCLUSION
2 For arguments stated above, a Summary Judgment should be entered in favor of Hunsaker and
3 against Plaintiff. In the alternative, summary adjudication is appropriate.
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5 Dated: October 21, 2022 ERICKSEN ARBUTHNOT
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7 ________________________________
ALBERT M. T. FINCH, III, ESQ.
8 JASON DENG, ESQ.
Attorneys for Defendant BRIAN
9 HUNSAKER
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REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY
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1 ALBERT M. T. FINCH, III, ESQ. State Bar # 196478 JASON DENG, ESQ. State Bar # 336941 2 ERICKSEN ARBUTHNOT 3 210 North Fourth Street, Suite 350 San Jose, CA 95112 4 afinch@ericksenarbuthnot.com jdeng@ericksenarbuthnot.com 5 Telephone: (408) 286-0880 6 Facsimile: (408) 286-0337 Attorneys for Defendant BRIAN HUNSAKER 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SONOMA 10 11 GARY KOOP 12 CASE NO. SCV-266944 Plaintiffs, 13 REDACTED REPLY IN SUPPORT OF vs. DEFENDANT BRIAN HUNSAKER’S 14 MOTION FOR SUMMARY JUDGMENT FIRE INSURANCE EXCHANGE dba OR, IN THE ALTERNATIVE, 15 FARMER INSURANCE GROUP; BRIAN SUMMARY ADJUDICATION OF ISSUES HUNSAKER 16 Defendants. [Filed concurrently with Defendant Brian 17 Hunsaker’s Redacted Objection to Plaintiff’s 18 Evidence in Support of the Opposition; and [Proposed] Order and Defendant Brian 19 Hunsaker’s Redacted Reply to Plaintiff’s Response in Opposition to Hunsaker’s 20 Separate Statement of Material Facts and Conclusions of Law and Plaintiff’s Additional 21 Material Facts and Conclusions.] 22 Date: October 26, 2022 23 Time: 3:00 P.M. Dept: 19 24 25 Action Filed Action Filed 8/24/20 Trial Date: 2/24/2023 26 27 28 -1- REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION AND SUMMARY OF ARGUMENT 3 After meeting and conferring with Plaintiff GARY HUNSAKER (“Plaintiff”), Defendant 4 BRIAN HUNSAKER (“Defendant Hunsaker” or “Hunsaker”) does not contest this Court’s prior 5 ruling that a question of fact exists as to whether Plaintiff’s Complaint was timely filed, and 6 would yield to the prior decision made by this honorable Court. However, Hunsaker’s Motion for 7 Summary Judgment or, in the Alternative, Summary Adjudication of Issues (“Motion”) should 8 still be granted as to Defendant Hunsaker because Plaintiff cannot establish at least one element 9 of any of the causes of action he asserts against Hunsaker for the summary judgment. Plaintiff asserts 3 causes of action against Hunsaker: fraud, misrepresentation, and negligence. For fraud 10 and misrepresentation, Plaintiff cannot establish that Hunsaker had knowledge of falsity or 11 scienter for any representations he made to Plaintiff. Nor can Plaintiff establish that he had 12 reasonable ground or justifiable reliance on the representations Hunsaker made to Plaintiff during 13 relevant time of this subject dispute. For negligence, Plaintiff cannot establish that Hunsaker had 14 a duty to him under the general care or under the Fitzpatrick exceptions or that he breached that 15 duty. See Fitzpatrick v. Hayes (1997) 57 Cal.App.4th 916, 927. 16 For the reasons discussed below, Defendant Hunsaker respectfully requests this Court grant 17 Defendant Hunsaker’s Motion in its entirety; alternatively, this Court should grant summary 18 adjudication. II. FRAUD AND MISREPRESENTATION 19 Plaintiff generally relies on the prior ruling from this Court (the “February 2022 Ruling”) in 20 Defendant FARMERS (“Farmers”) motion for summary judgment on the fraud and negligent 21 misrepresentation claims as determinative of the ruling in the instant Motion. That reliance is 22 misplaced for several reasons. 23 In pertinent part of the February 2022 Ruling, Plaintiff specifically omits that the below 24 emphasized portion of the full ruling where the Court stated, “This Court ruled that: 25 “Plaintiff has alleged, and the facts support, that Hunsaker misrepresented past and present facts, at the time of the representations, about the valuation of Plaintiff’s 26 property, and Defendants’ expertise and reliability in making valuations, and that Defendants promised to provide full coverage but failed to do so. These are 27 sufficient to support these causes of action. Farmers fails to meet its burden of 28 -2- REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 providing facts or evidence demonstrating as a matter of law that there was no actionable misrepresentation….” (Emphasis added) 2 (February 2022 Ruling at 18:5-12) 3 The duties and obligations of Farmers and Hunsaker in the case are not identical. Defendant 4 Hunsaker asserts that under California law, an insurance agent acting within the scope of his/her 5 agency for a disclosed insurance agency, is an improper defendant. The California Court of 6 Appeal in Lippert v. Bailey (1966), 241 Cal. App. 2d 376, 382, 50 Cal. Rptr. 478, held that liability to the insured "for acts or contracts of an insurance agent within the scope of his agency, 7 with a full disclosure of the principal rests on the company." See also, Kurtz, Richards, Wilson & 8 Co., Inc. v. Insurance Communicators Marketing Corporation (1993), 12 Cal. App. 4th 1249, 9 1257-58 (in a negligence case, "Where the agent contracts in the name of the insurer and does not 10 exceed that authority, the insurer is liable and not the agent.”) Moreover, Plaintiff has failed to 11 consider that Defendant Hunsaker is an insurance agent and separate Defendant in this action 12 from Farmers that has no contractual relationship with Plaintiff himself, is not in privity with the 13 Plaintiff, and has a limited fiduciary relationship to Plaintiff. Hydro-Mill Co., Inc. v. Hayward, 14 Tilton and Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145. 15 A. The Undisputed Facts Prevent Plaintiff from Establishing the Elements of Fraud or Misrepresentation 16 In the February 2022 Ruling, this Court provides that in pertinent parts that the elements for 17 causes of action for fraud and negligent misrepresentation are as: 18 “The elements of fraud are 1) misrepresentation, concealment, or false promise, 2) 19 of a material fact; 3) knowledge of falsity or scienter: 4) intent to defraud, or induce reliance; 5) justifiable reliance; and 6) damage. Seeger v. Odell (1941) 18 20 Cal.2d 409, 414; 5 Witkin, Summary of Cal. Law (11th Ed.2017, June 2020 21 Update) Torts, section 890.” (Emphasis added.) (February 2022 Ruling at 15:6-10) 22 “The elements for proving negligent misrepresentation are similar: 1) 23 misrepresentation; 2) of a material fact; 3) no reasonable ground for believing the representation to be true; 4) intent to induce reliance; 5) actual and 24 justifiable reliance by plaintiff; and 6) causation and damages. Melican v. 25 Regents of Univ. of Cal. (2007) 151 Cal. App. 4th 168, 182; County of Kern v. Sparks (2007) 149 Cal.App.4th 11, 20; Small v. Fritz 26 Companies, Inc. (2003) 30 Cal.4th 167, 173-74; Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 402. (Emphasis added.) 27 (February 2022 Ruling at 16:1-7) 28 -3- REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 As stated previously, an alleged promise to “fully cover” a property is too vague to be 28 -4- REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 enforceable. To contend that Hunsaker and his employees stated that the subject Property would 2 be fully covered year after year and apply that statement to each subsequent policy renewal is 3 preposterous and such a promise would be unenforceable under the statute of frauds. It is also 4 hornbook law that an actionable misrepresentation must be made about past or existing facts; statements; regarding future events are merely deemed opinions.” San Francisco Design Center 5 Associates v. Portman Companies (1995), 1 Cal.App.4th 29, 43–44 [50 Cal. Rptr. 2d 716]; 6 see Apollo Capital, supra, 158 Cal.App.4th at pp. 241, 244. 7 8 9 10 11 12 13 Plaintiff had been repeatedly advised before the loss that Hunsaker cannot choose the 14 insurance coverage amount for him and ultimately it was Plaintiff’s responsibility to decide the 15 adequacy of the coverage. As stated in each policy year renewal, including but not limited to the 16 policy under which the instant claim was filed, the application signed and initialed by Plaintiff 17 stated: 18 “The Estimated Reconstruction Cost is based on the unique construction characteristics and geographic location of your dwelling. It is your responsibility 19 to choose the coverage limit that is right for you.” UMF 48. Renewal Offers from 20 Farmers reiterated that the (a) the reconstruction cost estimate was an estimate not a guarantee of reconstruction costs, and the agent Hunsaker cannot select the 21 Policy’s limits; rather it is Plaintiff’s responsibility to select his own limits.” UMF 54, 55, 115. 22 23 These facts are undisputed by Koop. Further in the 2015 estimate, it contained statement on the first page that: 24 “This is an estimate of reconstruction costs. We do not guarantee that this 25 estimate reflects your homes’ actual reconstruction cost in the event of a loss;” 26 and then on the second page, “We do not guarantee that the reconstruction cost estimate will reflect your home’s actual reconstruction costs in the event of a 27 loss. We hope your estimate helps you so you can determine the amount of coverage you need. However, even if all of this factors available in the 28 -5- REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 estimating system are or are not utilized in reaching the estimate or if all information is or is not accurately input, the result will be an estimate which 2 you need to evaluate for adequacy. The most important consideration is that 3 you feel you have enough protection to rebuild your home if it were completely destroyed. If you feel this estimate is not enough, then you should choose an 4 amount of insurance which does match your estimate. If you have questions about construction costs in your area, please consult a contractor or an 5 appraiser.” (Emphasis added.) See Tucker Decl. Exhibit 3. 6 Moreover, in Plaintiff’s Response, he did not dispute that Hunsaker is not a contractor and he 7 has never held a California Contractor’s license. (Response at 14:11-13). After Plaintiff received 8 the Estimate on September 1, 2015 from the email sent by Evans and be advised that he can, and 9 should, make any corrections to it and it was ultimate Plaintiff own responsibility to determine 10 the adequacy of coverage amount for the subject Property, Plaintiff never revisited this topic with 11 Defendant Hunsaker or Evans until after the loss. See Tucker Decl. Exhibit 29, 30. 12 Second and more importantly, on the same day, sometime after the phone call Evans sent a copy of Reconstruction Cost Estimate (“Estimate”) of the subject Property to Plaintiff, and asked 13 Plaintiff to review and to make any corrections of the Estimate, and advised Plaintiff that he can 14 either email her or call her to discuss any proposed changes to the Estimate. See Tucker Decl. 15 Exhibit 3. Therefore, Plaintiff’s assertion that Defendant Hunsaker’s employee Evans “assured 16 Plaintiff over the phone that ‘all was okay’ in the event of a fire” is simply not true, let along that 17 Plaintiff “was not an uninvolved participant in his insurance.” [Plaintiff’s Opposition 7:20-21] 18 In short, Defendant Hunsaker did not make any misrepresentations to Plaintiff, but even if he 19 did, Plaintiff cannot reasonably rely on said misrepresentations because Plaintiff had received 20 disclaimers regarding the coverage amount on the subject Property. In addition, because Plaintiff did not plead and cannot establish that Defendant Hunsaker had knowledge of falsity or scienter 21 in the representations he made, or Hunsaker had no reasonable ground for believing the 22 representations he made to Plaintiff to be true, Plaintiff’s claims for fraud and misrepresentation 23 must fail because Plaintiff cannot establish all elements in those two claims. This Court should 24 also note that the facts presented by Plaintiff all relate to prior policy periods which are separate 25 contracts of insurance. Each subsequent renewal with differing limits should be considered a 26 separate contract. Each subsequent renewal should be considered a separate contract. See, A.B.S. 27 Clothing Collection, Inc. v. Home Ins. Co. (1995), 34 Cal. App. 4th 1470, 1983-1984. 28 -6- REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 Thus, the relevant time for determining any alleged fraud or misrepresentation is the date of 2 last renewal, July 13, 2017. As with other contracts, the law of fraud in the inception applies to 3 the renewal insurance contract; it is voidable if entered into fraudulently. 4 III. NEGLIGENCE The evidence that Plaintiff submits in support of his negligence claim is similar to that 5 evidence submitted in support of his fraud and negligent misrepresentation claims. Plaintiff 6 essentially claims there was negligent misrepresentation of the home reconstruction cost made by 7 Hunsaker. Notably, the general duty of reasonable care which an insurance agent owes his client 8 does not include the obligation to procure a policy affording the client complete liability 9 protection …." Jones v. Grewe (1987), 189 Cal.App.3d 950, 956 [234 Cal.Rptr. 717. The onus 10 of setting the insurance limits falls squarely on the insured to inform the agent of the insurance he 11 requires. Jones, at Pg 96; see also Gibson v. Government Employees Ins. Co. (1984), 162 Cal. 12 App. 3d 441, 452 [208 Cal. Rptr. 511] [not part of general duty to advise on optimum coverage amounts or types of insurance available on the general market or to warn when coverage is too 13 low]; Shultz Steel Co. v. Hartford Accident & Indemnity Co. (1986) 187 Cal. App. 3d 513, 522- 14 523 [***12] [231 Cal. Rptr. 715] [public policy militates against imposing duty on insurer to 15 advise of availability of coverage beyond that requested by insured]; Ahern v. Dillenback (1991) 16 1 Cal. App. 4th 36, 42-43 [1 Cal. Rptr. 2d 339] [agent has no duty to procure more or different 17 insurance coverage than insured requested]; Malcom v. Farmers New World Life Ins. Co. (1992) 18 4 Cal. App. 4th 296, 303-304 [5 Cal. Rptr. 2d 584] [insurer had no affirmative duty to advise 19 insured specifically about suicide exclusion and its effect on coverage].) 20 “[A]s a general proposition, an insurance agent does not have a duty to volunteer to an 21 insured that the latter should procure additional or different insurance coverage.” Fitzpatrick v. Hayes at 916, 927, Roberts v. Assurance Co of America (2008). The Roberts court observes that 22 an agent develops a duty beyond general care “only when one of the following three things 23 occurs, (1) the agent misrepresents the nature, extent or scope of the coverage being offered or 24 provided; (2) there is a request or inquiry by the insured for a particular type or extent of 25 coverage; or (3) the agent assumes an additional duty by either express agreement or by holding 26 themselves out as having expertise in a given field of insurance being sought by the insured.” 27 Roberts v. Assurance Co. of America at pp.1403-1404. To trigger a special duty of care under the 28 -7- REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 first scenario, there must be an affirmative misrepresentation. To trigger a special duty of care 2 under the second scenario, an insured’s request for a particular type or extent of coverage must be 3 sufficiently “targeted” or “specific” before an insurance agent will be held to have undertaken an 4 obligation to procure the coverage. Fitzpatrick, supra, at Pg. 928-929. 5 6 7 8 9 10 11 12 Although California has no authority on these types of disclaimers, a recent case from sister jurisdiction from New Hampshire, Sheahan v. State Farm Gen. Ins. Co. (2020), 442 F. Supp. 3d 13 1178 (2020) would be instructive on this issue. In Sheahan, the court held that “Even if plaintiffs 14 had demonstrated a misrepresentation that fits into one of the Fitzpatrick exceptions thus 15 imposing a duty upon State Farm, any reliance was not reasonable or justified because of multiple 16 disclaimers that State Farm gave to Plaintiff.” Sheahan at 1187, 1188. Disclaimers that were 17 identified in Sheahan court were “State Farm does not guarantee that any estimate will be the 18 actual future cost to rebuild your home;” “You are encouraged to obtain a current estimate of the 19 cost to rebuild your home from your insurance agent, broker or insurance company or an 20 independent appraisal form a local contractor, architect, or real estate appraiser.” The Sheahan 21 Court then cited a case law from another federal appellate court which upheld an order for summary judgment for the insurer (State Farm), “[H]olding that its use of 360Value to calculate 22 an estimate was not a representation that the policy would cover the entire replacement cost of the 23 insured’s home. Thus, summary judgment was appropriate against plaintiff’s negligent 24 misrepresentation claim because ‘the Policy expressly states that American Family does not 25 guarantee its replacement cost estimate’ will be the actual replacement cost in the event of a 26 covered loss and it is up to the policy holder to select the proper amount of coverage.” Sheahan at 27 1188, citing Nelson v. American Family Mutual Insurance Company, 899 F.3d 475, 481 (8th Cir. 28 -8- REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 2018). The Sheahan Court then held that “[T]he disclaimers would render any reliance on the 2 alleged misrepresentation by State Farm unreasonable. Accordingly, because plaintiffs have not 3 sufficiently plead misrepresentation or reliance, their claim of negligent misrepresentation mut 4 fail.” Sheahan at 1187. Lastly, the Sheahan court held that because plaintiff’s alleged negligent misrepresentation against State Farm and another defendant, plaintiffs’ negligence claim against 5 the same defendants appears to be duplicative of the claim for negligent misrepresentation. 6 The case at hand is similar to Sheahan and Nelson, and that Plaintiff’s negligence claim 7 appears to be duplicative of his negligent misrepresentation claim against Defendant Hunsaker. 8 In addition, Plaintiff’s negligence claim against Hunsaker should also fail because the case at 9 hand cannot trigger Fitzpatrick exceptions scenario one on the ground that even if Hunsaker had 10 made misrepresentations to Plaintiff, Plaintiff cannot reasonably rely on said misrepresentations 11 given abundant disclaimers he had received. 12 Here, as discussed above, in the Estimate that Evans sent to Plaintiff on September 1, 2015, it contains the previously discussed disclaimer: 13 “This is an estimate of reconstruction costs. We do not guarantee that this estimate 14 reflects your home’s actual reconstruction cost in the event of a loss”, “We do 15 not guarantee that the reconstruction cost estimate will reflect your home’s actual reconstruction costs in the event of a loss. We hope your estimate helps 16 you so you can determine the amount of coverage your need.” (Emphasis added.) 17 And as set forth in the undisputed material facts in Hunsaker’s UMF 48, 54, 55, 115 relating 18 to the Home Insurance Renewal Offers, including the one dated July 14, 2015, the Renewal 19 Offers contain express admonitions to Koop to choose his own limits and seek additional 20 guidance. These disclaimers in the instant case are identical to the disclaimers in Sheahan. 21 Therefore, this Court should consider that authority and find that Plaintiff’s fraud, misrepresentation, and negligence claim in the case at hand must fail too because Plaintiff cannot 22 reasonably argue that he had relied on Hunsaker’s alleged misrepresentations in light of the 23 abundant disclaimers he had received. 24 Accordingly, Plaintiff cannot prove all elements in the claim for negligence against Defendant 25 Hunsaker and it must fail. 26 /// 27 /// 28 -9- REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 IV. CONCLUSION 2 For arguments stated above, a Summary Judgment should be entered in favor of Hunsaker and 3 against Plaintiff. In the alternative, summary adjudication is appropriate. 4 5 Dated: October 21, 2022 ERICKSEN ARBUTHNOT 6 7 ________________________________ ALBERT M. T. FINCH, III, ESQ. 8 JASON DENG, ESQ. Attorneys for Defendant BRIAN 9 HUNSAKER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- REDACTED REPLY IN SUPPORT OF DEFENDANT BRIAN HUNSAKER’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES