Case Name: Nicolas C. Kelpe v. Unum Group, et al.

Case No.: 18-CV-326094

Currently before the Court is the motion by defendant TBG West Insurance Services, LLC (“TBG West”) for summary judgment or, alternatively, summary adjudication.

Factual and Procedural Background

This is a bad faith insurance coverage action. Plaintiff Nicolas C. Kelpe (“Plaintiff”) was a partner with Ernst & Young, specializing in global compliance and reporting. (Complaint, ¶¶ 14, 19, & 32.) Plaintiff hired TBG West, a licensed insurance broker and agent, to procure insurance for him. (Id. at ¶¶ 11, 15, 16, 41, 42, 47, & 48.) TBG West “represented to Plaintiff that it had special skill, knowledge, expertise and experience in disability insurance,” and allegedly owed Plaintiff a fiduciary duty on this basis. (Id. at ¶ 15.) TBG West sold Plaintiff a disability insurance policy from defendant Provident Life and Accident Insurance Company (“Provident”), an insurance company owned and operated by defendant Unum Group. (Id. at ¶¶ 1-3, 11, 14, 15, & 19.) TBG West “assured Plaintiff it could and would communicate with [Unum Group and Provident] on [his] behalf to advance his interests with respect to his claim for benefits.” (Id. at ¶ 41.)

When he purchased the policy, Plaintiff relied on TBG West’s representations that the policy would provide disability coverage if he was unable to work as partner at Ernst & Young and Provident would pay him a monthly total disability benefit even if he was able to work in a less demanding job. (Complaint, ¶ 16.) However, contrary to its representations, TBG West failed to procure “true own-occupation disability coverage” for Plaintiff. (Id. at ¶ 42.) In actuality, the policy precluded payment of total disability benefits if Plaintiff chose to work in any job while he was disabled. (Id. at ¶¶ 17 & 42.)

While the policy was in effect, Plaintiff became disabled as a result of a myocardial infarction, angina, and related symptoms. (Complaint, ¶ 19.) Plaintiff provided notice of his disability and complete claim forms to Provident and Unum Group. (Id. at ¶ 20.) Plaintiff also submitted proof of his disability and inability to continue work in his position with Ernst & Young. (Ibid.)

Although TBG West represented to Plaintiff that it would “assist Plaintiff in the presentation and submission of his disability claim and assist Plaintiff in obtaining all benefits due him,” TBG West took actions adverse to Plaintiff and in favor of his employer and Unum Group. (Complaint, ¶ 21.) “Among other things,” TBG West discovered that the policy did not provide “true own-occupation coverage” and “discussed this discrepancy with [Provident and Unum Group].” (Ibid.) But TBG West did not advise Plaintiff of the discrepancy or attempt to correct its error. (Ibid.) Additionally, TBG West “coordinated with [Unum Group and Provident] with respect to the drafting of a denial letter sent to Plaintiff.” (Ibid.)

On May 2, 2017, Provident and Unum Group wrongfully denied Plaintiff’s claim for benefits under the policy. (Complaint, ¶ 22.) Provident and Unum Group failed to meaningfully investigate Plaintiff’s claim, “utilized physicians they knew to be biased[,] and ignored Plaintiff’s obvious impairment due to stress-induced angina.” (Ibid.) Additionally, Provident and Unum Group downplayed the seriousness of Plaintiff’s condition, misconstrued medical records, and failed to assign proper weight to the opinions of Plaintiff’s treating physicians. (Id. at ¶¶ 22 & 23.) Plaintiff appealed the denial and provided additional evidence to support his claim, but Provident and Unum Group denied his appeal. (Id. at ¶ 22.) Plaintiff’s claim was allegedly closed in order to meet a predetermined monthly target of claim closures. (Id. at ¶ 24.)

As a result of the actions of Unum Group, Provident, and TBG West (collectively, “Defendants”), Plaintiff was denied disability benefits under the policy. (Complaint, ¶ 25.) Furthermore, Plaintiff suffered emotional distress, anxiety, bodily injury, exacerbation of his condition, and consequential economic harm. (Id. at ¶¶ 26 & 27.)

Based on the foregoing allegations, Plaintiff filed a complaint against Defendants, alleging causes of action for: (1) breach of contract (against Unum Group and Provident); (2) breach of covenant of good faith and fair dealing (against Unum Group and Provident); (3) breach of fiduciary duty (against TBG West); (4) negligence (against TBG West); and (5) tort of another (against TBG West).

Subsequently, Defendants jointly filed an answer to the complaint, generally denying the allegations of the complaint and alleging various affirmative defenses.

On November 15, 2019, TBG West filed the instant motion for summary judgment or, alternatively, summary adjudication. Plaintiff filed papers in opposition to the motion on January 23, 2020. On January 31, 2020, TBG West filed reply papers.

The case is currently set for jury trial on May 18, 2020.

Discussion

Pursuant to Code of Civil Procedure section 437c, TBG West moves for summary judgment of the complaint or, in the alternative, summary adjudication of the third, fourth, and fifth causes of action.

I. Request for Judicial Notice

In its memorandum of points and authorities, TBG West asks the Court to take judicial notice of “Plaintiff’s allegations in the [c]omplaint.” (Oppn., pp. 23:14-24:12.)

TBG West’s request for judicial notice is defective. The request for judicial notice violates California Rules of Court, rule 3.1113, subdivision (l) which states, “Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” Here, TBG West’s request for judicial notice is not set forth in a separate document. Rather, the request is embedded within TBG West’s memorandum of points and authorities.

Accordingly, TBG West’s request for judicial notice is DENIED.

II. Evidentiary Objections

A. Plaintiff’s Objections

In connection with his opposition, Plaintiff submits evidentiary objections to portions of the declaration of Fred Howarth, which was submitted in support of TBG West’s motion.

Plaintiff’s evidentiary objections do not comply with California Rules of Court, rule 3.1354. Rather than submit two separate documents as required by the rule—one setting forth the objections and another setting forth a proposed order—Plaintiff submitted a single packet of objections signed by counsel, with blanks apparently for the Court to indicate its rulings, but with no place for the Court to sign. (See Cal. Rules of Ct., rule 3.1354(b) [a party must provide written objections that comply with one of the formats described in the rule] (c) [a party must provide a proposed order that complies with one of the formats described in the rule].) This hybrid document does not comply with California Rule of Court, rule 3.1354.

Because Plaintiff’s evidentiary objections do not comply with the California Rules of Court, the Court is not required to rule on the objections. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 (Vineyard) [trial courts only have duty to rule on evidentiary objections presented in proper format]; see also Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8 (Hodjat) [trial court is not required to rule on objections that do not comply with California Rules of Court, rule 3.1354 and is not required to give objecting party a second chance at filing properly formatted papers].)

Accordingly, the Court declines to rule on Plaintiff’s objections.

B. TBG West’s Objections

In connection with its reply, TBG West submits evidentiary objections to portions of the declarations of Neal Bordenave, Plaintiff, and Plaintiff’s counsel, which were submitted in support of Plaintiff’s opposition.

TBG West’s evidentiary objections do not comply with California Rules of Court, rule 3.1354. Rather than submit two separate documents as required by the rule—one setting forth the objections and another setting forth a proposed order—TBG West submitted a single packet of objections signed by counsel, with blanks apparently for the Court to indicate its rulings, but with no place for the Court to sign. (See Cal. Rules of Ct., rule 3.1354(b) [a party must provide written objections that comply with one of the formats described in the rule] (c) [a party must provide a proposed order that complies with one of the formats described in the rule].) This hybrid document does not comply with California Rule of Court, rule 3.1354.

Because TBG West’s evidentiary objections do not comply with the California Rules of Court, the Court is not required to rule on the objections. (See Vineyard, supra, 120 Cal.App.4th at p. 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; see also Hodjat, supra, 211 Cal.App.4th at p. 8 [trial court is not required to rule on objections that do not comply with California Rules of Court, rule 3.1354 and is not required to give objecting party a second chance at filing properly formatted papers].)

Accordingly, the Court declines to rule on TBG West’s objections.

III. Legal Standard

The pleadings limit the issues presented for summary judgment or adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Super. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73.)

A motion for summary judgment must dispose of the entire action. (Code Civ. Proc., § 437c, subd. (a); All Towing Services LLC v. City of Orange (2013) 220 Cal.App.4th 946, 954 [“Summary judgment is proper only if it disposes of the entire lawsuit.”].) “Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. [Citation.] Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ [Citation.] ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ [Citation.]” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272.)

“Summary adjudication works the same way, except it acts on specific causes of action or affirmative defenses, rather than on the entire complaint. ([Code Civ. Proc.,] § 437c, subd. (f).) … Motions for summary adjudication proceed in all procedural respects as a motion for summary judgment.’ ” (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464.)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment or adjudication must present admissible evidence. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny the motion on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment or adjudication “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing the motion and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717-18.)

IV. Merits of the Motion

A. Third Cause of Action

1. Allegations of the Third Cause of Action

In the third cause of action for breach of fiduciary duty, Plaintiff alleges he employed TBG West “as an insurance agent and/or broker” and TBG West “represented to [him] that [it] had special skill, knowledge, expertise and experience in disability insurance.” (Complaint, ¶ 41.) TBG West allegedly assured Plaintiff “it could and would communicate with [Unum Group and Provident] on [his] behalf to advance his interests with respect to his claim for benefits.” (Ibid.) Plaintiff alleges TBG West, therefore, owed him a fiduciary duty, which “included the obligation to fully and fairly disclose all information necessary to the purchase and renewal of the product being sold to Plaintiff, i.e., the [p]olicy.” (Ibid.)

TBG West allegedly breached its fiduciary duty “by failing to fully disclose information critical to Plaintiff’s understanding of the [p]olicy, by misrepresenting various provisions of the Policy, and by failing to secure the proper disability coverages.” (Complaint, ¶ 42.) Plaintiff alleges TBG West “failed to properly procure coverage that included true own-occupation disability coverage for [him]” because “the purported definition of ‘Total Disability’ under the Policy precludes entitlement to ‘Total Disability’ benefits whenever [he] is working in another less demanding occupation.” (Ibid.) Plaintiff further alleges that “[TBG West] worked in concert with [Unum Group and Provident] to achieve a denial of [his] claim for benefits.” (Ibid.)

“Had [TBG West] satisfied [its] fiduciary duty, Plaintiff would have [allegedly] either purchased additional insurance or other insurance in order to obtain those benefits he believed he was entitled to under the Policy.” (Complaint, ¶ 44.) Plaintiff also alleges Unum Group and Provident “would not have achieved the denial of [his] claim.” (Ibid.)

Lastly, Plaintiff alleges that he sustained damages as a result of TBG West’s actions. (Complaint, ¶ 45.)

2. Nature of the Claim

Preliminarily, TBG West persuasively argues that the third cause of action for breach of fiduciary duty is more properly characterized as a claim for negligence because its duty to Plaintiff—whether or not phrased as a fiduciary duty—is no greater than the duty to use reasonable care.

As a general matter, “[a] fiduciary relationship has been defined as ‘any relation existing between parties to a transaction wherein one of the parties is … duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter’s knowledge or consent.’ [Citation.]” (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 141.)

“An insurance broker is ‘a person who, for compensation and on behalf of another person, transacts insurance other than life … with, but not on behalf of, an insurer.’ [Citations.] Generally, an insurance agent acts only as the agent for the insured in procuring a policy of insurance. [Citation.] An insurance broker may, however, act in a dual capacity, in which he serves as the insured’s broker in procuring insurance but also acts as the insurer’s agent by collecting the premium and delivering the policy to the insured. [Citations.]” (Mark Tanner Constr. v. Hub Internat. Ins. Servs. (2014) 224 Cal.App.4th 574, 584 (Mark Tanner), italics omitted.)

“The duty of a broker, by and large, is to use reasonable care, diligence, and judgment in procuring the insurance requested by its client. [Citation.]” (Kotlar v. Hartford Fire Ins. Co. (2000) 83 Cal.App.4th 1116, 1123 (Kotlar); Mark Tanner, supra, 224 Cal.App.4th at p. 584 [“ ‘[i]nsurance brokers owe a limited duty to their clients, which is only “to use reasonable care, diligence, and judgment in procuring the insurance requested by an insured.” [Citations.] … ‘California law is well settled as to this limited duty on the part of insurance brokers. [Citations.]’ [Citation.]”].)

Courts may sometimes impose “special and heightened” duties on brokers. (See Kurtz, Richards, Wilson & Co. v. Insurance Communicators Marketing Corp. (1993) 12 Cal.App.4th 1249, 1257 (Kurtz) [“An agent may assume additional duties by an agreement or by holding himself or herself out as having specific expertise.”]; see also Jones v. Grewe (1987) 189 Cal.App.3d 950, 954–955 (Jones) [same].) However, those special duties are not true fiduciary duties. (See Vu v. Prudential Property & Casualty Ins. Co. (2001) 26 Cal.4th 1142, 1150-1151 [discussing the difference between fiduciary duties and special duties in the context of the insurer-insured relationship].) A special duty merely requires the broker to exercise due care in some additional respect and a plaintiff may sue in tort for negligent breach of the special duty. (Jones, supra, 189 Cal.App.3d at pp. 954–955.)

For example, the court in Free v. Republic Ins. Co. (1992) 8 Cal.App.4th 1726, 1729-1730 (Free), opined that when defendant insurance brokers elected to respond to the plaintiff’s inquiries regarding the sufficiency of his coverage, “a special duty arose requiring them to use reasonable care” in responding to the plaintiff’s inquiries and the plaintiff’s claim for breach of that special duty was one for general negligence. Similarly, the court in Kurtz, supra, 12 Cal.App.4th at pp. 1255-1257, held that the insured stated a cause of action against a broker for negligence where insured allegedly relied on the broker’s expertise when signing a certificate representing—erroneously—that the company was not subject to certain statutory provisions involving Medicare coverage because the facts, if true, would establish that the broker assumed a special duty assumed when it held itself out as an expert on the statute.

Thus, “other than when handling an insured’s money, a broker’s duty—whether or not phrased as a fiduciary duty—is not greater than the duty to use reasonable care and diligence in procuring insurance” (Mark Tanner, supra, 224 Cal.App.4th at p. 584) and in representing his or her client (Kotlar, supra, 83 Cal.App.4th at p. 1123).

Here, Plaintiff alleges that TBG West acted as its insurance broker. (Complaint, ¶¶ 11, 15, 16, 41, 42, 47, & 48.) Furthermore, Plaintiff does not alleged that TBG West mishandled his money. Specifically, there are no allegations in the complaint that TBG West received and/or held Plaintiff’s premiums or premium refunds. (See Mark Tanner, supra, 224 Cal.App.4th 574, 584-585; see also Ins.Code, § 1733 [an insurance broker acts in a fiduciary capacity when he receives and holds premiums or premium refunds].) Instead, Plaintiff alleges that TBG failed “to fully disclose information critical to [his] understanding of the [p]olicy,” misrepresented various provisions of the Policy,” failed “to secure the proper disability coverages,” and “worked in concert with [Unum Group and Provident] to achieve a denial of [his] claim for benefits.” (Complaint, ¶ 42.) Thus, the third cause of action is, essentially, one for negligence. (See Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1190 [the nature of a cause of action does not depend on the label it is given by the plaintiff].)

3. Elements of the Claim

“The elements of negligence are: (1) defendant’s obligation to conform to a certain conduct for the protection of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of duty); (3) a reasonably close connection between the defendant’s conduct and resulting injuries (proximate cause); and (4) actual loss (damages).” (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 279 (Vasquez).)

4. Duty and Breach

In its moving papers, TBG West initially argues that it only owed Plaintiff a limited duty to procure the insurance requested by Plaintiff, and it did not assume any special duty to Plaintiff “to advise Plaintiff on additional coverage options.” (Mem. Ps. & As., p. 14:13-21.) TBG West asserts Plaintiff did not request any particular type of coverage and it did not make any misrepresentations to Plaintiff regarding the nature, extent, or scope of the insurance policy. (Id. at p. 15:8-25.) TBG West states that “the only interactions Plaintiff had with [it] regarding the provisions for total or partial disability benefits of the Policy prior to [his] enrollment were [its] marketing and enrollment materials made available to [him] through Ernst & Young, and the first communications [he] had with [it] … [were] in 2016.” (Id. at p. 15:18-22.) TBG West further states that “it is equally clear that [it] did not expressly agree to assume additional duties to Plaintiff and Plaintiff can point to no such express agreement.” (Id. at pp. 15:28-16:1.) Lastly, TBG West apparently concedes that it is an expert in procuring disability insurance, but states that it did not owe Plaintiff a special duty of reasonable care to procure “true own-occupation disability coverage” for him because “it would be objectively unreasonable for Plaintiff … to assume that [it] was his individual agent/broker for which he could rely on for all things related to disability insurance to address [his] individual insurance needs.” (Mem. Ps. & As., p. 16:4-16.)

Next, TBG West states that even if it held itself out to Plaintiff as an expert in the field of disability insurance, its special duty is no greater than the duty to use reasonable care and it did not breach that duty. (Mem. Ps. & As., p. 16:23-18:28.) First, TBG West contends it did not fail to fully disclose information critical to Plaintiff’s understanding of the policy because it provided extensive materials to Plaintiff, which he used to make his decision to purchase the policy. (Id. at p. 17:3-6.) TBG West points out that the materials included a 32-page sample policy contract, containing the same provisions for total and partial disability benefits that Plaintiff ultimately purchased and received. (Id. at p. 17:6-10.) Second, TBG West asserts that it did not misrepresent provisions of the policy to Plaintiff because (1) Plaintiff had no communications with anyone at TBG West about the provisions related to total or partial disability benefits offered in his policy prior to 2016, and (2) it provided Plaintiff with the same policy provisions for total and partial disability that Plaintiff received in the pre-enrollment materials. (Id. at pp. 17:24-18:8.) Third, TBG West contends that “Plaintiff provides no specific evidentiary support” for his allegations that it acted in concert with Unum Group and Provident to deny his disability claim. (Id. at p. 18:9-12.) TBG West further states that it has produced emails between it, Unum Group, and Provident “that clearly demonstrate [its] relentless advocacy on behalf of Plaintiff and seeking to obtain the approval of Plaintiff’s disability claim.” (Id. at p. 18:11-15.) TBG West also states that its involvement in the drafting of the denial letter to Plaintiff consisted of “innocuous and immaterial” edits, “which focus on nothing more than clarity and avoiding confusion.” (Id. at p. 18:15-23.) TBG West further asserts that it “advocated on Plaintiff’s behalf by making revisions [to explanation of benefits letters] favorable to Plaintiff’s claim.” (Id. at p. 18:23-26.)

TBG West proffers UMF Nos. 1-6 in support of its arguments. UMF No. 1 states Plaintiff was insured under a disability policy issued by Provident, which he enrolled in 2012. Next, UMF No. 2 provides Plaintiff signed and acknowledged receipt of an outline of disability insurance coverage for which he applied on August 28, 2012. UMF No. 3 states that “[t]he definitions and formulas for the elimination period, “Total Disability” and “Partial Disability” included in the sample policy contract provided to Plaintiff before his enrollment were the same as those Plaintiff ultimately received.” UMF No. 4 provides that “[t]he first time Plaintiff spoke to anyone at TBG [West] about the provisions related to total or partial disability benefits of the policy was in 2016.” Next, UMF No. 5 states “Plaintiff testified that the marketing and enrollment materials provided to him internally at Ernst & Young, LLP is what he used to make his decision to purchase his disability policy in 2012.” Finally, UMF No. 6 provides that “TBG [West] has never provided “True Own Occupation” or “Own Occupation” disability coverage as part of the plans provided to Ernst & Young, LLP, which has never been part of the Ernst & Young, LLP disability plan offered to its Partners and Principals.”

Here, TBG West does not meet its initial burden to show that Plaintiff cannot establish the elements of duty and breach. The third cause of action is predicated, in part, on the allegation that TBG West, Plaintiff’s insurance agent and/or broker, assured Plaintiff “it could and would communicate with [Unum Group and Provident] on [his] behalf to advance his interests with respect to his claim for benefits.” (Complaint, ¶¶ 21 & 41.) Thus, to dispose of the third cause of action in its entirety, TBG West needed to address whether such an assurance creates a special duty to use reasonable care to communicate with Unum Group and Provident and advance Plaintiff’s interests with respect to his claim for benefits.

TBG West’s arguments regarding duty in its moving papers do not address this issue. For the first time in reply, TBG West asserts that its alleged assurance to Plaintiff that “it could and would communicate with [Unum Group and Provident] on [his] behalf to advance his interests with respect to his claim for benefits” did not create a special duty to use reasonable care to communicate with the insurers and advance Plaintiff’s interests with respect to his claim for benefits. (Reply, p. 11:7-22.) This point should have been made in TBG West’s moving papers, and the attempt to raise the point for the first time in reply is improper as Plaintiff did not have the opportunity to respond to the point in her opposition. (See Tellez v. Rich Voss Trucking Inc. (2015) 240 Cal.App.4th 1052, 1066 [courts do not consider points raised for the first time in a reply brief]; see also Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [points raised for first time in a reply brief will ordinarily be disregarded because other party is deprived of the opportunity to counter the argument]; In re Tiffany Y. (1990) 223 Cal.App.3d 298, 302-303 ; REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.)

In any event, TBG West’s assertion lacks merit. It is well-established that an insurance broker may assume additional duties by agreement and by making representations. (See Kurtz, 12 Cal.App.4th at p. 1257; see also Jones, supra, 189 Cal.App.3d at pp. 954–955; Free, supra, 8 Cal.App.4th at pp. 1729-1730.) To the extent that TBG West affirmatively represented to Plaintiff “it could and would communicate with [Unum Group and Provident] on [his] behalf to advance his interests with respect to his claim for benefits,” TBG West had a duty to do so with reasonable care. (See Free, supra, 8 Cal.App.4th at pp. 1729-1730 [when defendant insurance brokers elected to respond to the plaintiff’s inquiries regarding the sufficiency of his coverage, “a special duty arose requiring them to use reasonable care” in responding to the plaintiff’s inquiries].)

TBG West contends an insurance broker can only assume a special duty of reasonable care with respect to the procurement of a policy and “the advisement of the sufficiency of the policy.” (Reply, p. 11:3-7.) But the cases cited by TBG do contain any such statement of law. Instead, those cases reiterate the general principle that an insurance broker may assume additional duties by agreement and by making representations. Most importantly, the cited cases do not concern a representation by an insurance broker that it could and would communicate with the insurer on the insured’s behalf to advance the insured’s interests with respect to a particular claim. Thus, those cases do not establish that TBG West’s alleged assurance was insufficient to create a special duty to use reasonable care to communicate with the insurers and advance Plaintiff’s interests with respect to his claim for benefits.

With respect to the element of breach, TBG West does not proffer any UMF supporting its assertion that Plaintiff has no evidence showing that it acted in concert with Unum Group and Provident to deny his disability claim. (See Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1213-1214 (Parkview) [when the moving party’s separate statement is deficient because it does not identify a material fact, the trial court has discretion to deny the motion].) UMF Nos. 1-6 simply do not address what evidence, if any, Plaintiff possesses regarding TBG West’s conduct in connection with the denial of his disability claim. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855 [the defendant must present evidence which shows the plaintiff does not possess, and cannot reasonably obtain, needed evidence to support an element of the claim]; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017), p. 10-104, ¶ 10:242, [“Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.”].)

Similarly, TBG West does not offer any UMF supporting its assertion that it engaged in relentless advocacy on behalf of Plaintiff and sought to obtain the approval of Plaintiff’s disability claim. (See Parkview, supra, 133 Cal.App.4th at pp. 1213-1214 [when the moving party’s separate statement is deficient because it does not identify a material fact, the trial court has discretion to deny the motion].) UMF Nos. 1-6 simply do not address what actions, if any, TBG West took to advocate on Plaintiff’s behalf and obtain approval of his disability claim.

For these reasons, TBG West does not meet its initial burden to show that Plaintiff cannot establish the elements of duty and breach.

5. Causation

In its moving papers, TBG West further argues that even if it breached a legal duty owed to Plaintiff, Plaintiff cannot prevail because it could not have caused Plaintiff’s alleged damages. (Mem. Ps. & As., p. 18:10-13.) First, TBG West asserts that any representations it made to Plaintiff regarding the terms of the policy could not have caused Plaintiff harm because the pre-enrollment materials provided to Plaintiff accurately represented the terms of the policy. (Id. at p. 19:18-25.) Second, TBG West states that “Plaintiff … would not have qualified for disability benefits because independent medical doctors did not consider [him] to be either partially or totally disabled other than from the periods of August 15, 2014 to November 17, 2014, and August 1, 2016 to December 19, 2016 ….” (Id. at pp. 19:28-20:2.) Third, TBG West contends that because Unum Group and Provident denied Plaintiff’s claim, “it makes no difference whether Plaintiff’s [p]olicy included ‘own occupation’ coverage or not.” (Id. at p. 20:4-6.) Fourth and finally, with respect to Plaintiff’s allegations that TBG West acted in concert with Unum Group and Provident to deny Plaintiff’s disability claim, TBG West states that “the evidence in this matter directly and irrefutably contradicts such allegations.” (Id. at p. 20:12-14.) TBG West contends that its involvement in the drafting of the denial letter to Plaintiff consisted of “innocuous and immaterial” edits, and were proposed only after Unum Group and Provident had decided to deny the claim. (Id. at p. 20:16-23.) TBG West also asserts that it advocated on Plaintiff’s behalf to achieve approval of him claim. (Id. at p. 20:24-28.)

TBG West offers UMF Nos. 1-6 in support of its arguments.

Here, TBG West does not meet its initial burden to show that Plaintiff cannot establish the element of causation. As explained above, the third cause of action is predicated, in part, on the allegation that TBG West, Plaintiff’s insurance agent and/or broker, assured Plaintiff “it could and would communicate with [Unum Group and Provident] on [his] behalf to advance his interests with respect to his claim for benefits.” (Complaint, ¶¶ 21 & 41.) Although TBG West represented to Plaintiff that it would “assist Plaintiff in the presentation and submission of his disability claim and assist Plaintiff in obtaining all benefits due him,” TBG West allegedly took actions adverse to Plaintiff and in favor of his employer and Unum Group. (Id. at ¶ 21.) Plaintiff alleges that “[h]ad [TBG West] satisfied [its] fiduciary duty,” Unum Group and Provident “would not have achieved the denial of [his] claim.” (Id. at ¶ 44.) Thus, to dispose of the third cause of action in its entirety, TBG needed to show that its alleged adverse actions were not a substantial factor in the denial of Plaintiff’s disability claim.

TBG West does not proffer any UMF supporting its assertion that Unum Group and Provident would have denied Plaintiff’s disability claim regardless of its conduct. (See Parkview, supra, 133 Cal.App.4th at pp. 1213-1214 [when the moving party’s separate statement is deficient because it does not identify a material fact, the trial court has discretion to deny the motion].) UMF Nos. 1-6 simply do not address the reasons for the denial of Plaintiff’s disability claim.

Consequently, TBG West does not meet its initial burden to show that Plaintiff cannot establish the element of causation.

6. Conclusion

Because TBG West fails to meet its initial burden with respect to the third cause of action, its motion for summary judgment of the complaint and motion for summary adjudication of the third cause of action is DENIED.

B. Fourth Cause of Action

In the fourth cause of action for negligence, Plaintiff incorporates the preceding allegations in the complaint. (Complaint, ¶ 46.) Plaintiff then alleges that TBG West “owed a duty to [him] to use due care in procuring insurance for him” and said duty “arose from … [TBG West’s] representations that [its] superior knowledge, expertise and experience would enable them to procure appropriate disability insurance that would satisfy Plaintiff’s needs.” (Id. at ¶¶ 16 & 47.) Plaintiff further alleges that “[b]y failing to disclose critical information, by misrepresenting the provisions of the [p]olicy and by procuring insurance inconsistent with [his] desires and [its] representations to [him], [TBG West] acted negligently, without due care and below the standards of skill, expertise and experience which they represented they possessed, and pursuant to which they undertook to evaluate and assess [his] insurance needs.” (Id. at ¶ 48.) Lastly, Plaintiff alleges that he sustained damages as a result of TBG West’s actions. (Id. at ¶ 49.)

“The elements of negligence are: (1) defendant’s obligation to conform to a certain conduct for the protection of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of duty); (3) a reasonably close connection between the defendant’s conduct and resulting injuries (proximate cause); and (4) actual loss (damages).” (Vasquez, supra, 118 Cal.App.4th at p. 279.)

TBG West presents the same arguments and UMF with respect to the fourth cause of action as it did for the third cause of action.

For the reasons discussed above, TBG West does not meet its initial burden to show that Plaintiff cannot establish the elements of duty, breach, and/or causation. Therefore, its motion for summary adjudication of the fourth case of action is DENIED.

C. Fifth Cause of Action

In the fifth cause of action for tort of another, Plaintiff alleges he has been “required to act in the protection of his interests by bringing an action against [Unum Group and Provident] to recover the disability insurance benefits owed to him” due to “the torts of Defendants.” (Complaint, ¶ 51.) Plaintiff further alleges he “has been forced to engage the services of legal counsel for the purpose of obtaining these insurance benefits and has incurred expenses and loss of time” as a “proximate result of Defendants’ torts.” (Id. at ¶ 52.)

Under California law, it is a well-established principle that attorney fees incurred through instituting or defending an action as a direct result of the tort of another are recoverable damages. [Citations.] Attorney[ ] fees in this context are to be distinguished from “attorney’s fees qua attorney’s fees,” such as those the plaintiff incurs in suing the tortfeasor defendant. [Citation.] Rather, when a defendant’s tortious conduct requires the plaintiff to sue a third party, or defend a suit brought by a third party, attorney fees the plaintiff incurs in this third party action “are recoverable as damages resulting from a tort in the same way that medical fees would be part of the damages in a personal injury action.” [Citations.]

(Third Eye Blind, Inc. v. Near North Entertainment Ins. Services, LLC (2005) 127 Cal.App.4th 1311, 1324-1325.) The “tort of another” doctrine can be applied to permit recovery of fees incurred as a result of an insurance broker’s alleged negligence. (Id. at p. 1325.)

TBG West initially argues the fifth cause of action fails because the third and fourth causes of action fail and, consequently, there is no underlying tortious conduct. (Mem. Ps. & As., pp. 22:14-15 & 23:5-8.)

This initial argument lacks merit because both the third and fourth causes of action survive the instant motion.

Next, TBG West asserts the fifth cause of action fails because its alleged negligence “did not create any type of ambiguity or justification that served as the basis for [Unum Group and Provident’s] denial of Plaintiff’s disability claim.” (Mem. Ps. & As., p. 22:21-23.) TBG West states the “denial of Plaintiff’s disability claim was premised on the finding that Plaintiff was not disabled and the denial was not based on any consideration whether the policy included a coverage for ‘own occupation.’ ” (Id. at p. 22:23-26.)

TBG West proffers UMF Nos. 13-18, which are identical to UMF Nos. 1-6, in support of its argument.

TBG West’s argument is not well-taken because it does not proffer any UMF supporting its assertion that Unum Group and Provident would have denied Plaintiff’s disability claim regardless of its conduct. (See Parkview, supra, 133 Cal.App.4th at pp. 1213-1214 [when the moving party’s separate statement is deficient because it does not identify a material fact, the trial court has discretion to deny the motion].) UMF Nos. 13-18 simply do not address the reasons for the denial of Plaintiff’s disability claim.

For these reasons, TBG West fails to meet its initial burden with respect to the fifth cause of action and its motion for summary adjudication of the fifth cause of action is DENIED.