It’s Not Nice to Lie to Your Insurer — It’s Expensive

Rescission is an Equitable Remedy

The following was adapted from “Insurance Claims: A Comprehensive Guide” available in two volumes for only $75 (reduced from $196) from ClaimSchool, Inc. at http://www.zalma.com/zalma-books/

When facts essential to a decision to insure or not insure a particular risk are misrepresented or concealed there is no basis for a contract of insurance. It can be, and should be, rescinded at the option of the party deceived.

Rescission is an equitable remedy that allows an insurer that has been deceived to return to the status quo since it would be unfair to require it to insure a person it would not have insured had it known the truth. Similarly, if the insured is deceived, it can return the policy and obtain the premium it paid.

Insurance agents and brokers who place insurance for businesses in which they hold a financial interest may find that they are held to the duties of an agent for the insured rather than an agent for the insurer, even if the agent has an effective agency agreement with the insurer allowing it to bind insurance. In Mountain City Ford, LLC v. Owners Insurance Company and Auto-Owners Insurance Company, No. 2009-CA-002233-MR (Ky.App. 09/02/2011) the Kentucky Court of Appeal agreed that the misrepresentations made were material and that the agent – who was also an owner of the insured – acted as agent for the insured when it submitted an application for information that concealed and misrepresented material facts. The case was not approved for publication and its precedential value is limited.

This case is important because it shows how a third-party liability insurer – faced with a potential rescission – should deal with its insured by adequately reserving its rights and resolving the claim before seeking relief from the court and return of money paid.

Whether Mountain City Ford or Auto-Owners should bear the loss for $1,030,000.00 paid in settlement to the original plaintiffs for injuries, including the death of Joey Kirk. These injuries were incurred in a motor vehicle accident between a Mountain City Ford vehicle driven by Rick Gussler and another vehicle driven by Paul Justice.

Auto-Owners’ policy insuring Mountain City Ford was predicated upon an insurance application prepared by The Elite Agency, Inc. (Elite) and signed by Mountain City, but the policy did not list Gussler as a driver.

All parties agreed that Auto-Owners never knew of Gussler’s existence as a driver of Mountain City vehicles. It was undisputed that Gussler was not listed anywhere on Mountain City’s application to Auto-Owners and the proof at trial was undisputed that had Gussler been listed, Auto-Owners would never have issued the policy to Mountain City Ford.

Mountain City Ford and Mountain City Chevrolet are two small dealerships in Inez, Kentucky, that are owned by James Booth; his daughter, Angela Wilson; and Craig Preece. When they purchased the dealerships they had separate garage insurance policies with Universal Insurance.

Elite is an independent insurance agency founded in 1989 by Jim Booth, Craig Preece, and two other investors. Elite entered into an agency contract authorizing it to write insurance contracts for Auto-Owners.

Auto-Owners is a regional insurance carrier headquartered in Michigan. Auto-Owners writes property and casualty insurance as well as other lines. In 2007, Auto-Owners had a regional office in Lexington, Kentucky.

Marlena Lafferty was a young insurance agent who worked in the Inez, Kentucky, office of Elite. When she heard that Craig Preece, as co-owner of Elite and Mountain City, had suggested that Elite try to write insurance for the Mountain City dealerships, she began gathering information for an application to CarPac, another insurance company, to compare premium prices. Ultimately, she submitted the CarPac application on October 19, 2007, for both Mountain City dealerships. Page 12A of the CarPac application was an “employee/non-employee list.”

On the CarPac application, Lafferty identified all 27 dealership employees and clearly disclosed that Rick Gussler was a salesman who was “not licensed.” Lafferty testified that this information came from e-mails with Mountain City Ford in the first half of October. She also testified that in a telephone conversation with Wellman, he told her both Rick Crum at the Chevrolet dealership and Rick Gussler at the Ford dealership were prohibited from driving dealership vehicles because they did not have driver’s licenses.

The person who completed the Auto-Owners application for the Mountain City dealerships admitted that he only had one phone call with the dealership about the dealerships’ inventory but otherwise had no contact with the dealerships about the application. He testified that he never saw the revised page 12A of the final CarPac application that listed all 27 employees of the dealerships, their jobs, their driver’s license numbers, and whether they were furnished dealership vehicles. As a result, the list of 16 drivers Grim submitted to Auto-Owners was inaccurate, compared to the information the Mountain City dealerships had supplied to Lafferty for the CarPac application.

The Mountain City dealerships application was the first ever submitted to Auto-Owners. The broker at Elite calculated the premium for Auto-Owners based on total payroll for all employees except any clerical staff who never drove dealership vehicles. At the end of the year, Auto-Owners would audit the payroll and adjust the premium up or down. Even though Elite did not know who Gussler was, Gussler’s compensation was included as a salesman in the total payroll figures.

Abby Douglass worked as an underwriter in the Lexington, Kentucky, underwriting office of Auto-Owners until January 2008. Elite never disclosed Gussler as a salesman without a driver’s license, even though such information was disclosed to CarPac. Unbeknownst to Craig Preece, the Elite employee who submitted the application was uninformed about both Gussler being an employee and the Eligibility Guidelines of Auto-Owners.

At trial, Auto-Owners defended Mountain City Ford and Rick Gussler, but did so under a reservation of rights. Despite its misrepresentation coverage defense, Auto-Owners settled the claims for a total of $1,030,000.00 and then pursued this action to void the policy and seek reimbursement from Mountain City and Elite under theories of material misrepresentation and negligence.

Auto-Owners sought rescission and reimbursement from the dealerships for material misrepresentation because Gussler was not listed on the list of “drivers” in the application prepared by Elite. Elite knew of the existence of the unlicensed salesman and had disclosed him on an application to another insurance company, CarPac, but omitted to inform Auto-Owners of his existence.

The jury found against Mountain City but found that Elite was not liable for its failure to list Gussler on the drivers list on the application to Auto-Owners. Mountain City filed a motion for judgment notwithstanding the verdict, arguing that Elite was acting as Auto-Owners’ agent under Kentucky law and, thus, that the policy should not be voided ab initio.

The trial court denied Mountain City’s motion for judgment notwithstanding the verdict, holding that Elite was acting as the agent of Mountain City or as a dual agent for both Auto-Owners and the dealerships when it submitted the application for insurance coverage. The trial court concluded that the “jury has made the factual finding to the effect that Richard Gussler was in fact a driver of insured vehicles; that the omission was material to the risk; and that the Auto Owners would not have issued the policy of insurance had that fact been known.”  Those facts, coupled with the extraordinarily close relationship between Mountain City Ford, LLC, and the Elite Agency, persuaded the Court of Appeal that Elite was acting either as the agent for Mountain City, LLC, or at the very least, was acting in the capacity as a dual agent, for both Mountain City Ford, LLC, and Auto-Owners in preparing and submitting the application for insurance, and then issuing a binder.

Under Kentucky law, whether an insurance agency is an agent for the insured or the insurer when preparing and submitting an application, given alleged material misrepresentations in an application, no one factor is determinative. In Kentucky the fact of agency must be decided on a case by case basis.  The Court of Appeal noted that even if an agency was the insurer’s agent for binding purposes, it did not necessarily mean that it was the insurer’s agent during policy issuance.

The Court of Appeal concluded that Elite was the agent of the dealerships. Specifically, the proof was that Craig Preece, as CFO for Mountain City, signed and verified the application as required by Auto-Owners, and he had the full opportunity to review the application, even though he testified that he did not read the application.

The evidence also demonstrated extensive special circumstances to support a finding that Elite was acting as Mountain City’s agent during the application and policy issuance process. In fact, Mountain City and Elite had the long standing relationship where the companies shared common ownership. The Court of Appeal concluded that the special close relationship and circumstances between Elite and Mountain City Ford supported a finding that Elite was acting as Mountain City Ford’s agent when it bound coverage through Auto-Owners.

An insurance agent or insurance broker is professionally obligated to professionally represent its principal (whether the prospective insured, the insurer, or both) and be certain that the facts stated in the application for insurance are correct and complete. Failure to do so can place the agent or broker in a position of being held responsible for losses suffered by the insured. When the agent or broker is also an owner of the prospective insured it is imperative that the agent or broker read every word in the application – unlike Mr. Craig Preece – and ascertain that the application is totally accurate.

In this case the insurer acted with the utmost good faith – more than the insured was entitled to receive – by providing a defense and settling the case against the insured while reserving its right to recover from the insured. Since the agent was also an owner of the insured its negligence in not providing accurate information to the insurer was sufficient to allow the insurer to rescind and recover the money it paid for the defense of the insured and for the settlement with those suing the insured.

It would appear that the agent, Elite, may be sued by the dealer who is now faced with a judgment of more than $1 million and will probably seek indemnity from Elite for its negligence even though the jury found Elite was not liable to Auto Owners for failing to list the unlicensed driver it may be found liable to the insured for breach of its duty of care.


© 2018 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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