Calif. Team Prevails in Appeal Against Insurance Agent

San Francisco Partner Rene I. Gambo, San Diego Appellate Practice Partner Jeffry A. Miller, and San Diego Appellate Practice Associate Jonna D. Lothyan prevailed on appeal in a suit alleging an insurance agent should have procured aviation insurance for a pilot.

The action arose from an accident that resulted in the death of the pilot. The decedent’s beneficiaries sued our client, an insurance agent, claiming she was negligent and breached her duty of care in failing to procure aviation insurance. 

The trial court granted summary judgment, finding that our client did not breach a duty of care because she sought policy quotes consistent with the decedent’s requests. The court also found the plaintiffs could not prevail on negligence per se based on a violation of the insurance code because they did not allege breach of the insurance code in the operative complaint.

On appeal, we argued that the trial court properly granted summary judgment because the pleadings delimit the scope of issues raised at summary judgment. Thus, because plaintiffs did not plead facts in their operative complaint to support negligence per se, the plaintiffs could not prevail at summary judgment on a negligence per se theory. We also argued that the plaintiffs abandoned their right to challenge the court’s finding as to their negligence cause of action because they did not argue on appeal that our client breached her duty of care.

The Court of Appeal agreed and limited its opinion to the plaintiff’s negligence per se argument because it was the only argument the plaintiffs raised on appeal. The court affirmed the court’s order granting summary judgment, holding that the plaintiffs failed to allege factual allegations to support their new negligence per se theory raised for the first time in opposition to the summary judgment motion.

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