b'Wyatt continued from page 9scope of the coverage being offered or provided, (b) there is ainquiry), Murrays evidence raised a triable issue of material fact request or inquiry by the insured for a particular type or extentregarding application of the third exception (holding itself out of coverage, or (c) the agent assumes an additional duty by eitheras having expertise). express agreement or by holding himself out as having expertise in a given field of insurance being sought by the insured. The case was remanded to permit a jury to resolve the triable issue of material fact as to whether UPS Capital was holding itself Whether a duty of care exists is a question of law for the court.out as having expertise in a specialized area of insurance, and Also, whether, and the extent to which, a new duty is recognizedtherefore, assumed a heightened duty of care. is ultimately a question of public policy.Any extension of the existing exceptions or creation of a new duty is ultimately aLESSONS:question of public policy.1. The duty of insurance brokers/agents is limited to those found in any agency relationship such as reasonable care, diligence, The appellate court found no case law specifically defining theand judgment in procuring the insurance requested by an phrase holding themselves out as having expertise, but itinsured.discussed the factors that should be considered when applying this exception, as discussed in the 1997 decision in Fitzpatrick. 2. An insurance agent may assume a greater duty to the insured when one of the following three exceptions arise: (a) the agent The Fitzpatrick first of three exceptions, when the agentmisrepresents the nature, extent or scope of the coverage misrepresents the nature, extent or scope of the coveragebeing offered or provided, (b) there is a request or inquiry by being offered or provided, was based on the courts analysis ofthe insured for a particular type or extent of coverage, or (c) the three cases: Nacsaagent misrepresented policy provided fullagent assumes an additional duty by either express agreement coverage to replace business personal property in case of totalor by holding himself out as having expertise in a given field loss; Desaiagent misrepresented insured getting 100 percentof insurance being sought by the insured.replacement cost coverage with real property insurance policy; and Freehomeowner specifically inquired if coverage limitsCraig B. Forry, Esq., FORRY LAW GROUP,(818) 361-1321 ForryLaw@adequate to rebuild home.Aol.com.The second exception, when there is a request or inquiry by the insured for a particular type or extent of coverage, was based on Westrick, where an insurance agent failed to disclose facts about immediate coverage for a recently purchased truck in response to a specific inquiry about coverage. The court determined the agent had a duty to explain a limiting provision to the insured because the insured made prior inquiries regarding coverage of a welding truck under his existing policy and the agent had superior knowledge of the scope of the policys automatic coverage clause. The third exception applied when the agent assumes an additional duty by either express agreement or by holding himself out as having expertise in a given field of insurance being sought by the insured.The appellate court concluded in Murray that neither case authority nor public policy support creation of a per se rule regarding specialists, but rather courts must utilize a totality of the circumstances approach. Evidence of specialization at a minimum creates a presumption the agent/broker anticipates their clients will rely on their acknowledged expertise, and supports courts imposing an extended duty. While UPS Capitals evidence adequately refuted application of the second exception (applicable when there is a request/Page 10 Spring 2021'