LOCAL 3126 NATL ASSN LTR V TIG INSUR CO
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STATE OF MICHIGAN
COURT OF APPEALS
LOCAL 3126 of the NATIONAL ASSOCIATION
OF LETTER CARRIERS OF THE UNITED
STATES OF AMERICA and PAUL ROZNOWSKI,
Individually and as an agent/servant/employee of the
NATIONAL ASSOCIATION OF LETTER
CARRIERS OF THE UNITED STATES,
UNPUBLISHED
April 18, 2000
Plaintiffs-Appellants,
v
JUDGE-MCKEE INSURANCE AGENCY, INC.,
Defendant-Appellee.
No. 198934
Oakland Circuit Court
LC No. 95-507194 CK
ON REMAND
Before: Gribbs, P.J., and Murphy and Gage, JJ.
GAGE, J. (dissenting).
As I did in our previous consideration of this matter, Local 3126 of the Nat’l Ass’n of Letter
Carriers of the USA v Judge-McKee Ins Agency, Inc, unpublished opinion per curiam of the Court of
Appeals, issued 4/3/98 (Docket No. 198934) (Gage, J. dissenting), I again respectfully dissent.
The Supreme Court remanded this case for reconsideration in light of its opinion in Harts v
Farmers Ins Exchange, 461 Mich 1, 10-11; 597 NW2d 47 (1999), in which it held that an insurance
agent owes no duty to advise a potential insured about any coverage unless (1) the agent misrepresents
the nature or extent of the coverage offered or provided, (2) an ambiguous request is made that requires
a clarification, (3) an inquiry is made that may require advice and the agent, through he need not, gives
advice that is inaccurate, or (4) the agent assumes an additional duty by either express agreement with
or promise to the insured. I find that plaintiffs failed to present documentary evidence suggesting the
existence of any of these special relationship exceptions to the general “no duty” rule.
With respect to the question whether defendant misrepresented the scope of plaintiffs’
coverage, I rely on the same analysis of the record set forth in my previous dissent. Plaintiffs have failed
to specifically set forth any statements of defendant’s agent that could be deemed misrepresentations.
Fraud and misrepresentation are similar and require proof that (1) the defendants made a material
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misrepresentation; (2) it was false; (3) when the defendants made it, the defendants knew that it was
false or made recklessly without knowledge of its truth or falsity; (4) the defendants made it with the
intent that the plaintiffs would act on it; (5) the plaintiffs acted in reliance on it; and (6) the plaintiffs
suffered damage. Mitchell v Dahlberg, 215 Mich App 718, 723; 547 NW2d 74 (1996).
Circumstances constituting fraud must be stated with particularity. Kassab v Michigan Basic Property
Ins Ass’n, 441 Mich 433, 442-443; 491 NW2d 545 (1992). Even if, assuming arguendo, “pretty
broad” coverage or a description of “most everything” could be considered fraudulent
misrepresentations, plaintiffs’ theory still fails because, as plaintiffs’ expert’s April 1991 letter
establishes, the reliance element is missing.
I would affirm.
/s/ Hilda R. Gage
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