BROWN v. STATE FARM FIRE AND CASUALTY COMPANY

BROWN v. STATE FARM FIRE AND CASUALTY COMPANY
2002 OK CIV APP 107
58 P.3d 217
Case Number: 97485
Decided: 07/22/2002
Mandate Issued: 10/25/2002
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

Tammy BROWN, Plaintiff/Appellant,
v.
STATE FARM FIRE AND CASUALTY COMPANY and State Farm General Insurance Company,Defendants,
and
JJMA Investigations and Consultants and Jody Cooper, Defendants/Appellees.No. 97,485.

July 22, 2002.
Certiorari Denied Oct. 15, 2002.

Ray H. Wilburn, Michael J. Masterson,

MITCHELL, J:

¶ 1 Plaintiff/Appellant, Tammy Brown ("Brown"), seeks review of an order granting summary judgment in favor of Defendants/Appellees, JJMA Investigations and Consultants ("JJMA") and Jody Cooper ("Cooper"). Defendant State Farm Fire and Casualty Company ("State Farm") issued an insurance policy on Brown's Henryetta, Oklahoma home covering loss due to fire. On March 17, 2000, and again on March 18, 2000, fires occurred at the property causing damage alleged to be in excess of $60,000.00. State Farm engaged Defendants/Appellees, JJMA/Cooper, to investigate the cause of the blaze. In their report, JJMA/Cooper concluded, without interviewing either Brown or any of the fire- fighters involved, that there was only one fire, and that it resulted from "the deliberate act of a person or persons." The report also stated that some of the damage to the home that the fire-fighters caused in battling the blaze existed prior to the fire. Based at least in part on this report, which it believed to be accurate, State Farm denied Brown's claim under the policy.

¶ 2 Brown filed suit, alleging bad faith and breach of contract on the part of State Farm, as well as negligent investigation and tortious interference with contractual relations on the part of JJMA/Cooper. Brown settled her claims against State Farm for an undisclosed amount and State Farm is not a party to this appeal.

¶ 3 In granting JJMA/Cooper's motion for summary judgment on Brown's remaining claims, the trial court recognized that while there are no reported cases on point in Oklahoma, a majority of courts in other states have held that an insured cannot maintain a separate tort action for negligence directly against an independent insurance investigator employed by the insurer. Noting the lack of contractual privity between a policy holder and an independent insurance investigator, these out-of-state courts have concluded that an investigator owes no duty of care to an insured with regard to the handling of an investigation and that any liability in negligence exists solely between the insurer and its investigator. Consistent with this approach, the trial court held that Brown could not pursue a negligence claim directly against JJMA/Cooper as a matter of law.

¶ 4 Concerning Brown's claim for tortious interference with contract, the trial court also ruled in favor of JJMA/Cooper, citing "a complete lack of evidence" tending to show that JJMA/Cooper intentionally induced State Farm to deny Brown's insurance claim. Consequently, the trial court held that Brown also failed to make out a prima facie case of tortious interference with contract. This appeal ensued.

¶ 5 The novel question before this Court is what duty, if any, an independent investigator or adjuster retained by an insurance company owes to one who holds an insurance policy issued by said company. Also before this Court is the question of whether an insured may bring a tortious interference with contract action directly against an independent investigator hired by the insurance company and, if so, whether Brown offered [58 P.3d 218] evidence sufficient to defeat summary judgment on her tortious interference claim.I. Negligence

Whereas the Supreme Courts of New Hampshire and Alaska have held that independent insurance adjusters are liable in negligence directly to insureds:

 ¶ 10 The decision of New Hampshire's Supreme Court in

¶ 11 While there is no comparable Oklahoma jurisprudence on point, there are several Supreme Court cases that shed light on this issue. For example, in

¶ 12 Because the action was for negligent breach of contract, the Supreme Court concluded that "the question of whether there is or there is required to be privity ... is not here involved. This being an action in tort, the question ... becomes one of proximate cause."

¶ 13 Having determined in

the formula that should govern the jury in determinating the issue of negligence is, is the conduct of an ordinarily prudent man based upon the dangers he should reasonably foresee TO THE PLAINTIFF OR ONE IN HIS POSITION in view of all the circumstances of the case such as to bring the plaintiff within the orbit of defendant's liability;not the particular hurt that actually befell the plaintiff, but the likelihood of some such harm as he suffered;and if the defendant fails to exercise the care that an ordinarily prudent person should have exercised under the circumstances, he is liable for the injuries plaintiff suffered as a result of such negligence.

¶ 14 In addition to its decisions regarding architects and bond counsel, the Supreme Court has also held that an independent auditor's duty of care in auditing a client's financial statements extends to persons other than the audit client, where those third parties were foreseeable and it was known that they would rely on the agent's professional services. In

¶ 15 Noting that it was "mindful of the enhanced obligations and responsibilities owed to the public by a person who dons the mantle of a professional," the Supreme Court cited with favor the

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

¶ 16 Unlike in

¶ 17 Our analysis of Oklahoma case law is not limited to

[a]n essential element of Lockhart's proof is that a duty of care is owed to her by Loosen. Actionable negligence requires that Loosen's purported failure to inform Mr. Lockhart of her contagion be the direct cause of the plaintiff's injury--i.e., the contraction of herpes. While normally Loosen would owe no duty of care to the wife, a third party, every person is under a duty to exercise due care in using that which he/she controls so as not to injury another. If Loosen knew or should reasonably have known that she had herpes and copulated with Mr. Lockhart during a period when she was infectious, under common-law principles she had a duty to warn him of her contagion. Further, if Loosen knew that Mr. Lockhart was copulating with another person and could identify that person [whether that person was married to Mr. Lockhart or not] it would be reasonably foreseeable to Loosen that silence about her infectious state--i.e. a breach of the duty of care she owed to her sexual partner--could result in the transmittal of herpes to that third person. Under this hypothetical factual scenario, the trial court could determine that it was reasonably foreseeable to Loosen that a natural and probable consequence of her silence would be the transmittal of this highly contagious disease to this plaintiff.

¶ 18 In

one who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person. It is not unreasonable to expect a commercial vendor who sells alcoholic beverages for on the premises consumption to a person he knows or should know from the circumstances is already intoxicated, to foresee the unreasonable risk of harm to others who may be injured by such person's impaired ability to operate an automobile.

¶ 19 We believe the decision of the New Hampshire Supreme Court in

¶ 21 In addition, we see no reason to disturb the trial court's finding as to the "complete lack of evidence submitted by the plaintiff which would present the jury with any questions of fact which would tend to show the investigatory company intentionally induced the insurance company to deny this claim by any predatory activity, self dealing, or other tortious conduct." For purposes of reviewing a summary judgment, this court, like the trial court, makes a de novo review of the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact.

¶ 22 AFFIRMED IN PART;REVERSED IN PART AND REMANDED. [58 P.3d 223]

HANSEN, P.J., and ADAMS, J., concur.