ZAREMBA EQUIPMENT INC V HARCO NATIONAL INSURANCE COAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
ZAREMBA EQUIPMENT, INC.,
July 31, 2008
HARCO NATIONAL INSURANCE COMPANY
and PATRICK MUSALL,
Otsego Circuit Court
LC No. 04-010930-CK
Advance Sheets Version
Before: O’Connell, P.J., and Borrello and Gleicher, JJ.
O’CONNELL, P.J. (concurring in part and dissenting in part).
I concur with the majority opinion in all respects except for its determination that an
expert witness was not required for the negligence claim. I do not disagree with the conclusion
that whether expert testimony is required must be determined on a case-by-case basis; I disagree
with the conclusion that it was not necessary in this case.
To the extent that the question before a jury is whether the insurance agent did not
provide the type of coverage requested, I agree that no expert testimony is necessary. But, to the
extent that the issues go beyond such simple questions, expert testimony is required. See
Humiston Grain Co v Rowley Interstate Transportation Co, Inc, 512 NW2d 573, 576 (Iowa,
1994) (“[W]here an insurance agent is alleged to have breached a professional duty, if the error
or omission extends beyond the agent’s mere failure to procure coverage requested and paid for
by the client, proof of the standard of care applicable to the circumstances must be established by
expert testimony.”); Atwater Creamery Co v Western Nat’l Mut Ins Co, 366 NW2d 271, 279
(Minn, 1985) (holding that expert testimony was required to establish standard of care because
“the issue center[ed] around the professional judgment of the agent in the absence of requests for
action”); Todd v Malafronte, 3 Conn App 16, 19; 484 A2d 463 (1984) (“Insofar as the sale of
insurance requires specialized knowledge, we agree that this case differs from the ordinary
negligence action since matters within that specialized body of knowledge are crucial to the
determination of the issues raised.”).
In the present case, there were significant questions that the jury needed to answer by the
that fell far outside a layperson’s general knowledge. Was it reasonable or standard practice for
an agent to use the Marshall & Swift calculation? Do/should agents generally voluntarily elect
to perform the calculation; should they? Do/should agents generally explain to the insured that
such a calculation is not an appraisal value; should they? Does/should an agent generally
recommend that an insured seek an independent appraisal? Given that terms in insurance
contracts often have meanings separate and apart from their common meaning, do agents have a
responsibility to explain what various terms, such as “replacement value,” mean? To what extent
should agents explain the terms and limitations of a policy to an insured? How often? These are
matters of specialized knowledge that require an expert to help the jury with its fact-finding.
Like the plaintiff in Nofar v Eikenberry, unpublished memorandum opinion of the Court of
Appeals, issued October 30, 1998 (Docket No. 197231), p 2, plaintiff “failed to present any
evidence as to the standard of care applicable to insurance professionals.” Reversal is required.
Because we are remanding this case to the trial court for a new trial on the negligence
claim, albeit for a different reason, I concur in the result.1
/s/ Peter D. O’Connell
I concur with the majority opinion that the settlement letters are not admissible on retrial.