Kathryn Nobbe, Appellant, vs. Wolfgram/Tritt & Associates, Respondent.

Kathryn Nobbe, Appellant, vs. Wolfgram/Tritt & Associates, Respondent. A06-1317, Court of Appeals Unpublished, July 31, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1317

 

Kathryn Nobbe,
Appellant,
 
vs.
 
Wolfgram/Tritt & Associates,
Respondent.

 

Filed July 31, 2007

Affirmed

Stoneburner, Judge

 

Ramsey County District Court

File No. C505000658

 

Benjamin F. Gallagher, Paul V. Kieffer, Gallagher Law Firm, 3252 Rice Street, St. Paul, MN 55126 (for appellant)

 

William C. Weeding, Hagglund Law Offices, 3168 Dean Court, Minneapolis, MN 55416 (for respondent)

 

            Considered and decided by Worke, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges the district court's denial of her motion for a new trial after a jury determined that respondent was not negligent in failing to provide sufficient coverage for appellant's damaged paintings.  Specifically, appellant asserts that the question on the special-verdict form about respondent's negligence misstated the law and that the district court erred by holding, as a matter of law, that no special relationship existed between the parties.  Respondent filed a notice of review challenging the district court's denial of its summary-judgment motion based on a release that appellant gave to other tortfeasors and the district court's denial of its motion for judgment as a matter of law.  Because, under the circumstances of this case, any error in the special-verdict question was harmless, we affirm, and therefore find it unnecessary to reach the issues raised in the notice of review. 

FACTS

 

            Appellant Catherine Nobbe, an artist, stored some of her paintings at the Rossmor Building in St. Paul, (the Rossmor) where she had rented a studio in the early 1990s, before moving her studio to her home in 1994.  Shortly after she rented the Rossmor studio, Nobbe insured her artwork through Don Wolfgram, an agent with respondent Woflgram/Tritt & Associates (the agency).  According to Nobbe, other artists in the building recommended Wolfgram.  Wolfgram came to her studio, looked at her work, and told Nobbe that he had a good policy for her.  Nobbe did not discuss the policy's liability limits with Wolfgram, stating, "I just took his word for it being a good policy."

            In 1993, some of Nobbe's paintings were damaged due to a roof leak in the Rossmor.  Nobbe testified that the loss was covered by the Rossmor's insurance and that she did not make a claim on her policy.  Later, after other testimony established that she had made a claim on her policy, Nobbe testified that she remembered doing so and that she was paid by her own insurer.  Nobbe testified that she was not aware of her policy limits at that time and that she relied on Wolfgram to make sure she was adequately insured.

            In 1994, Nobbe moved her studio to her home but continued to store some paintings at the Rossmor.  Due to Wolfgram's health and semi-retirement, insurance agent Jason Tritt began handling Nobbe's insurance for the agency.  Tritt never met Nobbe.  All of their business was conducted by telephone and mail.

            In late 1998 or early 1999, Nobbe's paintings stored at the Rossmor were damaged by paint from repainting in a room adjacent to her storage area.  Tritt told Nobbe to make her claim to the Rossmor's manager and to the people who were painting.  Tritt testified that at that time, Nobbe told him that she had about $20,000 in paintings stored at the Rossmor and $15,000 at home, and he told her that her coverage was $5,000 on premises and $5,000 off premises.  Nobbe testified that, due to other things going on in her life at that time, she did not pursue a claim against her insurer or anyone else for this loss and repaired the damage herself as best she could.  Tritt testified that Nobbe did submit a claim for damage for that loss to Austin Mutual and that at the same time he tried, but was unsuccessful, in raising the limits of coverage to $15,000 and $20,000 through Austin Mutual or any other company because coverage in that amount was not available. 

            In December 2000, when Nobbe's endorsement for coverage on her home studio was coming up for renewal, Tritt informed Nobbe that a different method of insuring arts and crafts in a home was now available that resulted in coverage up to the limits on the home rather than a special limit set on a personal-property endorsement.  Nobbe's premium for $5,000 of on-premises and off-premises coverage cost about $100.  Tritt wrote to Nobbe that for an additional $49 premium she could obtain more than $100,000 in coverage on her business and personal property at her home.  Tritt attached the policy to his letter, which showed that the coverage for art stored off of the home premises would remain at $5,000.  Nobbe elected to purchase the new coverage for her home studio.

            In April 2001, Nobbe's paintings at the Rossmor were damaged by water and sewage.  She reported the loss to Tritt, who told her that she had coverage in the amount of $5,000.  Nobbe sued the Rossmor.  In June 2003, Nobbe settled with the Rossmor's insurer for $80,000.  The Settlement Agreement and Release released

J.G.M. Agency, Inc, 500 North Robert Limited Partnership, Northwestern National Casualty Company, all other persons and organizations who are or might be liable, and for all released entities, their heirs, executors, administrators, conservators, successors, agents, employees, officers, directors, assigns, trustees, or representative, from liability for all past, present and future common law and statutory claims, demands, or damages of any kind or nature, including without limitation claims for subrogation, contribution or indemnity, relating to an accident, incident or occurrence that occurred on or about April 25, 2001 at or near the Rossmor Building, 500 North Robert Street, St. Paul, Minnesota, 55101.

 

The release states that it is the "full, final and complete release of any and all claims held or allegedly held by [Nobbe] and alleged against the parties released" and that it contains an agreement that Nobbe will "defend and indemnify the parties released" from any "claim for subrogation, contribution or indemnity, arising out of the damages sustained by the releasing parties related to the incident set forth above."

            In February 2004, Nobbe sued the agency for breach of its duty to find insurance to cover the full value of her artwork or refer her to someone who could provide such coverage.  The agency moved for summary judgment, arguing that the general release that Nobbe signed to settle her earlier lawsuit precluded the action against the agency.  The district court denied summary judgment, stating that because the agency was not named in the release, it was not released.

            Before trial, Nobbe stipulated that Tritt provided the maximum amount of coverage that the agency could offer through any of the companies it represented and that her claim was based on Tritt's failure to refer her to other sources of coverage outside of his agency. 

            At trial, Nobbe and Tritt testified about Nobbe's insurance history.  The agency called an expert witness who testified that the standard of care for an insurance agent is to act reasonably, and that:

an agent in the insurance market place, will, if they're acting reasonably, faithfully follow the insured's instructions.  And an insured, if they are acting reasonably, must provide the agent with the information in order to have the agent follow the insured's instructions and obtain the insurance that's requested.

 

The agency's expert testified that Tritt did what a reasonable agent would do, and placed "the best coverage that was available for her in that market place."  He concluded that Tritt "more than met the standard of care." 

            The agency's expert testified about the factors that could establish a special relationship between an agent and an insured that would give rise to a higher standard of care, and he opined that the relationship between Nobbe and Tritt "wasn't close to special circumstances on the facts that [he] reviewed."

            Nobbe called an insurance agent as her expert.  He testified about how he personally would have counseled someone who wanted to insure artwork and testified that there is a market for every type of insurance.  Appellant's expert did not testify about the standard of care or how Tritt's actions related to the standard of care.

            The agency moved for judgment as a matter of law.  The district court's ruling on this motion is not in the record provided to this court, but the motion was apparently denied because the matter was submitted to the jury with an unobjected-to special-verdict form that asked the following questions:

1.         Was [Nobbe] negligent for failing to provide sufficient information and instruction so that [the agency] could provide sufficient insurance for her artwork?

 

2.         Was [the agency through Tritt] negligent in failing to act in good faith and follow instruction in providing sufficient insurance for [Nobbe's] artwork?

 

3.         Using 100% as a percentage, what percentage of the fault do you attribute to [Nobbe] and [the agency]?

 

4.         What sum of money, if any, will fairly and adequately compensate [Nobbe] for the loss of her [artwork] at the Rossmor building?

 

The jury answered "yes" to the first question, answered "no" to the second question, and, despite having found the agency not negligent, attributed 90% of the fault to Nobbe and 10% to the agency.  The jury found damages in the amount of $225,000.  Based on the special verdict, judgment was entered for the agency.

            Nobbe moved for a new trial, arguing that the special-verdict form misstated the law.  The district court found that Nobbe had waived any objection to the special-verdict form and held that, as a matter of law, Nobbe failed to establish a special relationship with the agency.  This appeal followed, and the agency filed a notice of review challenging denial of its motion for summary judgment and its motion for judgment as a matter of law.

D E C I S I O N

 

I.          Special relationship

            Nobbe first argues that the district court erred in ruling that, as a matter of law, no special relationship existed between Nobbe and Tritt.  Nobbe argues at length that the evidence established such a relationship and asserts that the district court should have held that a special relationship existed as a matter of law, or, at least, should have submitted the issue to the jury for a determination of the existence of factors that would support a special relationship.  Nobbe asserts that had the district court found that a special relationship existed, the duty owed by the agency would have been defined differently in the special-verdict form.

            The question of whether an insurance agent owes an expanded duty is a question of law, based on the objective facts.  Gabrielson v. Warnemunde, 443 N.W.2d 540, 543 n.1 (Minn. 1989).  Furthermore, when the standard-of-care issue goes beyond what an insurance agent should do when clearly requested, to the broader issue of affirmative duties where no request has been made, the issue centers around the professional judgment of the agent, requiring that the standard of care be established by expert testimony.  Atwater Creamery Co. v. W. Nat. Mut., 366 N.W.2d 271, 279 (Minn. 1985).

            Nobbe attempts to use the testimony of the agency's expert witness to support her argument that a special relationship existed.  But the agency's expert specifically testified that the facts in this case did not come close to establishing such a relationship.  Because there is no expert testimony in the record indicating that a special relationship existed, the district court did not err in ruling, as a matter of law, that there was no such relationship.

II.        Special-verdict form

            Nobbe argues that the second question on the special-verdict form misstated the law.[1]  An appellate court "will not set aside a jury verdict on an appeal from a district court's denial of a motion for a new trial unless it is manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict."  Navarre v. S. Washington County Schs., 652 N.W.2d 9, 21 (Minn. 2002) (quotations omitted).  "The trial court has broad discretion both in writing jury instructions and in framing special verdict questions."  Dang v. St. Paul Ramsey Med. Ctr., Inc., 490 N.W.2d 653, 658 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992).  "Absent an abuse of discretion, this court will not reverse a trial court's decision as to a special verdict's form."  Kronebusch v. MVBA Harvestore Sys., 488 N.W.2d 490, 496 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).

            "[A] party who fails to object to a special verdict form before its submission to the jury, waives any later objection."  H. Window Co. v. Cascade Wood Prods., Inc., 596 N.W.2d 271, 274 (Minn. App. 1999), review denied (Minn. Aug. 17, 1999).  But an appellate court may review a special-verdict form "to determine whether there is an error of fundamental law or controlling principle."  Estate of Hartz v. Nelson,437 N.W.2d 749, 752 (Minn. App. 1989), review denied (Minn. July 12, 1989).  We review a special-verdict form to discern whether the form prejudiced a party.  Boubelik v. Liberty State Bank, 527 N.W.2d 589, 591 (Minn. App. 1995), rev'd on other grounds, 553 N.W.2d 393, 403 (Minn. 1996), superseded by statute 1997 Minn. Laws ch. 157, § 60, at 996.

            In this case, the district court crafted question #2 based on Gabrielson, in which the supreme court stated that: "An insurance agent's duty is ordinarily limited to the duties imposed in any agency relationship, to act in good faith and follow instructions."  443 N.W.2d at 543.  Nobbe argues that Gabrielson "clearly instructs that [the agency] was negligent if it failed to act in good faith OR failed to follow instructions."  She asserts that because she did not contend that Tritt acted in bad faith, the jury in this case would never have found the agency negligent even if it believed that Tritt failed to follow instructions.

            But in her pretrial stipulation, Nobbe stipulated that her case against the agency is based on her claim that the agency failed "to refer for proper coverage."  At trial, Nobbe never asserted that she had instructed Tritt to refer her to agencies beyond those the agency represented.  Nobbe's case turned on her ability to establish an expanded duty based on a special relationship with Tritt.  Given the circumstances of this case, we conclude that even if the special-verdict question did not correctly state the law, Nobbe was not prejudiced by the form of the question.  Our conclusion is bolstered by the jury's further finding that Nobbe was 90% at fault in the failure to have adequate coverage on her art work, a finding that would preclude her recovery against the agency even if question #2 had been answered "yes."

III.       Summary judgment and judgment as a matter of law

 

            The agency has raised, by notice of review, a challenge to the district court's denial of its motion for summary judgment based on the release Nobbe signed when she settled her lawsuit against the Rossmor.  The agency also challenges the denial of its motion for judgment as a matter of law based on her failure to present expert testimony on the issue of the existence of a special relationship.  Because we are affirming the verdict, we do not reach these issues, except to note that, consistent with our discussion above regarding the lack of expert testimony, the agency's argument for judgment as a matter of law has merit.

            Affirmed.

[1] On appeal, Nobbe does not argue that the jury instructions misstated the law or that the special-verdict question was used by the agency to misstate the law in closing arguments.  The record presented to this court does not contain the transcripts of the closing arguments or a copy of the jury instructions.