Many blog posts on agent negligence discuss how difficult it is to prosecute insurance agents for negligence. Unfortunately, many states allow insurance agents to sell insurance without being subject to a standard of care (see my January 25, 2012, blog post). In many states, an agent is held liable for negligence only if the policyholder can show a “special relationship” between the agent and the policyholder.
Fortunately, a few states hold insurance agents to a standard of care. Missouri not only requires that agents have some skill regarding insurance, the knowledge of the insurance agent will be imputed to the insurance company.
Missouri—Liability for Negligent Failure to Procure Insurance
Missouri courts have long held that a broker or agent who undertakes to procure insurance for another for compensation owes a duty of reasonable skill, care, and diligence in obtaining the requested insurance.
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An agent or broker who unjustifiably and through his fault or neglect fails to obtain the requested insurance will be held liable for any damages resulting from such failure.
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Moreover, an agent or broker who undertakes to procure insurance in accordance with instructions impliedly undertakes to give notice to the client in the event of his failure to procure such insurance.
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Failure to provide this notice will render the agent or broker liable to the client for damages, and the client may sue in tort for negligent breach of the agent’s or broker’s duty to timely notify the client that the requested insurance was not obtained.1
If Agent Is On Notice Of A Particular Condition Of The Property, The Knowledge Of The Agent Is Considered To Also Be The Knowledge Of The Insurance Company
Many policies contain provisions which declare that if the condition is present at the property, the condition will negate coverage. An example of this is vacancy. Many property policies contain a vacancy provision which states that if the property is left vacant for 60 days prior to the loss, the policy will provide no coverage for property damage.
The question arises: if the agent knew the property was vacant at the time he/she sold the insurance to the policyholder, can the insurance company still enforce the vacancy provision?
Missouri case law declares that where an agent knows of the vacancy and that the vacancy is likely to continue, the policy vacancy provision is waived.2
Under Missouri law, issuance of an insurance policy constitutes waiver of a known ground of invalidity.3 Consistent with this law, “[a]n insurer is bound by the information acquired by its agent in taking an application, and is presumed to have at least constructive notice of what the agent knows.”4 “Where the agent knows that the insured building is not currently occupied, or is not likely to be occupied within the prescribed time, and issues a policy containing a vacancy provision, the insurer waives compliance with the provision.”5 If the insurance agent knew of the vacancy when the policy was sold, then the insurance company waives the vacancy provision. Most states’ divisions of insurance have determined that an insurer cannot take a policyholder’s money/premiums in exchange for illusory coverage.
The law is charitable enough to assume that an insurance company acts in good faith and intends to execute a valid contract in return for the consideration received; and when the policy contains a condition which renders it voidable at its inception, and this result is known to the insurer, it will be presumed to have intended to waive the condition and to execute a binding contract rather than to have deceived the insured into thinking he was insured when in fact he was not, and to have taken his money without consideration.6
In other words, Missouri law frowns upon taking peoples’ money in return for what an insurer must know is worthless, illusory coverage.
1 Busey Truck Equip., Inc. v. Am. Fam. Mut. Ins. Co., 299 S.W.3d 735, 738 (Mo. App. E.D. 2009)(emphasis added).
2 See Warren Davis Properties V, L.L.C. v. United Fire & Cas. Co., 111 S.W.3d 515, 523 (Mo. Ct. App. 2003) (knowledge of an existing vacancy and continued likelihood of vacancy for the prescribed period may also serve as grounds for waiver of the policy vacancy provision).
3 Warren Davis Properties, at 523 (substantial evidence warranted determination that insurer waived policy exclusion based on vacancy).
6 Bledsoe v. Farm Bureau Mut. Ins. Co., 341 S.W.2d 626, 629, 632 (Mo. App. 1960).