3.8-7 Insurance Agent
Revised to January 1, 2008
Here the plaintiff claims that the
defendant was negligent in that: <list allegations of negligence>.
The plaintiff further alleges that as
a direct and proximate result of the acts and/or omissions of the defendant, the
plaintiff was damaged.
The plaintiff need not prove that the
defendant failed to use the required care, skill, and diligence in all the ways
alleged. It is enough if the plaintiff proves one or more of the allegations of
negligence, provided the plaintiff also proves that such negligence was a legal
cause of (his/her) losses.
The plaintiff claims that in failing
to obtain the insurance coverage requested by the plaintiff, the defendant
insurance agent breached (his/her) obligation to perform under the reasonable
standard of care of an insurance agent. The defendant held (himself/herself)
out to be a skilled insurance agent. As such, the defendant was bound to
exercise the same degree of care as a skilled insurance agent of ordinary
prudence, engaged in the same line of business.
Negligence is the breach of a legal
duty which one person owes to another to care for the safety of that person or
that person's property. To the extent that the defendant was acting as the
plaintiff's agent, the defendant owed the plaintiff a duty to exercise
reasonable skill, care, and diligence in obtaining the insurance, and any
negligence or other breach of duty on the defendant's part that defeats the
insurance which (he/she) undertakes to secure renders (him/her) liable to the
plaintiff for the resulting loss. Where an agent, like the defendant, undertakes
to procure a policy affording protection against a designated risk, the law
imposes upon (him/her) an obligation to perform with reasonable care the duty
(he/she) has assumed, and the defendant may be held liable for loss properly
attributable to (his/her) breach. An agent acts negligently if (he/she) fails
to obtain the insurance requested or fails to notify the client of (his/her)
inability to do so.
As I have already mentioned, the
plaintiff has the burden of proving its negligence claim by a fair preponderance
of the evidence, that is, that the defendant's conduct represented a breach of
the prevailing professional standard of care. Under our law, the plaintiff must
prove this by expert testimony.
More specifically, the plaintiff must establish, through expert testimony, both
what the standard of care is and the allegations that the defendant's conduct
represented a breach of that standard. Additionally, the plaintiff must
establish through expert testimony that the breach of the standard of care was a
legal cause of the injury that the plaintiff claims to have occurred.
Keeping in mind all the requirements I
just discussed, if the plaintiff has failed to prove by a preponderance of the
evidence that the defendant breached the prevailing professional standard of
care, or that said breach was a legal cause of the injuries claimed, or that no
damages resulted therefrom, you must render a verdict for the defendant on this