No means no: history of refusing excess coverage informs whether insured would have purchased excess coverage

A broker’s negligence claim was dismissed because the broker was not required to recommend excess UMP coverage which the insured had consistently declined.

Insurance law – Automobile insurance – Underinsured motorist; Agents and brokers – Negligent misrepresentation

Carriere de Davide v. Westland Insurance Group Ltd., [2024] B.C.J. No. 735, British Columbia Supreme Court, April 25, 2024, J. Brongers J.

The plaintiff claimed against his autoplan broker after suffering injuries and losses in a motor vehicle accident which exceeded his basic underinsured motorist protection (UMP) coverage. The action was dismissed on both standard of care and causation. The broker fulfilled its obligation to provide the plaintiff with information about the availability of excess UMP coverage. In finding that the broker met the standard of care, the court considered the plaintiff’s history as a longstanding customer of the broker who had been offered and declined excess UMP on multiple occasions. The broker was not required to divine from the customer’s age, residence, and willingness to purchase other insurance coverage that excess UMP might be of particular interest to him, and to then actively recommend that he buy it.

The court also dismissed the claim for a lack of causation flowing from the alleged negligence. Although the plaintiff testified that he would have purchased excess UMP if the broker had offered and explained it to him, the court treated this evidence with caution. Prior to the accident, the plaintiff was a capable and independent-minded person who made significant life decisions on his own. He had been buying autoplan policies for a decade before the accident, consistently declining excess UMP each time. Applying a modified objective test, the court was not persuaded that a reasonable person in the plaintiff’s circumstances would have deviated from a longstanding practice of settling for basic UMP if only an insurance broker had recommended that they purchase excess UMP.

This case was digested by Joe Antifaev and edited by Steven W. Abramson of Harper Grey LLP and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please feel free to contact them directly at [email protected] or [email protected].