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Wangler v. Lerol11/13/2003
red that policy covered liability arising out of use of towed tool trailer); Farmers Mut. Auto. Ins. Co. v. Bechard, 122 N.W.2d 86, 93 (S.D. 1963) (estoppel was established where agent represented to insured that he was covered regardless of what he was driving or what kind of work he was doing); Dodge v. Aetna Cas. & Sur. Co., 250 A.2d 742, 744 (Vt. 1969) (estoppel was established where insured informed agent he was enlarging his business and asked agent for all insurance necessary for the business); Marlin v. Wetzel County Bd. of Educ., 569 S.E.2d 462, 473 (W.Va. 2002) (estoppel was established where agent prepared certificate of insurance naming Board as additional insured).
[ ] Snortland's ambiguous question to Lerol after their annual insurance reviews, "Now, we're covered aren't we?", is distinguishable from the specific questions and assurances present in these cases. Snortland does not explain in his affidavit exactly what Lerol said to him in response to his question, and does not describe any definite statement or act by Lerol or Farmers Union that would lead Snortland to believe Pine Ridge had employee liability coverage. Viewed in the light most favorable to Wangler, this evidence does not suggest that Lerol engaged in any affirmative action to lead Snortland to an incorrect belief about insurance coverage.
[ ] We conclude the district court did not err in granting summary judgment dismissing Wangler's claim that there is insurance by estoppel in this case.
B.
[ ] Wangler argues the district court erred in dismissing his negligence claim against Lerol and Farmers Union. In explaining the dismissal, the court said:
The Miller-Shugart agreement had released Pine Ridge from any monetary liability for Wangler's bodily injury. Since Pine Ridge could not incur any damages for Wangler's bodily injury based on Lerol's alleged errors and omissions in failing to procure coverage, it no longer had that claim against Lerol. Since Lerol could not be liable, Farmers was no longer responsible on a theory of respondeat superior for Lerol's failure to procure coverage.
The district court's reasoning is similar to the analysis used by some courts in determining whether a Miller-Shugart-type settlement, consisting of a stipulated judgment, covenant not to execute, and assignment of claims, is enforceable against an insurer.
[ ] The approach courts have taken on this issue was summarized in Freeman v. Schmidt Real Estate & Ins., Inc., 755 F.2d 135 (8th Cir. 1985). In Freeman, the insured, Catron, was involved in a vehicle collision with Freeman, and when Freeman sued Catron, Catron's insurance company paid its vehicle liability limits of $50,000 to Freeman. Catron claimed his insurance agent had agreed to obtain a $300,000 automobile policy covering all of Catron's vehicles. Freeman and Catron settled, with Catron confessing judgment for $350,000 and costs, Freeman agreeing not to execute on any amount of the judgment in excess of $50,000, and Catron assigning his cause of action against the insurance agency for failing to obtain the $300,000 policy. Freeman, as assignee, then sued the insurance agency and the insurer, alleging they were negligent and breached an oral contract in failing to obtain the additional $300,000 insurance policy. The magistrate dismissed the action, concluding, because Catron did not become legally obligated to pay by virtue of the covenant not to execute, he would have been entitled to nothing under the policy, and, consequently, Catron suffered no damages. The magistrate concluded Freeman received no enforceable rights from Catron under the assignment.
[ ] The U.S. Court of Appeals for
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