ESPINOSA, Judge:
¶ 1 In this insurance agent malpractice action, appellants Jessyka Murray and her parents Robert and Marcia Murray (the Murrays) seek the reversal of the trial court's order granting a new trial on all issues and the remand of the matter for a new trial on damages only. They also petition this court to reverse certain partial summary judgments entered by the court and its ruling on their motion made pursuant to Rule 49(c), Ariz. R. Civ. P. The Murrays lastly request reversal of the trial court's interpretation of their umbrella policy. Appellees Randy Jones, the Randy Jones Insurance Agency, Farmers Insurance Company of Arizona (Farmers) and Foremost Insurance Company (Foremost) cross-appeal, contending Jones's compliance with the requirements of Arizona's Uninsured/Underinsured Motorist Act precludes the Murrays' claims. For the following reasons, we affirm in part and reverse in part.
¶ 2 "We view the facts in the light most favorable to upholding the trial court's ruling." Hammoudeh v. Jada, 222 Ariz. 570, ¶ 2, 218 P.3d 1027, 1028 (App.2009). Jones and the Randy Jones Insurance Agency were authorized by Farmers to offer and sell insurance coverage to Jones's clients through Farmers. For twenty years, Robert and Marcia
¶ 3 Robert and Marcia testified that when they discussed UM/UIM coverage with Jones, he advised them they did not need increased UM/UIM limits because their family had health insurance through Robert's employer. Jones, however, denied telling the Murrays "that if they had health insurance they d[id]n't need to buy any UM/UIM or as much UM/UIM insurance."
¶ 4 In November 2010, Jessyka, then seventeen, was a passenger in a two-vehicle accident that involved both an uninsured motorist and an underinsured motorist. She sustained a traumatic brain injury that permanently incapacitated her, and Robert and Marcia were appointed her guardians.
¶ 5 In August 2012, Robert and Marcia, individually, and as guardians of Jessyka, filed a complaint against Jones, the Randy Jones Insurance Agency, Farmers, and Foremost alleging professional negligence, consumer fraud under A.R.S. § 44-1522 and insurance fraud under A.R.S. § 20-443. Farmers and Foremost were included as defendants based on vicarious liability for Jones.
¶ 6 In July 2013, Jones moved for summary judgment on all claims, pointing out that the Murrays had signed UM/UIM Selection Forms for each of their policies and arguing their selection was "valid for all insureds" under A.R.S. § 20-259.01. The trial court denied Jones's motion, finding that his compliance with the statute did not insulate him from liability.
¶ 7 After a four-day trial, the jury returned a seven to one verdict of $180,000 in favor of the Murrays. Before the jury was discharged, the Murrays orally moved to have the jury deliberate further on grounds the verdict was non-responsive to the submitted issues, citing Rule 49(c), Ariz. R. Civ. P. After briefing and argument, the trial court concluded that Rule 49(c) did not apply, accepted the verdict and discharged the jury.
¶ 8 The Murrays later filed a motion for additur or new trial on damages that the trial court denied. It ultimately, however, vacated the judgment and ordered a new trial on all issues. The Murrays appealed and Jones cross-appealed from the denial of his motion for summary judgment. This court has jurisdiction pursuant to A.R.S. §§ 12-120.21(A) and 12-2101(A)(1), (5)(a).
¶ 9 The Murrays first argue the trial court abused its discretion by denying their motion filed pursuant to Rule 49(c). That rule provides that if a "verdict is not responsive to the issue submitted to the jury, the court shall call the jurors' attention thereto, and send them back for further deliberation." We review the application of court rules de novo. Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, ¶ 22, 189 P.3d 1114, 1122 (App.2008).
¶ 10 A party who believes a jury verdict is inconsistent, defective, or nonresponsive, must move, before the jury is excused, for resubmission of the case to the jury pursuant to Rule 49(c). See Trustmark Ins. Co. v. Bank One, Ariz., NA, 202 Ariz. 535, ¶ 39, 48 P.3d 485, 493 (App.2002). An objection based on Rule 49(c) provides an opportunity to correct error with "minimal effort and expense." Id. ¶ 40. A court will
¶ 11 Here, the trial court had instructed the jury that if it found Jones was at fault, it "must then determine how much additional UM/UIM coverage the Murrays would have purchased up to $1,890,000."
¶ 12 After the Murrays requested that the jury deliberate further pursuant to Rule 49(c), the trial court noted that the parties had agreed to "le[ave] the verdict form open" as to the amount of additional UM/UIM coverage that might have been purchased. It posed the question of how it would instruct the jury post-verdict, noting the difficulty of resubmitting the instruction without telling the jury, in essence, "pay attention to the evidence and redecide the case."
¶ 13 The jury's verdict was within the instructed range, the error was not one of law, and we agree with the trial court's assessment that any attempt to direct the jury to
¶ 14 The Murrays next contend the trial court abused its discretion when, after denying their motion for a new trial on damages, it ordered a new trial on all issues, rather than only damages. The court ordered the new trial after finding:
¶ 15 "The trial court's right to order a new trial . . . is completely discretionary." Martinez v. Schneider Enters., Inc., 178 Ariz. 346, 349, 873 P.2d 684, 687 (App. 1994). The decision to grant a new trial on all issues is likewise discretionary and routinely upheld. See Englert v. Carondelet Health Network, 199 Ariz. 21, ¶ 18, 13 P.3d 763, 770 (App.2000) (noting absence of Arizona cases holding trial court had abused discretion by ordering new trial on all issues). "We review an order granting a new trial under a more liberal standard than an order denying one, and we will not overturn the order absent a clear abuse of discretion." State Farm Fire & Cas. Co. v. Brown, 183 Ariz. 518, 521, 905 P.2d 527, 530 (App.1995); see also Englert, 199 Ariz. 21, ¶ 14, 13 P.3d at 769 (abuse of discretion is "`discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons'"), quoting Torres v. N. Am. Van Lines, Inc., 135 Ariz. 35, 40, 658 P.2d 835, 840 (App.1982).
¶ 16 The Murrays do not contest the trial court's grant of a new trial, but contend it should be limited to damages only. Pursuant to Rule 59(h), Ariz. R. Civ. P.:
But, "[p]artial new trials are not recommended because they create much opportunity for confusion and injustice." Styles v. Ceranski, 185 Ariz. 448, 451, 916 P.2d 1164, 1167 (App.1996). "A partial trial should be granted when the issues are not inextricably intertwined and can be separated without prejudice to the parties." Englert, 199 Ariz. 21, ¶ 15, 13 P.3d at 769; see also Tovrea Equip. Co. v. Gobby, 72 Ariz. 38, 43, 230 P.2d 512, 516 (1951) ("`It is only when the reason for setting aside the verdict relates solely to damages disassociated from every other contributing, related or vitiating cause that the new trial shall be limited to the question of the amount of damages alone.'"), quoting S. Pac. Co. v. Gastelum, 36 Ariz. 106, 126, 283 P. 719, 726 (1929). The court should resolve any doubt in favor of a new trial on all issues. Styles, 185 Ariz. at 451, 916 P.2d at 1167.
¶ 17 As its findings made clear, the trial court determined the jury's verdict on damages had been affected by the jury's findings on liability. The court found, first, that the verdict was a compromise verdict, that is, a verdict in which "some of the jurors have conceded liability against their judgment, and some have reduced their estimate of the damages in order to secure an agreement of liability with their fellow jurors[.]'" State v. Watson, 7 Ariz.App. 81, 88, 436 P.2d 175, 182 (1967), quoting Gastelum, 36 Ariz. at 125, 283 P. at 725. In such cases, a new trial confined to the single issue of damages would
¶ 18 Here, liability was contested and the verdict was approximately ten percent of the amount of damages sought by the Murrays, with no plausible rationale for the amount of the award.
¶ 19 The trial court alternatively found the verdict was a result of sympathy or prejudice. When the Murrays disputed that finding, the court stated:
The court concluded, "[s]o I am having a hard time explaining the verdict. Everybody [i]s. So I will give everybody the opportunity to go get a new verdict."
¶ 20 On appeal, the Murrays dispute the trial court's finding that the verdict was the result of passion and prejudice. They note that Jessyka was only allowed to be present at trial during voir dire and that the court excluded her medical records and expenses, pre-accident photographs, and evidence of her on-going therapy requirements. They also point out the parties had stipulated that Jessyka's accident-related damages exceeded the maximum UM/UIM coverage her parents could have purchased, two million dollars,
¶ 21 The Murrays assert they "did nothing to evoke sympathy" and insist the new trial should be limited to damages, citing Saide, 135 Ariz. at 79, 659 P.2d at 38. There, our supreme court ordered a new trial limited to the issue of damages, reasoning that "the verdict was not disproportionate to the proven damages, and we cannot say that the verdict represented a compromise or was the result of passion or prejudice." Id. at 80, 659 P.2d at 39. But the Murrays have identified no factual parallel between the jury's verdict in Saide and the verdict here. And unlike in Saide, the trial court specifically found the verdict was "likely the result of sympathy, and/or prejudice," stating that the Murrays did not present a strong liability case "from the `expert' point of view," but that they were "about [the] most sympathetic a set of plaintiffs as [it] ha[s] had in [its] courtroom in [its] 14 years."
¶ 22 As we have observed, the trial court is in the best position to evaluate the effect of the evidence on the jury. See Englert, 199 Ariz. 21, ¶ 18, 13 P.3d at 770; cf. Cal X-Tra v. W.V.S.V. Holdings, L.L.C., 229 Ariz. 377, ¶ 92, 276 P.3d 11, 39 (App.2012) (trial judge has "unique opportunity to hear the testimony and argument, observe its effect on the jury, and determine through his observations that the trial had been unfairly compromised; in contrast, we have only a cold record, which does not convey voice emphasis or inflection, or allow us to observe the jury and its reactions"). Given the trial court's stated observations and the jury's inexplicable verdict, we are unable to rule out a verdict based on sympathy. Consequently, we cannot say the court abused its discretion by refusing to limit the new trial to the amount of damages.
¶ 23 The Murrays have cited as supplemental authority, Tarron v. Bowen Mach. & Fabricating, Inc., 225 Ariz. 147, 235 P.3d 1030 (2010) and State v. Fischer, 238 Ariz. 309, 360 P.3d 105 (App.2015), to support their contention that the trial court erred by refusing to limit the scope of the new trial to damages only. These cases, however, do not change our analysis. In Tarron, our supreme court remanded for a limited new trial, leaving the jury's award of damages to the plaintiff and certain fault allocations undisturbed. However, the posture of that case does not resemble the one before us—the fault allocations excluded from the new trial were not contested and, like the jury's award of damages, were unrelated to the issue to be resolved at the new trial.
¶ 24 Fischer, in contrast, is a criminal case in which the state appealed the trial court's grant of the defendant's motion for new trial based on the weight of the evidence. 238 Ariz. 309, ¶¶ 1, 6, 360 P.3d at 107-08. This court pointed out "[a] judge may not set aside a verdict `merely because, if he had acted as trier of fact, he would have reached a different result,' nor may he substitute his own judgment for that of the jury" and concluded the trial court had made factual findings not supported by the record and failed to consider all the evidence in reaching its conclusions. Id. ¶¶ 19, 29, quoting Cano v. Neill, 12 Ariz.App. 562, 569, 473 P.2d 487, 493 (1970).
¶ 25 Neither Tarron nor Fischer address the situation here, where the trial court made a supported finding that the jury's verdict intertwined issues of liability and damages and the court consequently ordered a new trial on all issues. The court's ruling did not
¶ 26 Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(a). We review de novo a trial court's grant of summary judgment and view the evidence and all reasonable inferences therefrom in the light most favorable to the party opposing the motion. Felipe v. Theme Tech Corp., 235 Ariz. 520, ¶ 31, 334 P.3d 210, 218 (App.2014).
¶ 27 The Murrays contend the trial court erred in granting summary judgment on their claims for emotional distress damages. They assert that "Jones' conduct deprived [them] of UM/UIM benefits that would have allowed them to meet many of Jessyka's post-accident needs," including extending her hospitalization, increasing her number of therapies, allowing the family residence to be remodeled to better accommodate her needs, and providing her with a device to allow her to communicate.
¶ 28 In its ruling, the trial court "acknowledge[d] the real emotional distress of the plaintiffs in this case" but found "under current Arizona case law, [Jones's] negligence did not directly affect or burden a personal right or interest of [the Murrays]," citing Kaufman v. Langhofer, 223 Ariz. 249, 222 P.3d 272 (App.2009). It noted that the Kaufman court had reviewed Arizona case law on emotional distress damages and that such damages were allowed only where the tortious act directly harmed a plaintiff and burdened a personal, as opposed to an economic interest. The trial court further cited Reed v. Mitchell & Timbanard, P.C., 183 Ariz. 313, 903 P.2d 621 (App.1995), for the proposition that "consequential damages for emotional distress are not recoverable when the plaintiff's direct damages are pecuniary." The trial court concluded:
¶ 29 As the trial court correctly observed, in Arizona, "a party may recover damages for emotional distress arising out of the tortious loss of property" where "the tortious act directly harmed the plaintiff and affected or burdened a personal, as opposed to an economic or other interest belonging to the plaintiff." Kaufman, 223 Ariz. 249, ¶ 15, 222 P.3d at 276. Examples of personal damages are the loss of liberty or damage to a family relationship. Reed, 183 Ariz. at 318-19, 903 P.2d at 626-27. In applying this principle, we have held that plaintiffs could seek emotional damages for the destruction of their fertilized human eggs, see Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, ¶¶ 73-75, 121 P.3d 1256, 1273 (App.2005), and for suffering, as a tenant, the annoyance and discomfort of living in inadequate housing, see Thomas v. Goudreault, 163 Ariz. 159, 167, 786 P.2d 1010, 1018 (App.1989).
¶ 30 In contrast, we have precluded the recovery of emotional distress damages where the plaintiff's interest was determined to be "purely economic." Reed, 183 Ariz. at
¶ 31 The Murrays contend that the negligent failure to sell uninsured and underinsured coverage implicates the insured's well-being and is particularly likely to cause serious emotional harm. Albeit in another context, our supreme court has recognized that an insured's relationship with an insurer is not a strictly financial one. See Taylor v. State Farm Mut. Auto. Ins. Co., 185 Ariz. 174, 176, 913 P.2d 1092, 1094 (1996). The court noted, "[t]he insured receives intangible benefits from the relationship, such as peace of mind." Id. And in Rawlings v. Apodaca, the court "recognize[d] that in buying insurance an insured usually does not seek to realize a commercial advantage but, instead, seeks protection and security from economic catastrophe." 151 Ariz. 149, 154, 726 P.2d 565, 570 (1986). The insured, the court concluded, "seeks peace of mind from the fears that accompany such exposure." Id. We accept therefore for our analysis that an insurer-insured relationship is not merely a financial one but includes an expectation of security and protection before and at the time of a catastrophe.
¶ 32 In their complaint, the Murrays stated they had "relied on and trusted Jones in determining what insurance coverage to obtain and what limits would provide them complete protection." Marcia Murray averred there were "many other examples where Jessyka, [Robert] and I have suffered mental distress because Jessyka did not have access to UM/UIM benefits that were equal to our auto liability limits, and as a result she has not been able to secure needed care, therapies and equipment." And at trial, after being asked what he had wanted when meeting with Jones about the Murrays' insurance coverage prior to the accident, Robert Murray responded that he had wanted coverage, noting: "I mean, I have a family that you have to take care of. That's my job. And so you want the best to cover your family." He also testified that after the accident he "ha[d] to go to the community to try and raise funds to provide some of the services that [he] couldn't pay for because [he] didn't have UM and UIM coverage."
¶ 33 As noted above, our review of the trial court's ruling is de novo and we view the evidence and all reasonable inferences in the light most favorable to the Murrays. Felipe, 235 Ariz. 520, ¶ 31, 334 P.3d at 218. From the evidence provided and reasonable inferences therefrom, a factfinder could conclude the Murrays suffered direct emotional distress from Jones's negligence that was non-economic, that is, the loss of their reasonable expectations and peace of mind that they and their children were insured against economic catastrophe. We therefore conclude this is the appropriate case for the "evolution" of the law contemplated by the trial court. Accordingly, we reverse the court's ruling and remand this issue for further proceedings on the Murrays' emotional distress damages claims.
¶ 34 The Murrays next contend the trial court erred in granting summary judgment on Jessyka's claims under Arizona's Consumer Fraud Act (CFA), A.R.S. § 44-1522, and the insurance fraud statute, A.R.S. §§ 20-443 and 443.01, because "as a resident of the Murray household, Jessyka was both an insured and an express third-party beneficiary of the Murrays' motor vehicle and umbrella
The court distinguished case law from other states cited by the Murrays where third-party beneficiaries were found to have standing to assert consumer fraud claims, noting differences between Arizona's consumer fraud statute and those of the other states,
¶ 35 Arizona's Consumer Fraud Act (CFA) provides:
§ 44-1522(A). "The purpose of the [CFA] is to provide injured consumers with a remedy to counteract the disproportionate bargaining power often present in consumer transactions." Waste Mfg. & Leasing Corp. v. Hambicki, 183 Ariz. 84, 88, 900 P.2d 1220, 1224 (App.1995). Our supreme court has recognized an implied private cause of action under the act. See Sellinger v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 576, 521 P.2d 1119, 1122 (1974).
¶ 36 "It is well-settled that a person or entity need not intend to deceive to violate the statute." Powers v. Guar. RV, Inc., 229 Ariz. 555, ¶ 17, 278 P.3d 333, 338 (App.2012). Nor does the statute require that the defendant know that the misrepresentations are false. Id. "To succeed on a claim of consumer fraud, a plaintiff must show a false promise or misrepresentation made in connection with the sale or advertisement of merchandise and consequent and proximate injury resulting from the promise." Kuehn v. Stanley, 208 Ariz. 124, ¶ 16, 91 P.3d 346, 351 (App.2004).
¶ 37 Jones asserts that "a viable consumer fraud claim requires that the claimant be a party to the sale in which the misrepresentation took place." In support he cites Sullivan v. Pulte Home Corp., 231 Ariz. 53, 290 P.3d 446 (App.2012), which held that subsequent homeowners did not have a viable private cause of action under the CFA against the homebuilder "[b]ecause a subsequent purchaser is not a party to the original transaction and therefore would not encounter . . . `disproportionate bargaining power.'" Id. ¶ 38 (noting plaintiff homeowners had no transaction with homebuilder), vacated in part on other grounds, 232 Ariz. 344, 306 P.3d 1 (2013). Sullivan, however, did not involve a third-party beneficiary of the transaction.
¶ 38 Because there is no published Arizona precedent involving a claim under the CFA by a third-party beneficiary, we examine the language of the statute. If the language is clear and unambiguous, we apply it without resorting to other methods of statutory interpretation. Haag v. Steinle, 227 Ariz. 212, ¶ 9, 255 P.3d 1016, 1018 (App.2011). But if multiple plausible interpretations exist, we then consider the statute's context, language, subject matter and historical background and its effects, consequences, and spirit and purpose. Id.
¶ 39 We have noted that "[t]he terms of th[e] [CFA] are obviously quite broad and
¶ 40 Although Jones would have us limit a private CFA cause of action to the parties to the transaction involving the misrepresentation, the broad language of the act would appear only to require that a consumer have a relationship to the transaction. See § 44-1522(A) (statute pertains to misrepresentations or deceptive acts made "in connection with the sale or advertisement" of good or service). The CFA requires that a misrepresentation or deceptive act be made with intent that "others" rely on it, without specifying the relationship of those "others" to the transaction. Id. Further, the language "whether or not any person has in fact been misled, deceived or damaged thereby," suggests that third parties are not excluded. Id.
¶ 41 The Murrays cite cases from Washington, the District of Columbia Circuit, and Texas to support their argument that as a third-party beneficiary Jessyka should be afforded standing under Arizona's CFA. See Escalante v. Sentry Ins. Co., 49 Wn.App. 375, 743 P.2d 832, 834, 839-40 (1987) (vehicle passenger had standing under Washington's CFA because she was "an insured and a third party beneficiary [of the driver's UIM coverage] by virtue of the policy coverage for passengers"); Athridge v. Aetna Cas. & Sur. Co., 351 F.3d 1166, 1176 (D.C.Cir.2003) (child of insureds and "person potentially insured by" policy is a consumer under act "even if he was not the party who purchased the insurance"); Mendoza v. Am. Nat. Ins. Co., 932 S.W.2d 605, 608-09 (Tex.App.1996) (beneficiary of life insurance policy has standing under consumer fraud act). Although Jones points out that Washington's consumer fraud act is more broadly worded than Arizona's, see Wash. Rev. Code § 19.86.010(2) (act applies to "the sale of assets and services, and any commerce directly or indirectly affecting the people of the state of Washington"), he differentiates the D.C. Circuit and Texas cases because they expressly include as a "consumer" a recipient or beneficiary of a good or service. See D.C. Code § 28-3901 (2013) (defining "consumer" as person who "would purchase . . . or receive consumer goods or services"); Bohls v. Oakes, 75 S.W.3d 473, 479 (Tex.App.2002) ("A third party beneficiary may qualify as a consumer of goods or services, as long as the transaction was specifically required by or intended to benefit the third party and the good or service was rendered to benefit the third party."). Because "consumers" are the named subject of the Act, and because the plain meaning of that term accords with viewing a consumer as a recipient of goods or services, see Merriam-Webster Online Dictionary, 2015, http://www.merriam-webster.com/dictionary/consumer (10 Dec. 2015), ("one that consumes" or that "utilizes economic goods"), we do not disregard the precedent cited by the Murrays.
¶ 42 The Murrays further point out, pursuant to Ariz. R. Sup. Ct. 111(c), (d), a recent unpublished decision by the Arizona Federal District Court denying an insurance company's motion to dismiss a life insurance beneficiary's CFA claim. In Moreno v. Minn. Life Ins. Co., No. CV 14-2022-TUC-FRZ, 2015 WL 1457419, *6 (D.Ariz. Mar. 30, 2015), the
Id. at *7 (citations omitted), quoting Gould v. Mutual Life Ins. Co. of N.Y., 37 Wn.App. 756, 683 P.2d 207, 208 (1984) (first alteration added, second alteration in Moreno). Although the decision is neither published nor an appellate opinion, it is well-reasoned under its facts and has persuasive value. See Ariz. R. Sup. Ct. 111(c), (d).
¶ 43 In view of the broad language and remedial purpose of the CFA, Jessyka's status as a third-party beneficiary to the transaction, and the persuasive reasoning of other courts that have addressed this or similar issues, we conclude she has standing to bring a claim under the statute. See Athridge, 351 F.3d at 1176 (third-party beneficiary could properly bring CFA claim). We therefore reverse the trial court's grant of summary judgment and remand this issue for further proceedings.
¶ 44 The Murrays next argue the trial court erred when it ruled that their $1,000,000 umbrella policy
¶ 45 Jones responds that the $1,000,000 maximum combined UM/UIM benefit was clearly stated in the policy endorsement and lawful under the statute. He notes that had the Murrays purchased UM/UIM coverage on their umbrella policy, the terms would have been stated in policy endorsement Form E011 3d. ed.,
Jones maintains that under the endorsement, "the Murrays would have been limited to a single limit of $1,000,000, `regardless of the number of autos . . . claims made or vehicles
¶ 46 Pursuant to § 20-259.01, when an insured purchases a primary automobile policy, the insurer must offer both UM and UIM motorist coverage in limits "not less than the liability limits for bodily injury," and the coverages "are separate and distinct and apply to different accident situations." As the Murrays note, courts have invalidated limit-of-liability provisions designed to reduce or eliminate UM/UIM coverage by setoffs or reductions when the insured has not been fully compensated.
¶ 47 Our supreme court "h[as] long held that exceptions to coverage not permitted by the [UMA] are void." Taylor v. Travelers Indem. Co. of Am., 198 Ariz. 310, 315, 9 P.3d 1049, 1054 (2000). The statute, however, expressly exempts insurers from offering UM or UIM coverage under an umbrella policy. See § 20-259.01(L). Subsection L specifies: "An insurer is not required to offer, provide or make available coverage conforming to this section [UM and UIM coverage] in connection with any . . . umbrella policy. . . ." Umbrella policies therefore are expressly excluded from the requirements of § 20-259.01 and the Murrays have not provided any authority indicating that principles derived from primary auto policy cases regarding UM/UIM setoffs or reductions apply equally to umbrella policies.
¶ 48 In their opening brief, the Murrays make a passing assertion that, even if permitted by statute, the umbrella policy endorsement did not include "an unambiguous offset provision," "expressly reducing the limits of one coverage by the amount paid under the second coverage." Only in their reply brief do they develop that argument, and at oral argument raised an additional one selectively focusing on wording in the endorsement that the umbrella policy would provide UM "and/or" UIM "coverage(s)."
¶ 49 The Murrays further assert that, as insureds, they could collect the limits of separate UM/UIM coverages "[a]bsent a valid limiting provision," and contend that "Farmers' endorsement does not limit collection of the entire limits of different coverages." But they do not cite any authority requiring or inferring such a result and the cases they cite for an insured's recovery "under both coverages" do not involve umbrella policies. See Am. Family Mut. Ins. Co. v. Sharp, 229 Ariz. 487, ¶ 17, 277 P.3d 192, 197 (2012); GEICO Gen. Ins. Co. v. Tucker, 71 F.Supp.3d 985, 988 (D.Ariz.2014). In view of the plain language of the umbrella policy endorsement and the dearth of support for
¶ 50 Jones argues on cross-appeal that the trial court erred by denying him summary judgment on all claims, based on his compliance with Arizona's UM/UIM Act, § 20-259.01. In his summary judgment motion, Jones pointed out that the Murrays had repeatedly declined to increase their UM/UIM limits to match their liability limits and did so on forms approved by the DOI, as required by § 20-259.01. He noted that the forms explained the purpose of the coverage and provided the insureds the option to purchase UM/UIM coverage up to their liability limits. He identified one such form, a 1998 form initialed by Marcia Murray, describing UM/UIM coverage, in part, as follows:
Based on his compliance with § 20-259.01, Jones argued he had met his duty to the Murrays as a matter of law. The trial court denied Jones's motion, finding that the protection afforded to insurers under § 20-259.01 does not insulate an agent "giving . . . bad advice." After the conclusion of the Murrays' case and again following the verdict, Jones moved for judgment as a matter of law on the same grounds, but both motions were denied.
¶ 51 Although an order denying summary judgment is generally not appealable, to avoid piecemeal litigation we may consider the merits of the motion and direct entry of summary judgment in Jones's favor if he is "entitled to that as a matter of law and there are no genuine issues of material fact precluding it." Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 7, 965 P.2d 47, 50 (App.1998); see also State Farm Mut. Auto. Ins. Co. v. Peaton, 168 Ariz. 184, 194, 812 P.2d 1002, 1012 (App.1990). Further, Jones preserved the issue for appeal by reasserting it in a motion for judgment as a matter of law. See John C. Lincoln Hosp. & Health Corp. v. Maricopa County, 208 Ariz. 532, ¶ 19, 96 P.3d 530, 537 (App.2004) (party seeking to preserve summary-judgment issue for appeal, "with a possible exception for a purely legal issue, must do so by reasserting it in a Rule 50 motion for judgment as a matter of law or other post-trial motion").
¶ 52 The UMA requires insurers to offer UM and UIM coverage to their insureds and "creates a `safe harbor' if the insured signs a [Department of Insurance (DOI)]-approved form rejecting UM or UIM coverage." Wilks v. Manobianco, 237 Ariz. 443, ¶ 7, 352 P.3d 912, 914 (2015). As to UM coverage, that act provides:
§ 20-259.01(A).
¶ 53 In Wilks, our supreme court held that an insurance company's compliance with the statute, by having its insured sign a DOI-approved form, does not bar a claim against the insurance agent for negligently failing to procure UIM coverage requested by the insured. 237 Ariz. 443, ¶¶ 10-11, 352 P.3d at 915-16. Jones argues that Wilks is distinguishable from the case at hand, noting that in that case, the plaintiff alleged the insurance agent failed to procure the UIM insurance she requested, while here the Murrays contend that Jones misled them as to the nature and importance of the UM/UIM coverage. He points out that the Wilks court emphasized "[a]n agent's common law duty to its clients to procure requested UIM coverage. . . remains distinct from the duties prescribed in § 20-259.01," id. ¶ 11, and asserts "[u]nlike Wilks, allowing [the Murrays] to pursue a common law negligence claim against Jones runs directly contrary to the language and purpose of A.R.S. § 20-259.01, which is intended to protect the insurer from after-the-fact inquiries concerning whether UM/UIM coverage was sufficiently offered by the insurer." He further notes that in Wilks, the insurance company was dismissed from the action and consequently could not be held vicariously liable for the agent's alleged negligence, unlike in this case.
¶ 54 The Wilks court observed that "completing the DOI-approved form eliminates fact questions concerning `whether UM/UIM coverage was sufficiently offered' by the insurer and `whether the terms of the offer were understood.'" Id. ¶ 10, quoting Ballesteros, 226 Ariz. 345, ¶ 22, 248 P.3d at 198. Noting that the legislature had intended to "`protect insurers from after-the-fact inquiries regarding the offer of coverage'" the court stated that while the act bars inquiries related to the insurer's offer of UM and UIM coverage, "[f]actual inquiries related to other types of alleged negligence or wrongdoing are neither expressly nor implicitly barred." Id., quoting Ballesteros, 226 Ariz. 345, ¶ 22, 248 P.3d at 198 (emphasis omitted). Here there is no dispute that the Murrays were offered UM and UIM coverage on a DOI-approved form, which they signed; the issue is whether they were affirmatively misled into signing it. The statute would work an inequity if the DOI-approved form could shield an agent from liability for having misled an insured to sign it, assuming arguendo that the statute applies to agents under the facts here. Because the issue is not whether the offer of UM and UIM insurance was made and sufficiently so, but whether Jones violated the applicable standard of care by providing the Murrays with misleading information about the coverage, which induced them to reject a higher level of UM and UIM coverage, we conclude the trial court did not err in denying Jones summary judgment on the Murrays claims based on § 20-259.01.
¶ 55 For the foregoing reasons, the trial court's rulings are affirmed except with respect to the Murrays' claims for emotional distress damages and statutory fraud, which rulings are reversed.
UM Claimed UIM Claimed Total Claimed Farmers $250,000 $250,000 $500,000Foremost $250,000 $250,000 $500,000Farmers Umbrella $1,000,000 combined $1,000,000Total Claimed $2,000,000Total Received ($110,000)Potential Damages 1,890,000