USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 96-2220
CAROLINA CASUALTY INSURANCE COMPANY,
Plaintiff, Appellant,
v.
THE CUMMINGS AGENCY, INC.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Robert W. Kline with whom Lisa M. Fitzgibbon and Kline Law
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Offices were on brief for appellant.
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Wendell G. Large with whom John B. Lucy and Richardson, Whitman,
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Large & Badger were on brief for appellee.
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April 7, 1997
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ALDRICH, Senior Circuit Judge. After eliminating
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irrelevancies, unsupported statements and, unhappily,
misstatements, a core remains that requires us to consider
whether there was error in the district court's granting
summary judgment for the defendant. On this appeal,1 the
basic facts are these.
Plaintiff Carolina Casualty Insurance Co.
("Carolina"), a transportation specialist, wrote a liability
policy on Geary and Judith Bonville, d/b/a Bonville Farms
("Bonville Farms"). Subsequently, while a Bonville Farms
truck was carrying crushed (scrap) cars the load shifted, and
for the resulting accident Carolina was obliged to pay
$750,000 in damages. It sues The Cummings Agency, Inc.
("Cummings") for having "produced" the policy, negligently
failing to identify that Bonville Farms carried scrap cars --
a higher risk and an undertaking that Carolina would not have
accepted. The application, on Carolina's form, as submitted
to its general agency for Maine, Surplex Underwriters, Inc. -
- who investigated Bonville Farm and approved -- read as
follows: "Type of Cargo Carried: (Be specific) Produce,
Potatoes, Potash (bagged) and Lumber." It could be found
that Cummings had completed the application for Bonville
Farms' signature. Even in this court Carolina claims that
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1. There is no merit in defendant's claim that the appeal
was filed too late. See Lopez v. Corporacion Azucarera de
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Puerto Rico, 938 F.2d 1510, 1514 (1st Cir. 1991).
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Cummings signed, too. Very conspicuously, it did not; nor
was its signature requested. Cummings' name simply appeared
as the "Non-Licensed Producer." Carolina maintains, however,
that Cummings "knew or should have known" of Bonville Farms'
scrap car operation and should have reported it. Obviously
this assumes a duty to inform. The court ruled there was
none. We affirm.
In order to defeat summary judgment, Carolina was
required to come forward with an affirmative showing. See
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Wightman v. Springfield Terminal Ry., 100 F.3d 228, 230 (1st
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Cir. 1996); Fed. R. Civ. P. 56(c). It showed none with
respect to a producer's duty. The court stated it knew of no
special meaning for the term producer. Nor do we. In the
absence of evidence, we equate it with broker. A broker,
under the Maine statute, is "any person who, not being an
agent of the insurer, as an independent contractor solicits,
negotiates, or procures insurance or annuity contracts or the
renewal or continuation thereof on behalf of insureds or
prospective insureds other than himself." Me. Rev. Stat.
Ann. tit. 24-A, 1506. This means no duty toward the
insurer, see Giberson v. York County Mut. Fire Ins. Co., 142
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A. 481 (Me. 1928), 127 Me. 182, 185 (1928); cf. 3 Lee R. Russ
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& Thomas F. Segalla, Couch on Insurance 3d 45:4 (1995),
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witha heavy burden on Carolinato make a special showing here.
As there was no independent writing on this
subject, nor evidence of a trade practice,2 we turn to the
application. Over the "Applicant's Signature" line it is
stated that the applicant "represents that the information
above is true." As noted ante, the "Non-Licensed Producer,"
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elsewhere identified as the applicant's "agent," represents
nothing.
We ask a simple question. If the producer is to be
taken as making a representation, why is not this the place
to ask him to make it? The implication speaks loudly.
Viewed independently, what are the practicalities
of Carolina's contention? How can a broker afford to make a
study in depth of every customer, to the extent that, in case
of loss, he is accountable for what he "should have known,"
not only about the customer, but of the insurer's
underwriting standards? Correspondingly, no insurance
company is going to depend upon the ability (and industry) of
every, non-licensed by it, broker. Plaintiff here did not;
it followed its usual custom and commissioned an independent
investigation. This makes business sense, both ways.
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2. It does appear that Cummings received from Carolina a
share of the premium, manifestly payment for having
"produced" the insured, but it assumes the point to say that
this activity implied any specific obligations. See 3 Lee R.
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Russ & Thomas F. Segalla, Couch on Insurance 3d 45:4
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(1995).
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At the same time, might there not be an
intermediate ground? Suppose a broker actually knows facts
about his customer that he knows would make him unacceptable,
and knows that the would-be insured is filing a false
application. Should not the insurer have a right to expect
good faith? If some of the hearsay proffers Carolina made
here could be broadly accepted, it might have made out a case
of fraud. See Giberson, ante. We need not reach this,
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however. Carolina's brief expressly disclaims making such a
claim.
Carolina has failed to produce evidence that
Cummings' status gave rise to any duty. Therefore Cummings
is entitled to summary judgment. The decision of the
district court is Affirmed.
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