United States District Court, W.D. Arkansas, Harrison Division
BYRON C. WARREN, individually and as Trustee of the Warren Family Trust PLAINTIFF
JEANETTE HOLLAND and WILLIS OF ILLINOIS, INC. DEFENDANTS
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
before the Court are Defendants Jeanette Holland's and
Willis of Illinois, Inc.'s ("Willis") joint
Motion for Summary Judgment (Doc. 50) and supporting
documents (Docs. 51-52); Plaintiff Byron C. Warren's
Response in Opposition (Doc. 54) and supporting documents
(Docs. 55-56); and Defendants' joint Reply (Doc. 57).
Defendants also filed a Motion to Strike (Doc. 58) the
affidavits of Mr. Warren and expert witness, Dr. Lawrence S.
Powell. Both affidavits were attached to Mr. Warren's
Response in Opposition to the Motion for Summary Judgment.
For the reasons set forth herein, Defendants' Motion for
Summary Judgment (Doc. 50) is GRANTED IN PART AND DENIED IN
PART, and their Motion to Strike (Doc. 58) is DENIED.
C. Warren, individually and as Trustee of the Warren Family
Trust,  filed this lawsuit on June 11, 2015, in
the Circuit Court of Baxter County, Arkansas. See
Doc. 3. The case was removed to this Court by Defendants on
July 17, 2015, due to the presence of complete diversity of
citizenship and the satisfaction of the minimum amount in
controversy required by 28 U.S.C. § 1332(a).
See Doc. 1. The case then proceeded through the
initial pleading stage, and on September 30, 2015, Mr. Warren
filed an Amended Complaint (Doc. 21), alleging a claim for
negligence against both Ms. Holland and Willis, and claims
for breach of implied and express contract and breach of
implied and express warranty against Willis alone. Ms.
Holland, who is employed by Willis, was Mr. Warren's
insurance agent. According to the Amended Complaint, Ms.
Holland recommended that Mr. Warren purchase a High Value
Homeowners Policy from Travelers Home and Marine Insurance
Company (the "Travelers Policy") to insure his
vacation home in Mountain Home, Arkansas.
Mr. Warren was not present in Arkansas, his vacation home
there suffered water and mold damage due to a ruptured steam
line fitting. The Travelers Policy of insurance contained an
exclusion for loss caused by water leakage occurring over a
period of 14 days or more ("the 14-day exclusion").
The Travelers Policy also contained an exclusion for loss
caused by fungi, other microbes, or rot. Mr. Warren did not
discover the water and mold damage until May 20, 2014, which
he concedes was more than 14 days after the water leakage
began. Travelers ultimately denied coverage, see
Doc. 21-2, despite the fact that Defendants, according to the
Amended Complaint, "at all times during the period the
claim was pending, assured the Plaintiff that the damage was
covered under the Travelers policy." (Doc. 21, p. 3).
Warren does not dispute Travelers' denial of his
insurance claim based on the two exclusions in the Travelers
Policy. Instead, he brings his lawsuit against Ms. Holland
and Willis on the theory that, due to his approximately
40-year relationship with Willis and its predecessor
companies and agents, Defendants were so familiar with his
personal insurance needs that they either knew or should have
known that Mr. Warren traveled extensively and was away from
his residence in Arkansas for extended periods of time. He
maintains that in reliance on this special relationship
between himself and Defendants, he purchased the Travelers
Policy that had been recommended to him by Ms. Holland on or
about August 5, 2010, and he allowed the Policy to be renewed
annually thereafter. He further maintains that the Travelers
Policy was completely inappropriate for a vacation home that
was vacant for extended periods of time, a fact that
Defendants either knew or should have known based on their
long relationship with Mr. Warren and intimate knowledge of
his personal and business properties.
Warren began procuring policies of insurance for his various
properties in the mid-1970s from an agent named Dick Miles,
with whom Mr. Warren was personally acquainted. Mr. Miles
worked for the Bartlett Agency, which was acquired in 1996 by
an insurance brokerage firm called Hilb, Rogal, and Hobbs of
Chicago ("HRH"). See Braeke Depo., Doc.
52-4, p. 2. Even after the Bartlett Agency was acquired by
HRH, Mr. Miles served as HRH's office president until
1999, and he continued to manage Mr. Warren's insurance
needs. Id. at p. 4. At some point, insurance agent
Tammy Sullivan, who was first employed at the Bartlett Agency
and continued her employment at HRH, took over Mr.
Warren's accounts from Mr. Miles, while Mr. Miles served
as her supervisor. Ms. Sullivan procured the original policy
of insurance that covered the Arkansas home when it was first
built or purchased. That policy of insurance was issued
through The Hartford ("Hartford Policy"), and it
did not contain a 14-day exclusion for water damage.
See Powell Depo., Doc. 55-7, p. 5.
October 1, 2008, HRH merged with Willis and began operating
out of the Moline, Illinois office. Ms. Holland began working
at Willis as a personal lines broker in April of 2008, under
the supervision of Ms. Sullivan, and Ms. Holland took over
Mr. Warren's accounts. At around that time, the Hartford
Policy came up for renewal, and Mr. Warren requested that
Willis research the possibility of acquiring different,
comparable insurance coverage for his Arkansas residence. Mr.
Warren stated in his deposition that, at the time, he was
looking for a policy that was competitively priced, met his
needs, and at the same time was with "a good, stable
company." (Warren Depo., Doc. 52-2, p. 18).
parties dispute whether Ms. Holland presented Mr. Warren with
any policy recommendation other than the Travelers Policy.
Defendants contend that Mr. Warren often ignored Ms.
Holland's recommendations concerning homeowner's
insurance options. Mr. Warren, on the other hand, testified
that Ms. Holland offered him only one option for insuring his
Arkansas home once his Hartford Policy came up for renewal:
the Travelers Policy. Further, Mr. Warren claims that he
trusted Ms. Holland and Willis to understand his insurance
needs and offer him a comparable policy of insurance to the
one he already had. In Mr. Warren's view, the water
damage that his Arkansas home suffered in 2014 would have
been covered under the original Hartford Policy, since that
Policy did not contain a 14-day reporting exclusion for water
damage. The Travelers Policy contained the exclusion, and
thus was not comparable to the Hartford Policy and should not
have been recommended for purchase. He also argues that,
despite the fact that the Bartlett Agency changed hands over
the years, the same insurance agents in the same Moline
office worked closely together to service his accounts, and
they should have been familiar with his properties and
business needs after such a long relationship.
Holland's part, she admits she never read Mr.
Warren's Hartford Policy, see Holland Depo.,
Doc. 54-6, p. 6, and she did not compare the terms and
exclusions of the Hartford Policy to the Travelers Policy
prior to recommending that Mr. Warren purchase the Travelers
Policy. Mr. Warren contends that he relied on the
relationship between himself, Ms. Holland, and Willis in
deciding to take Ms. Holland's advice and purchase the
Travelers Policy; and he further contends that if he had
known the Travelers Policy contained a 14-day reporting
requirement for water damage, he never would have purchased
it. See Warren Depo., Doc. 52-2, p. 22.
point out in support of their Motion for Summary Judgment
that Mr. Warren could not have had a special relationship
with Ms. Holland because he never met her in person, and
spoke with her only by telephone about once a year in the six
years that she was his broker. Moreover, Defendants argue
that Mr. Warren had no "reason to believe any other
representative of Willis or its predecessors, including HRH,
provided information related to the status, occupancy,
vacancy, or supervision of the [Arkansas] Property to Ms.
Holland when she began assisting him with placements in
2008." (Doc. 56, p. 9 (citing to Mr. Warren's
deposition)). Mr. Warren disputes Defendants' contentions
and points out that Ms. Holland knew or should have known
that his Arkansas home was a vacation home that was not
continuously occupied, since Mr. Warren's original
broker, Mr. Miles, knew that fact, and Ms. Sullivan, his
second broker, also knew that fact and was Ms. Holland's
Warren also cites to evidence to prove that Ms. Holland and
Ms. Sullivan actually knew that the Arkansas home, was, in
fact, a secondary home, at or around the time Ms. Holland
recommended that Mr. Warren purchase the Travelers Policy.
See Doc. 54-8 (email to Ms. Sullivan from May 25,
2004, discussing Arkansas home is a secondary home); Doc.
54-9 (email to Ms. Holland from Willis employee Kim Heald,
dated August 16, 2010, noting that Mr. Warren expressed in a
telephone conversation that "he wanted his policies the
way they were with Hartford[, ] that is his IL home ... as
his primary and Arkansas as his secondary"); Doc. 54-10
(notice from Travelers to Mr. Warren and Willis, dated July
29, 2011, and noting that the property insured is a
"secondary home"). Attached to the Amended
Complaint is an email from Ms. Sullivan, dated March 7, 2005,
that indicates she knew that Mr. Warren would leave the
country for periods of time. See Doc. 21-4.
now on the claims in the Amended Complaint, the Court will
begin with Count I's charge of negligence. In the Motion
for Summary Judgment, Defendants admit that "Arkansas
courts recognize a very narrow exception to the limited
duties of insurance brokers where there is a 'special
relationship between the agent and the insured.'"
(Doc. 51, p. 4 (quoting Buelow v. Madlock, 206
S.W.3d 890, 893 (Ark. Ct. App. 2005))). But Defendants
attempt to set the start-date of this special relationship in
2008, when Willis merged with HRH and Ms. Holland began
managing Mr. Warren's account. By contrast, Mr. Warren
sets the start-date of the alleged special relationship in
the mid-1970s, when he first started buying policies of
insurance from Mr. Miles at the Bartlett Agency.
also maintain that Mr. Warren wrongly assumes that Mr. Miles
shared relevant details about the nature of Mr. Warren's
properties with other agents at the Bartlett
Agency/HRH/Willis-including with Ms. Sullivan, who took over
the accountfrom Mr. Miles, and with Ms. Holland, who took
over the account from Ms. Sullivan. Mr. Warren admitted in
his deposition that he never had a direct conversation with
Ms. Holland about the fact that his Arkansas home was a
vacation home that he only occupied four months out of the
year, nor that he left the water on in the home when it was
vacant. See Warren Depo., Doc. 52-5, pp. 22-23.
Defendants argue that if they owed Mr. Warren a particular
duty of care based on a special relationship, their alleged
negligent acts were not the proximate cause of Mr.
Warren's losses, since Mr. Warren was obligated to read
his own policies and educate himself as to its provisions,
while Willis "did not have a duty to advise Plaintiff as
to the sufficiency of the coverage available under the
[Travelers] Policy, and they certainly did not have a duty to
advise and secure coverage for every possible
contingency." (Doc. 51, p. 8). Finally, Defendants
contend that any negligence claim is barred by the three-year
statute of limitations, which began to run when Mr. Warren
first purchased the Travelers Policy in September of 2010,
not when he learned his water-damage claim would be denied by
Mr. Warren's causes of action for breach of contract and
breach of warranty, which appear in Counts ll-V of the
Amended Complaint, Defendants maintain that the "Client
Bill of Rights" (Doc. 52-7) that Willis holds out as
containing the principles that guide its actions with respect
to its clients, is not a true contract or warranty, nor was
it incorporated into any other contract brokered by Willis on
Mr. Warren's behalf. Mr. Warren admitted that he never
saw this Client Bill of Rights before purchasing the
Travelers Policy, and he never received the Client Bill of
Rights from Willis, along with a copy of any policy of
insurance or other document. See Warren Depo., Doc.
52-2, p. 28. He admits instead that he only became aware of
the existence of the Client Bill of Rights while he was
browsing the Willis website sometime after he purchased the
Travelers Policy, although he does not recall the exact date.
Id. The Client Bill of Rights was apparently
posted on the website for any client-or any interested member
of the public-to view. Mr. Warren does not allege that Willis
sent the Client Bill of Rights to him by electronic means or
discussed the document and its contents with him.
these undisputed facts, Defendants contend that Mr. Warren
cannot rely on the Client Bill of Rights as the basis for
either an express or implied contract, or an express or
implied warranty, and thus, summary judgment should issue in
Defendants' favor on all contract and warranty claims.
Mr. Warren responds that he was entitled to rely on the
promises set forth in the Client Bill of Rights because
Willis posted the document on its website, and therefore must
have intended to be bound by the document. In addition, Mr.
Warren observes in his Response brief that Ms. Holland in her
deposition described her job title at Willis as "Client
Advocate or Manager, " which, in Mr. Warren's view,
supports his argument that Ms. Holland and her employer
intended her to be bound by the Client Bill of Rights.
Defendants' Motion to Strike, they focus on two
affidavits that were attached to Mr. Warren's Response to
the Motion for Summary Judgment. First, they argue that Dr.
Powell's expert-witness affidavit should be stricken
because it does not contain facts supported by evidence, but
is composed solely of opinions, conjecture, legal
conclusions, and speculation, none of which is based on his
personal knowledge and observation. See Doc. 58, p.
2. Second, Defendants argue that paragraph 6 of Mr.
Warren's affidavit should be stricken because he states a