Progressive Casualty Insurance Company v. Lloyd Cowen d/b/a East Coast Insurance Group (2010)

MEMORANDUM OF DECISION

This is a complaint brought by the Progressive Casualty Insurance Company against Lloyd Cowen d/b/a East Coast Insurance Group in two counts, breach of contract and negligence.   The plaintiff alleges that Cowen, an insurance agent for Progressive, was unable to produce a signed excluded driver form which he was required to maintain for an automobile liability policy he sold.   As a result of his failure, Progressive further alleges they were required to pay $152,000 in damages caused by the driver excluded on the policy.

Based on all the testimony and exhibits introduced at trial, together with the drawing of reasonable inferences and taking into account the credibility of witnesses, the court finds that the following facts have been established.

Mr. Cowen, who has had 15 years experience as an insurance agent, is a partner in the East Coast Insurance Group (East Coast).   At all times East Coast had a producer agreement with Progressive Casualty Insurance Company to sell insurance as their agent.   The agreement contained the following provision:

“Article III.  Duties Section A

․ You (the agent) agree to:  11.   Retain in an orderly fashion and for the period specified in the Underwriting Requirements, each of the following, to the extent applicable, with respect to Policies and Renewals:  all original signed applications, and try the exclusions ․ Upon expiration or termination of this agreement, or at any time upon our request, you agree to send us all such documents or copies.

Included in Progressive's Underwriting Requirements under the heading “File Maintenance and Audit Requirements” it states that a Progressive agent is “responsible for producing all correctly completed signature forms/proof documents upon our request.”

Under the heading “Drivers” the Underwriting Requirements provide “if a driver is to be excluded from coverage, the excluded driver should be listed and excluded on each policy.   A signed exclusion is required for each policy.”

The Defendant, Cowen, sold a Progressive auto insurance policy to a Leo Evans which listed a Darian Hemmings as an excluded driver.   The period of coverage for the policy issued was from July 2, 2008 through January 2, 2009.   The policy noted Darian Hemmings was listed as an excluded driver.

On August 12, 2008, Darian Hemmings negligently caused an automobile accident while driving the vehicle owned by Leo Evans and insured by Progressive.   The driver and the passenger of the vehicle struck by Evan's vehicle filed claims for personal injuries.

A claims representative for Progressive contacted East Coast to obtain a copy of the signed excluded driver form for Darrin Evans.   Cowen advised Progressive and admitted during this hearing that he could not locate the exclusion form or any part of the file for this insurance coverage.

As a result of not being able to obtain the signed exclusion form Progressive was required to pay $100,000 to the driver of the vehicle, $50,000 to the passenger and $2022.43 in property damage for total payment of $152,023.43.

The first count of the plaintiff's complaint claims the defendant breached his agency contract with the plaintiff insurance carrier causing damage.

To prevail on a breach of contract claim, the plaintiff must prove four elements:  (1) the formation of agreement which terms are definite;  (2) performance by one party;  (3) breach of the agreement by the opposing party;  and (4) damages directly and proximately caused by the defendant's breach.   McCann Real Equity Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04 (2006).

The plaintiff has satisfied the necessary burden of proof with respect to the first count.

The second count of the plaintiff's complaint is a claim of negligence causing damage.

“In order to establish a prima facie case of negligence, the plaintiff must show that:  (1) the defendant owed a duty of care to the plaintiff;  (2) the defendant breached that duty of care;  (3) the defendant's negligent acts constituted both actual and proximate cause of the plaintiff's injuries;  and (4) the plaintiff suffered actual damages.”  Madsen v. Gates, 85 Conn.App. 383, 391 (2004).

It is the opinion the court that the plaintiff has satisfied the necessary burden of proof with respect establishing negligence.   The court awards damages in the amount of $152,023.43 plus costs.   Judgment is entered accordingly.

Gilardi, J.T.R.

Gilardi, Richard P., J.T.R.