I Square Mgmt., LLC v. McGriff Ins. Servs., Inc., 21-3256

52 F.4th 1028

I SQUARE MANAGEMENT, LLC; Arkansas Knoxville Hotel, LP, Plaintiffs - Appellants

v.MCGRIFF INSURANCE SERVICES, INC., Defendant - Appellee

No. 21-3256

United States Court of Appeals, Eighth Circuit.

Submitted: September 21, 2022

Filed: November 9, 2022

Counsel who presented argument on behalf of the appellants and appeared on the brief was Scott E. Poynter, of Little Rock, AR. The following attorney(s) also appeared on the appellants’ brief; George Jay Bequette, Jr., of Little Rock, AR, Everett C. Tucker, IV, of Little Rock, AR, William Cody Kees, of Little Rock, AR.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Christin J. Jones, of Dallas, TX. The following attorney(s) also appeared on the appellee brief; Adam Howard Charnes, of Dallas, TX, Kevin Bradford Sears, of Atlanta, GA.

Before LOKEN, ARNOLD, and KOBES, Circuit Judges.

ARNOLD, Circuit Judge.

This case involves a flood that destroyed property stored at a warehouse. Unfortunately for the companies with an interest in the property, insurance didn't cover their loss, and so they sued their insurance agent for negligence. The district court¹ granted summary judgment to the agent on the ground that it had no duty to give advice about different coverages or to ensure that adequate coverage existed. The companies appeal, but we affirm.

I Square Management LLC is a hotel management company that, according to its chairman and CEO Shashwat Goyal, also builds and renovates existing hotels. One of those hotels was in Knoxville, Tennessee. Goyal helped create Arkansas Knoxville Hotel, LP (AKH), to purchase the hotel, and AKH and I Square entered into a hotel management agreement. I Square and AKH planned a significant renovation of the hotel, and, as part of that renovation, I Square and AKH purchased furniture, fixtures, and equipment in bulk and stored it all in a warehouse. At one point during the project their insurance agent, McGriff Insurance Services, Inc., advised the project's general contractor that a builder's risk policy was unnecessary for the construction. After a flood damaged or destroyed property in the warehouse, I Square and AKH filed claims with their insurers, but those claims were denied. They therefore sued McGriff, alleging that it had negligently advised that they need not purchase a builder's risk policy for the project.

To prevail on a negligence theory under Arkansas law, which applies in this diversity case, see Chew v. Am. Greetings Corp. , 754 F.3d 632, 635 (8th Cir. 2014), a plaintiff must prove, among other things, that the defendant owed it a duty. See Duran v. Sw. Ark. Elec. Coop. Corp. , 537 S.W.3d 722, 726 (Ark. 2018). Determining whether a defendant owed a duty to the plaintiff is a question of law for the court, and if the court determines that no duty is owed, then summary judgment is appropriate. See id. at 727. If Arkansas law is unclear on whether a duty is owed, we must do our best to predict how the Arkansas Supreme Court would rule in the circumstances. See Cincinnati Ins. Co. v. Rymer Cos., LLC , 41 F.4th 1026, 1029 (8th Cir. 2022) ; see also Chew , 754 F.3d at 635. Decisions from the Arkansas Court of Appeals may provide some evidence of how the Arkansas Supreme Court would rule, but we are not bound to follow them. See Burger v. Allied Prop. & Cas. Ins. Co. , 822 F.3d 445, 447 (8th Cir. 2016).

In determining the duties an insurance agent owes its clients, the Arkansas Supreme Court has consistently applied what it described as a "long established rule placing a responsibility on the insured to educate himself concerning matters of insurance coverage." See Stokes v. Harrell , 289 Ark. 179, 711 S.W.2d 755, 756 (1986). That means that it is the insured's "responsibility to adequately convey, albeit in laymen's terms, the nature of his wishes, in order to obtain the protection requested," and so "[a]n agent may point out to him the advantages of additional coverage and may ferret out additional facts from the insured applicable to such coverage, but he is under no obligation to do so." See id.

The Stokes court recognized, however, that where an agent and an insured have a "special relationship," some jurisdictions impose a duty on the agent to advise clients of appropriate insurance coverage. See id. But the court in that case immediately signaled that it was skeptical about that rule, and our overall impression from reading that court's opinions on the subject is that it takes a dim view of what is called the special-relationship exception, though it has been hesitant to say that it could never apply. We offer three reasons to support that impression.

First, in the 36 years since the Arkansas Supreme Court decided Stokes , that court has never applied the exception, as far as we can tell, to impose additional duties on agents. Nor has the Arkansas Court of Appeals. Not once.

Second, as we've already noted, the court in Stokes didn't seem impressed by the insured's argument. After noting that "some jurisdictions" had imposed additional duties thanks to a special relationship, the court immediately said that those decisions had "not found a large following among the courts." See id. It did, however, explain that a special relationship would entail "an established and ongoing relationship between the insured and the agent over a period of time, with the agent actively involved in the client's business affairs, and regularly giving advice and assistance in maintaining the proper coverage for the client." The court stopped short of saying that the exception was part of Arkansas law and instead held merely that, even if it were, the facts of that case wouldn't support applying it. See id.

Third, when it seemed that the facts of a case might call for applying the special-relationship exception, the Arkansas Supreme Court didn't do so. See Mans v. Peoples Bank of Imboden , 340 Ark. 518, 10 S.W.3d 885 (2000). There a widow sued an insurance agent for negligence after it failed to discover that her husband's life insurance policy had lapsed. See id. at 886. The court expressly held that no special relationship existed even though the widow had done business with the agent for 23 years, was unsophisticated, and had trusted the agent's advice. See id. at 889–90. And so the court applied the general rule that the insured "has a duty to educate herself concerning her insurance." See id. at 888, 890. As in Stokes , the court never expressly embraced the exception, recognizing merely that "some jurisdictions" have and that a special relationship "may" be found in certain circumstances. See id. at 888.

I Square and AKH invite us to focus on language from an Arkansas Court of Appeals opinion that, they say, supports its view. See Buelow v. Madlock , 90 Ark. App. 466, 206 S.W.3d 890 (2005). There, the court said that the insured can prove "a special relationship by showing that there exists something more than the standard insurer-insured relationship," see id. at 893 (quoting Sintros v. Hamon , 148 N.H. 478, 810 A.2d 553, 556 (2002) ), which is something determined on a case-by-case basis and presents a question of fact. See id. It also explained that a special relationship might exist when there is an "express agreement, long established relationships of entrustment in which the agent clearly appreciates the duty of giving advice, additional compensation apart from premium payments, and the agent holding out as a highly-skilled expert coupled with reliance by the insured." See id. (quoting Sintros , 810 A.2d at 556 ). I Square and AKH say that "something more" than the ordinary insurance relationship existed here: it points out that McGriff held itself out as a highly skilled expert and that they relied on those assurances to their detriment. And, they add, since the presence of a special relationship is a question of fact, the district court here should not have granted summary judgment to McGriff.

We are not convinced that the Buelow court's digression into Sintros was meant to open the door to expanded duties for insurance agents. It would be the rare agent who does not hold himself out as highly skilled, and the rare insured who doesn't rely on the agent's skill in making insurance selections. We do not think the Arkansas Supreme Court, given its skepticism about expanding liability, would now ask merely for the presence of "something more" than the ordinary relationship to do so; otherwise the exception would bid fair to swallow the rule. And so we are not inclined to give this aspect of Buelow much weight. We point out, moreover, that the Buelow court ultimately declined to find a special relationship and reversed a trial court decision imposing additional duties on the agent, see id. at 894, adding another case to the unbroken string of Arkansas appellate decisions rejecting this theory of liability.

I Square and AKH argue that there is more in this record to support a conclusion that McGriff had a duty that exceeded that of an ordinary insurance agent. They first point to how their relationship with McGriff began, explaining that it was McGriff (or more specifically, its predecessor, but for ease of reference, we will just use "McGriff") who expressed interest in doing business with I Square and not the other way around. McGriff then met with I Square at I Square's offices where it gave a personalized pitch promoting McGriff's insurance prowess and a plan that would streamline I Square's insurance practices and save it money. McGriff also promised to service I Square's existing policies for free, and when those policies were due for renewal, McGriff would recommend a plan whereby I Square would purchase one universal policy to cover all its projects rather than obtain multiple policies covering different projects. So I Square abandoned its existing agent and turned to McGriff.

According to Goyal, over the next months McGriff employees met with I Square several times to...