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Click here for the full text of this decision FACTS:In July 1993, Eric Critchfield contacted Dennis Smith, an insurance agent, to purchase home and car insurance. Critchfield wanted the “maximum” amount of underinsured/uninsured motorist coverage available. After discussing several options, Critchfield chose a policy from Nationwide Insurance Co. with a $500,000 limit for bodily injury liability, and a $100,000 per-person limit for UM/UIM coverage. Though Smith could have secured $500,000 in UM/UIM coverage, Smith recommended only $100,000 in coverage since Critchfield was also covered by a major medical policy. Critchfield renewed the policy with these limits from 1993 to 1999. Critchfield’s son died on Dec. 28, 1999, eight days after suffering injuries as a passenger in another vehicle. Nationwide paid the policy limits. Critchfield’s attorney told him at that time that Smith could have secured a greater UM/UIM coverage. In December 2000, Critchfield and his wife sued Smith for negligence in failing to adequately and properly advise them on the appropriate amount of UM/UIM coverage; failing to provide them with UM/UIM coverage equal to the personal liability coverage; and failing to increase their UM/UIM coverage at each renewal date. They also alleged breach of contract, breach of fiduciary duty and negligence misrepresentation. The trial court granted partial summary judgment to Smith on the issues of negligence, negligence per se and breach of contract. The trial court then sua sponte bifurcated the issues of Smith’s liability and any resulting damages, and ordered that the same jury hear both trials. A jury answered “no” when asked if Smith had 1. engaged in any false, misleading or deceptive act or practice; 2. engaged in any unconscionable action or course of action; 3. made a negligent misrepresentation; or 4. failed to comply with his fiduciary duty to the Critchfields. The jury also found that the Critchfields’ own negligence served as the proximate cause of any damages they sustained. The trial court entered a take-nothing judgment against the Critchfields. The court later overruled the couple’s motion for new trial and judgment notwithstanding the verdict. HOLDING:Affirmed in part; reversed and remanded in part. The court states that in Texas, an insurance agent owes common-law duties to a client when procuring insurance to use reasonable diligence in attempting to place the requested insurance, and to inform the client promptly if unable to do so. An insurance agent has no legal duty to extend insurance protection merely because he knows of the customer’s need for additional insurance, especially without evidence of prior dealings where the agent customarily has taken care of his customer’s needs without consulting him. In this case, the court continues, the Critchfields maintain that Smith owed them a duty to “disclose certain information to assist [them] in making an informed decision” about their UM/UIM insurance coverage. However, according to McCall v. Marshall, 398 S.W.2d 106 (Tex. 1965), such a duty to disclose information about higher insurance coverage does not exist unless there is evidence of prior dealings where the agent has taken care of his customer’s needs without consultation. No such prior dealings exist here. Critchfield never told Smith that he wanted $500,000 in UM/UIM coverage and never asked about other types of coverage. Likewise, Critchfield said Smith never told him that $100,000 was the maximum amount of coverage. “Because no evidence exists that 1) placed a duty on Smith to increase the Critchfields’ UM/UIM coverage or 2) raised a genuine issue of material fact demonstrating that Smith violated any common-law duty he owed to the Critchfields, the trial court did not err in granting summary judgment on the Critchfields’ common-law negligence claims.” The Critchfields’ negligence per se claim is based on their argument that Smith violated Insurance Code Art. 5.06-1, which in �3 mandates minimum coverage. The court notes that �1 of the same provision says the statute does not apply where an insured “shall reject the coverage in writing.” The court notes that in Geisler v. Mid-Century Ins. Co., 712 S.W.2d 184 (Tex.App. Houston 1986, writ ref’d n.r.e.), a Houston appeals court held under facts similar to this case that under Art. 5.06-1, the insurer either has to provide its insured with at least the statutory minimum UM/UIM coverage or obtain a written rejection of the UM/UIM coverage. Smith, in this case, had no duty under Art. 5.06-1 to offer any higher limits of UM/UIM coverage. The court does, however, sustain the Critchfields’ argument that summary judgment was improper on their breach of contract claim. Critchfield’s deposition testimony recounted his conversation with Smith, and the court finds the evidence raises a genuine issue of material fact on each element of a valid oral contract: “Smith offered his services to advise the Critchfields on their insurance coverages, and the Critchfields accepted this offer. Smith acknowledged that a contractual relationship existed between him and the Critchfields where Smith provided insurance advice and counsel.” Furthermore, Smith’s admission that a contract existed also raises a genuine issue of material fact as to whether the contract was executed with the intent that it be mutual and binding. And, there was consideration by virtue of the fact that Smith was paid commission, albeit through the insurer, on his sale of the policy. The court does not address the Critchfields’ argument that the trial court erred in bifurcating the trial because the couple did not properly preserve error for appeal. OPINION:Devasto, J.; Worthen, C.J., Griffith and DeVasto, JJ.

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