Cigna Property & Casualty Companies v. Zeitler

HOLLANDER, Judge. On September 4, 1995, Hurricane Luis stormed through the Caribbean island of St. Maarten, severely damaging the Ser-efe, a forty-seven foot Tayana Auxiliary Cutter owned by Dr. Klaus Zeitler, appellee. At the time of the occurrence, appel-lee believed his yacht was covered by a marine insurance policy issued by CIGNA Property and Casualty Companies (“CIGNA”), appellant, and procured by Jack Martin & Associates, Inc. (“JMA”), appellant, an insurance agency located in Annapolis. On November 8, 1995, CIGNA denied appellant’s claim for the loss of the vessel, because the insurance policy did not provide coverage in Caribbean waters after July 1, 1995, when the hurricane season commences. ⁴⁴⁸ On April 8, 1996, Zeitler instituted suit in the Circuit Court for Anne Arundel County against CIGNA and JMA, alleging breach of contract and negligence. 1 A jury returned a verdict in favor of Dr. Zeitler, and awarded damages against both appellants in the amount of $200,329.74.

After the court denied appellants’ motions for judgment notwithstanding the verdict, appellants timely noted their appeals. They present numerous issues for our consideration, some of which overlap. We have condensed, rephrased, and reordered their questions as follows: I. Did the trial court err in submitting appellee’s negligence count against JMA to the jury in the absence of expert testimony regarding the duty of care owed to a , client by a professional insurance agent?

II

Did the trial court err in concluding that CIGNA was required to notify appellee of the new terms contained in his 1994-1995 policy, pursuant to COMAR 09.30.32?

III

Were appellants entitled to judgment as a matter of law because of appellee’s failure to read the insurance binder and the insurance policy? For the reasons that follow, we perceive no error. Therefore, we shall affirm. Factual Background Dr. Zeitler, a citizen of Canada, purchased the Serefe in May 1991.

When the yacht was damaged by the storm, he was employed as chief executive officer of a Canadian mining corporation based in Toronto. Although appellant resided in Toronto, he harbored the vessel in Annapolis with Paradise Bay Yacht Charters, Inc. (“Paradise Bay”). Paradise Bay maintained the boat, offsetting the cost of its services by including the boat in its charter fleet. Although Dr. Zeitler received a portion of the fees generated by charter use, he retained the right to use the vessel at his convenience, with ⁴⁴⁹ prior notice to Paradise Bay.

JMA acted as the insurance broker for the vessels in the Paradise Bay fleet. At the time of purchase, the vessel was covered under a CIGNA policy held by the previous owner and arranged through JMA. On June 10, 1991, shortly after Dr. Zeitler acquired the vessel, he signed a “Watercraft Application” by which appellee instructed JMA to obtain insurance. The application advised that Dr. Zeitler’s coverage would be under a CIGNA policy that was in effect from November 1, 1990 through November 1, 1991.

According to appellee’s trial testimony, he paid $992 in premiums from June 10, 1991 until the end of the policy period. Ordinarily, insurance policies for the Paradise Bay fleet ran from November 1 of each year through November 1 of the following year. Sometime prior to November 1, 1991, JMA sent a letter to Dr. Zeitler at his Toronto address, advising him that his current policy was about to expire, and that JMA had “taken the liberty of remarketing the [insurance] policy to provide the most complete coverage at the most competitive rate.” For the renewal year beginning on November 1, 1991 and continuing through November 1, 1992, JMA placed appellant’s coverage with Maryland Casualty Company, rather than CIGNA. Although JMA informed appellee that his policy would be placed with a different insurer, the letter referred to his November 1991 through November 1992 application as a “renewal” application.

JMA’s letter stated: Your coverage has been placed with Maryland Casualty Company. Enclosed you will find your renewal policy, an invoice for your renewal premium as well as a Renewal Application. Please read the policy carefully, make any necessary changes and return the signed application with your payment. A statement at the bottom of the page provided: It is important that we have the Renewal Application completed and returned to our office.

Up to date information allows me to select appropriate coverage for your yacht at the lowest premium cost. ⁴⁵⁰ In November 1992, JMA chose not to “renew” coverage through Maryland Casualty. Instead, it returned to CIGNA. The Serefe was insured through CIGNA until the boat was damaged in 1995. In renewal year 1991-1992, the “Navigation Zone” specified on appellee’s renewal application was the “Chesapeake Bay and tributaries.” At trial, Dr. Zeitler testified that, prior to renewal year 1992, he informed JMA that he wished to sail in the Caribbean.

Accordingly, the “Navigation Zone” on appel-lee’s application for November 1992 through November 1993 was changed to the “Atlantic including Bahamas, Bermuda, Virgin Islands.” In an October 22, 1992 cover letter to appellee accompanying the 1992-1993 “renewal”, JMA agent Peggy Brookman added the following note at the bottom of the page: “Have a Safe Trip to the Islands!” 2 The following year, appellee’s “Navigation Zone” was again expanded. A “Certificate of Insurance” dated October 19, 1993 contained the following “Navigational Warranty”: “Atlantic Coast from Eastport, ME to Cedar Key, FL including the Caribbean Box; 9-19 degrees North to 58-73 degrees West and all transits in between.” Significantly, the 1993-1994 policy contained no limitation as to the dates of travel in the Caribbean. In October 1994, a representative of Paradise Bay informed Morgan Wells, a marine insurance agent with JMA, that JMA should not include the Serefe among the Paradise Bay vessels insured under the fleet policy for 1994-1995. Thereafter, JMA negotiated with CIGNA to obtain a private pleasure policy to cover the Serefe.

On October 21, 1994, Wells sent the following facsimile to CIGNA: ⁴⁵¹ Following account is under Paradise Bay Yacht Charters. As in past years, vessel is departing to the Carib with Carib 1500 Rally. Return Ches Bay May 1995. Vessel is pleasure only during this time.

As a result we request separate Binding and coverage EFF 01 Nov, apart from the PBAY fleet. Offshore App follows. Client would like Binder ASAP What transpired next is a matter of dispute. According to JMA, it mailed a binder reflecting the terms of the “pleasure craft” policy to appellee on October 26, 1994.

The insurance binder stated: “This binder is a temporary insurance contract subject to the conditions shown on the bottom of this page and serves as proof of insurance until you receive the actual policy.” The “Navigation Limits” listed on the binder provided: Atlantic & Gulf Coastwise & island tributary waters of the U.S. and Canada between St. John New Brunswick & Carabelle FL. both [sic] Inclusive and including the waters of Bahamas. Navigation is further extended to include the waters of the Caribbean Sea to 11 Degrees North Latitude from 11/01/9k to 07/01, but excluding Haiti, Cuba, and the Dominican Republic. A two (2%) deductible applies while in Bahamas and Caribbean Waters. (Emphasis added).

JMA also contends that it subsequently mailed a copy of the policy to appellee. Appellee, however, disputes that he received a copy of the policy and binder before the loss that spawned this litigation. Regardless of when JMA sent the binder to appellee, and despite the terms of the pleasure-craft policy Wells had negotiated with CIGNA, it is clear that in the fall of 1994, JMA sent Dr. Zeitler a “renewal application”, as it had done in previous years. An undated cover letter from JMA agent Teresa Kellum again instructed appellee to review his “current coverages” and sign the “renewal application.” The letter said, in part: Your policy is due to renew shortly and we would like you to take a few moments to review your current coverages. ⁴⁵² Enclosed you will find a Renewal Application reflecting your current coverages.

Please review the application carefully and verify that the information we have is complete and correct by making the changes directly on the application, signing it and returning it to our office. Up to date information allows me to select the most appropriate coverage for your yacht at the most competitive rate. The application can be returned with your check for the renewal premium in the enclosed envelope. The “renewal application”, which appellee signed on November 8, 1994, did not reflect the changes in coverage contained in the insurance binder that JMA claimed it mailed to Dr. Zeitler on October 26, 1994.

The application indicated that appellee’s premium for the upcoming year would be $2,668.00, which was $99.00 more than appellant had paid the previous year. The “Navigation Zone” on the renewal application for November 1, 1994 through November 1, 1995, was identical to the one for the period covered by the policy in effect for the period of November 1, 1993 through November 1, 1994. It said: “Atlantic Coast from Eastport, ME to Cedar Key, FL including the Caribbean Box; 9-19 degrees North to 58-73 degrees West and all transits in between.” Appellee made several changes to the 1994 application. He added “radar” and “SSB Radio” to the list of navigation equipment.

He also indicated that he wished to insure a “Dinghy and Motor”, valued at $5,000.00. On November 29, 1994, JMA wrote Dr. Zeitler a letter requesting more information about the Dinghy and an additional $125.00 premium. Appellee paid the additional premium by check dated December 29,1994. In the fall of 1994, Dr. Zeitler sailed to the Caribbean.

During the winter of 1995, the boat experienced engine trouble. Because of previous business obligations, appellee returned to Toronto and left the boat docked at the Simpson Bay Yacht Club (“Simpson Bay”) on the island of St. Maarten. As we mentioned earlier, on September 4, 1995, Hurricane ⁴⁵³ Luis wreaked havoc on the island. The Serefe sank while moored at the Simpson Bay dock.

When Dr. Zeitler learned that his vessel had sunk, he called JMA to make a claim under his policy. After JMA submitted a claim to CIGNA, the insurer dispatched a surveyor to the site. Upon reviewing the damage, the surveyor concluded that the damage to the vessel exceeded $234,000.00, the limits of appellee’s policy. On November 8, 1995, CIGNA notified appellee of its denial of benefits under the policy.

CIGNA cited the navigation warranty contained in appellee’s insurance policy, which it said was sent to appellee “by [his] agent, Morgan Wells, on October 26, 1994 in the form of the Insurance Binder.” The warranty did not provide coverage for the boat while in the Caribbean at the time in question. Thereafter, appellant arranged for the Serefe to be raised and restored, at a cost of $200,329.74. On April 9, 1996, appellee filed a two-count complaint against JMA and CIGNA. Count I alleged that CIGNA breached its contract with appellee when it “fail[ed] to provide him with coverage for which he applied in his Renewal Application for policy year 1994-1995 and by failing to notify [appellee] of any change to the 1994-1995 policy.” Count II sought damages from JMA for negligence.

Dr. Zeitler averred that he “relied upon the expertise, and advice of [JMA] to provide him with proper and adequate insurance coverage for his boat and to make sure the boat was insured for damage and/or destruction caused by natural disasters such as a hurricane, without limitation, as he had requested in his Renewal Application for the policy year 1994-1995.” Ap-pellee claimed JMA was negligent in “failing to procure the insurance coverage [appellee] requested” and “not notifying [appellee] of any change in his renewal policy that reduced the benefits that had been available to [appellee] during the previous policy period.” On January 29,1997, appellee amended his complaint to add a negligence claim against CIGNA and a breach of contract ⁴⁵⁴ claim against JMA for each party’s failure to procure the insurance that appellee requested in his Renewal Application. The Amended Complaint also added a reformation count against both appellants, asking the court to reform the insurance contract to include the language of the navigation policy that existed in the previous year’s policy. The reformation count was premised on an assertion that the Code of Maryland Regulations (“COMAR”), at 09.30.32.02(a), imposed an obligation on CIGNA to “give its insured written notice of any change in a renewal policy which effects an elimination of or reduction in benefits from those that previously existed.” On March 27, 1997, appellee filed a Motion for Partial Summary Judgment as to liability against both defendants. On April 14, 1997, JMA filed a cross-motion for summary judgment as to Count V of the complaint (Reformation of Contract).

On the same day, CIGNA filed its own cross-motion for summary judgment as to all counts lodged against it. The court conducted a hearing on the parties’ motions on May 22, 1997. After oral argument, the court granted JMA’s motion for summary judgment as to Count V of the complaint, but it denied the remaining motions. The court said: This is what I think.

I am going to deny both motions for summary judgment of both defendants. And I will tell you why I am going to do it. Because it is clear to me that you can’t simply send a binder without any — you should say: notice, I am changing it in some fashion. I think that was the purpose of this [COMAR] provision.

In fact, they show it to you. They say the notice can be by way of the following phrase or equivalent: notice, certain coverage is being changed, something is being done. But just to simply run it on and on and on with a binder, I think that is the purpose of this regulation. So under the circumstances I am going to deny those motions for summary judgment.

I doubt your client, Jack Martin, is responsible. I don’t think that this provision itself if intended for an agent But they certainly could be liable under contract or negligence. I don’t think under COMAR.... ⁴⁵⁵ First, Cigna filed a motion for summary judgment which I am going to deny totally. With regard to the Jack Martin Associates, I am going to deny any summary judgment with regard to contract and negligence counts, but I ivill grant it as to COMAR. [3] (Emphasis added).

Trial was set for November 18, 1997. On October 31, 1997, CIGNA filed a motion in limine, seeking to prevent appellee from relying on COMAR in connection with his claims about the policy. CIGNA asserted, inter alia, that the pertinent provision of COMAR applied only to property or casualty insurance policies, not marine insurance policies. Just prior to trial, the court denied CIGNA’s motion.

Dr. Zeitler testified at trial that in each of the four years he obtained insurance through JMA, he received an application from JMA to review, sign, and return with payment. He described the arrangement in the following way: “[M]y understanding was that I applied for [insurance] and Jack Martin, my insurance agent, will look for the insurance for what I applied for. And if for any reason they wouldn’t get it, they would let me know and say, ‘Look, we can’t get that.’ ” Appellee testified that, in the fall of 1994, no one from JMA told him that he was being issued a personal pleasure craft policy as opposed to a fleet policy. Further, appellant testified that he did not know of the navigational restriction on his 1994-1995 policy until his boat sank.

Dr. Zeitler also said that he did not remember receiving an insurance policy from CIGNA after completing his 1994-1995 application. The following colloquy is relevant: [APPELLEE’S COUNSEL]: After you sent your application back to Jack Martin & Associates, do you recall receiving the actual insurance policy shortly after that? ⁴⁵⁶ APPELLEE: I don’t. As I have said in the depositions, I’d been traveling before that date. I came back to Toronto on the 6th of November.

And shortly after the 8th, I think, on the 9th, I traveled again for another three or four weeks. [APPELLEE’S COUNSEL]: Well, did you keep a file on this boat in your office? APPELLEE: Yes. [APPELLEE’S COUNSEL]: And after the boat sunk in September of 1995, did you look at the file to see if there was a copy of the policy in there? APPELLEE: No, I was not able to do that because I was traveling at that time again. [APPELLEE’S COUNSEL]: Well, assuming, Dr. Zeitler, that you had received a copy of your renewal policy, would it have been your practice to sit down and read that policy from cover to cover? APPELLEE: No, I would not have read it. [APPELLEE’S COUNSEL]: Why not?

APPELLEE: Well, because I send off my application, I was happy with what I asked to be .insured for. And as long as nobody told me no, you cannot be insured for this, I was assuming that I was insured for what I applied for. Appellee explained that he traveled “about half of the year.” Mail that arrived at his house while he was away would be sorted by other people in his household and then taken to his office in Toronto, where his secretary would file it. From mid-October to mid-December of 1994, appellee was without a full-time secretary.

Appellee did not know whether the application for insurance came with a policy binder; his practice was personally to review mail that asked him to respond in some way. He testified, however, that if he would have read the navigation restriction on the 1994-1995 policy, he “would have never accepted it”, because it did not provide coverage for the Caribbean islands during the entire term of the policy. The following portion of appellee’s testimony on cross-examination is also relevant: ⁴⁵⁷ [COUNSEL FOR CIGNA]: ... You understood at the time [appellee submitted his application] that the application represented your request to the insurance company for coverage; correct?

APPELLEE: Yes. [COUNSEL FOR CIGNA]: The application was not the statement of your coverage from the insurance company; correct? APPELLEE: That is correct. But I would have expected that they would tell me if they were not effective. [COUNSEL FOR CIGNA]: Well, that wasn’t my question. My question was, you understood that it wasn’t a statement of your coverage.

It wasn’t a statement from the insurance company that we are going to provide you with “x” coverage. You understood that, correct? APPELLEE: I understood that Jack Martin suggested to me that this is the coverage which you wanted to have or you should have. And I looked through it, and I said, ‘Tes, that’s the coverage I want,” and I signed it. [COUNSEL FOR CIGNA]: So it was the coverage that you wanted Cigna to provide to you?

APPELLEE: Yes. [COUNSEL FOR CIGNA]: Okay APPELLEE: And every year Jack Martin gave me that coverage. [COUNSEL FOR CIGNA]: And if you heard nothing back from Jack Martin, you assume that Jack Martin was able to obtain the coverage that was set forth in the application. APPELLEE: That’s right. [COUNSEL FOR CIGNA]: But you didn’t independently verify or determine whether or not that in fact was the case; isn’t that correct? In other words, you didn’t read the policy, you didn’t read the binder. You didn’t read any ⁴⁵⁸ other policy document to see if in fact you got that coverage; isn’t that correct?

APPELLEE: That is correct. * * ❖ [COUNSEL FOR CIGNA]: If you didn’t hear anything from Jack Martin, you thought everything was okay. APPELLEE: Yes. If they told me, “Look, sorry, we couldn’t get that coverage for you,” I would have talked to them. ' I would have said, “Well, how do we do it.” In addition, CIGNA’s counsel introduced as evidence a transcript of a telephone interview of appellee, conducted by Walter Novak, a Cigna Marine Claims Specialist, on September 27, 1995, approximately three weeks after the hurricane. During this conversation, appellant admitted that he had received the 1994-1995 insurance policy.

The following portion of the transcript is relevant: Q. Alright then. Did did you did [sic] get a copy of the Yacht policy though when it was renewed you know under your name solely uh November 1, 1994 is what I am referring to? A. That’s right, that’s right. Q. You did receive that policy?

A. I did receive the policy yes. Q. Did you review it or go over it with your agent or Noreen or anybody or read it? A. No I did not and and and I guess you know that certainly um a fault of mine that I didn’t do that but since since the um uh the uh the premium was was basically the same as I guess it was a little bit higher than the year before. Um you know III just I just didn’t think that that there’s any change in the policy um from the year before.

When confronted with his earlier statement, Dr. Zeitler testified that he based his answers to Novak’s question on the documents he found in his file at the time. The following portion of Dr. Zeitler’s trial testimony is pertinent: ⁴⁵⁹ [COUNSEL FOR CIGNA]: Now, do you remember Mr. Novak asking you whether you got a copy of the policy. APPELLEE: Yes. [COUNSEL FOR CIGNA]: And do you remember what you told him in response? APPELLEE: I told him how I had received the policy.

I told him that my secretary sent it to me while I was traveling. At the time I was not aware where that document came from, whether this document came from my file or whether it came from the insurance company or whether it came from the agent. I only found out subsequently that that insurance policy was the one which Jack Martin sent me on September 11, which was after the accident. And that was the insurance policy which I read.

Both defendants moved for judgment at the close of appel-lee’s case. As to the negligence count, JMA argued that appellee failed to present expert testimony establishing “what the yardstick is” for a professional insurance agent. With regard to the breach of contract claim, JMA contended that appellee failed to establish that JMA ever promised appellee that it would procure an insurance policy identical to the one appellee had the year before. Relying on Twelve Knotts Limited Partnership v. Fireman’s Fund Insurance Co., 87 Md.App. 88 , 589 A.2d 105 (1991), JMA also argued that appellee was contributorily negligent by failing to read the insurance policy.

For its part, CIGNA reiterated its argument regarding the applicability of COMAR, and contended that Dr. Zeitler’s reliance on the Renewal Application to define the actual terms of his insurance policy was misplaced. The court seemed poised to grant appellants’ motions for judgment. Addressing counsel for appellee, the court said: Well, I will hear anything you have to say, because I think I am going to have to grant the motions. I think it is absolutely clear in this case.

I think it is absolutely clear. I don’t know how I could do otherwise. Counsel for appellee convinced the court, however, that a disputed issue of fact precluded judgment; namely, whether ⁴⁶⁰ appellee actually received a copy of the insurance policy prior to the hurricane. Dr. Zeitler’s counsel argued that appellee’s tape recorded statement was unclear about when he received a copy of the policy.

Further, he asserted that a jury could infer, based on the statement, that appellee received a copy of the policy after the damage to the vessel had already occurred. Persuaded by appellee’s arguments, the court reserved ruling on the motions for judgment. Morgan Wells also testified at trial for JMA. He stated that, in October 1994, after the Annapolis Boat Show, he met with representatives of Paradise Bay to review the insurance status of the boats in the Paradise Bay fleet.

During the meeting, he was informed that Dr. Zeitler’s boat would no longer be part of the fleet, because it would be participating in a cruise rally called the “Caribbean 1500.” The Serefe’s current insurance policy was set to expire on November 1, 1994. Accordingly, on or about October 21, 1994, Wells submitted an application to CIGNA to insure the boat. Wells said: I knew I had to act very quickly, and I didn’t want the — I did not want this vessel to be uninsured, any vessel to be uninsured. I do work as a commission-producing agent.

We did — so I felt it was very, very important to get this information together and to get it to this underwriter at Cigna so that they could provide a quote to insure this vessel. Wells testified that he instructed Teresa Kellum, a member of the JMA office staff, to prepare and mail a binder, application, and invoice regarding the Sefere’s 1994-1995 coverage. The videotaped deposition of Teresa Kellum was also presented to the jury as part of JMA’s case. Through Kellum, JMA introduced as evidence a “Contact Record” that chronicled JMA’s activity regarding the Serefe.

Kellum stated that she made a handwritten entry on that document, dated “10 28 94”, which said: “Sent insure[d] app invoice renewal letter Binder”. Based on her notation, Kellum surmised that she sent an application, renewal, invoice, and a binder to Dr. Zeitler on October 28, 1994. On cross-examination, however, ⁴⁶¹ Kellum admitted that she did not independently remember sending the binder to Dr. Zeitler. Moreover, her records did not indicate that she sent the CIGNA policy to him.

Patricia Curley, a yacht underwriter for CIGNA, also testified at trial. According to Curley, a commercial fleet policy is evaluated under different underwriting guidelines than a private pleasure-craft policy. The following portion of Curley’s testimony is pertinent: [COUNSEL FOR CIGNA]: Now before [the 1994-1995] policy came into existence, what type of policies were issued to Dr. Zeitler? CURLEY: The policy that was issued prior to this policy was a fleet policy, which was considered commercial because it allowed the fleet people covered by that policy to charter out their vessel. [COUNSEL FOR CIGNA]: And was this [1994-1995] windjammer policy the first one issued by Cigna to Dr. Zeitler?

CURLEY: Yes. [COUNSEL FOR CIGNA]: All the prior policies were a fleet policy? CURLEY: Were fleet policies. [COUNSEL FOR CIGNA]: How did the policies differ, if at all, between the two types of policies? CURLEY: Well, Paradise Bay was considered a commercial policy. So — and it had probably — I don’t know how many insureds on it, but it was more than one insured under the name Paradise Bay.

And this is just for an individual, an individual who’s just using it for his own use. So it’s considered a private pleasure policy. [COUNSEL FOR CIGNA]: Were the two types of policies evaluated differently?? CURLEY: They were evaluated differently. ⁴⁶² [COUNSEL FOR CIGNA]: How so? CURLEY: Well, they’re considered two different exposures. [COUNSEL FOR CIGNA]: Are there separate underwriting guidelines for each type of policy?

CURLEY: Yes. [COUNSEL FOR CIGNA]: Was this windjammer casualty policy issued for the ’94/’95 policy period considered a renewal from Cigna’s perspective? CURLEY: No. It was considered a new piece of business. At the close of evidence, appellants renewed their motions for judgment. The court again reserved ruling.

On November 20, 1997, the jury found in favor of appellee on all counts, and awarded him $200,329.74 in damages. We will include additional facts in our discussion of the issues. Discussion Standard of Review Appellants contend that they were entitled to judgment as a matter of law. Our review of the trial court’s denial of appellants’ motions for judgment, and their motion for judgment notwithstanding the verdict, is quite narrow.

Md. Rule 2-519(b), which governs the grant of a motion for judgment, provides: (b) Disposition. When a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facts and to render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. When a motion for judgment is made under any other circumstances, the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made. (Emphasis added).

Thus, “the court’s determination should be upheld ‘ “[i]f there is any evidence, no matter how slight, ⁴⁶³ legally sufficient to generate a jury question.” ’ ” N.B.S., Inc. v. Harvey, 121 Md.App. 334, 341 , 709 A.2d 162 (1998) (citations omitted); see Nationwide Mut. Fire Ins. Co. v. Tufts, 118 Md.App. 180, 189 , 702 A.2d 422 (1997), cert. denied, 349 Md. 104 , 707 A.2d 89 (1998). I. Expert Testimony JMA asserts that it was entitled to judgment as to the negligence claim, because Dr. Zeitler failed to offer expert testimony regarding the duty of care JMA owed to its client as a professional insurance broker.

Essentially, we must determine whether the evidence presented by appellee regarding JMA’s duty toward Dr. Zeitler was “ ‘beyond the ken of the average layman.’ ” Hartford Acc. and Indem. Co. v. Scarlett Harbor Assocs. Ltd. Partnership, 109 Md.App. 217, 257 , 674 A.2d 106 (1996), aff'd, 346 Md. 122 , 695 A.2d 153 (1997) (quoting Virgil v. “Kash N’ Karry” Service Corp., 61 Md.App. 23, 31 , 484 A.2d 652 (1984), cert. denied, 302 Md. 681 , 490 A.2d 719 (1985)). In our view, it was not.

We explain. Maryland Rule 5-702 provides that “[ejxpert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.” In some circumstances, expert testimony is required in order to prevail. See Joseph F. Murphy, Jr., Maryland Evidence Handbook, § 1401 at 703 (2d ed.1993) (stating that “When substantive law requires expert testimony to generate an essential element of a claim or defense, the party who bears the burden of production on that issue will lose on a motion for judgment unless testimony is presented on the critical issue”). Expert testimony is generally required “ ‘when the subject of the inference [presented to the jury] is so particularly related to some science or profession that it is beyond the ken of the average layman.’ Expert testimony is not required, however, on matters of which the jurors would be aware by virtue of common knowledge.” Scarlett Harbor Assocs., supra, 109 Md.App. at 257 , 674 A.2d 106 (citation omitted). ⁴⁶⁴ Often, allegations of professional malpractice require expert testimony, because the intricacies of professional disciplines generally are beyond the “ken of the average layman.” What the Court said in Crockett v. Crothers, 264 Md. 222, 224-25 , 285 A.2d 612 (1972), is pertinent here: In an action against a professional [person] for malpractice, the plaintiff bears the burden of overcoming the presumption that due skill and care were used.

Although there may be instances in which the negligence is so gross or that which was done so obviously improper or unskillful as to obviate the need for probative testimony as to the applicable standard of care, (and here we proceed on the assumption that this is not such a case), generally there must be produced expert testimony from which the trier of fact can determine the standard of skill and care ordinarily exercised by a professional [person] of the kind involved in the geographical area involved and that the defendant failed to gratify these standards. (Citations omitted). Nevertheless, the Crockett case illustrates that expert testimony is not always required, even when the professional act at issue is relatively complex. Crockett involved an allegation of negligence by an engineer who produced plans for the City of North East as part of a private contract with the city.

By all accounts, the engineer’s plans failed to indicate that a water main in a residential neighborhood was broken. Unaware of the danger, a construction crew inadvertently caused the water main to flood the home of a local couple, who sued the contractor and the engineer. 264 Md. at 223 , 285 A.2d 612 . Without the benefit of expert testimony, the jury concluded that the engineer’s failure to “ ‘exhaust all [reasonable] possibilities’ of discovering that the water main was where it was” violated the “normal and customary standard of care” required of him as a professional engineer. Id. at 226 , 285 A.2d 612 (quoting Mr. Crockett).

On appeal, the engineer claimed that expert testimony was required in order to define the standard of care. The Court ⁴⁶⁵ disagreed, concluding that the jury did not need an expert in order to determine if the engineer was negligent. The Court noted, in particular, that the engineer could have asked city officials whether they had a map showing subsurface pipes in the area. Id. at 226 , 285 A.2d 612 .

Moreover, the evidence established that the engineer knew about a previous set of plans drawn by another engineering company that showed the broken main. Id. In the face of this evidence, expert testimony was not required. We are aware of one reported Maryland opinion addressing the question of whether expert testimony is necessary to support an allegation of negligence against a private insurance broker.

In Lowitt and Harry Cohen Ins. Agency, Inc. v. Pearsall Chemical Corp. of Md., 242 Md. 245 , 219 A.2d 67 (1966), an insurance broker advised its client, the Pearsall Chemical Corporation, that its “public liability” policy was about to expire. Id. at 248 , 219 A.2d 67 . At the recommendation of the broker, the company agreed to purchase insurance from a foreign company.

Thereafter, the broker provided Pearsall with a binder indicating that the company was insured by “Underwriters at London.” Id. Based on the broker’s representations, the company believed it was insured by Lloyd’s of London. In truth, “Underwriters at London” did not exist, and the broker had failed to procure a liability policy for its client. On appeal, the broker argued that “the degree of skill and diligence required of [him] could only be established by expert testimony as to the degree of skill and diligence usually employed by brokers” in similar circumstances.

Id. at 254 , 219 A.2d 67 . The Court of Appeals rejected the broker’s argument, adopting as a standard of care the statement of Professor Couch relating to insurance brokers: ‘An agent, employed to effect insurance, must exercise such reasonable skill and ordinary diligence as may fairly be expected from a person in his profession or situation, in doing what is necessary to effect a policy, in seeing that it effectually covers the property to be insured, in selecting the insurer and so on.’ ⁴⁶⁶ ‘As a general rule, a broker or agent who, with a view to compensation for his services undertakes to procure insurance on the property of another, but fails to do so with reasonable diligence, and in the exercise of due care, or procures a void or defective policy * * * is personally liable to his principal for any damages resulting therefrom. In fact, a broker taking money to secure insurance, who unjustifiably fails to secure the same, or to make an effort to do so, becomes liable, in case of loss, to pay as much of the same as would have been covered by the policy had it been secured.’ Lowitt, 242 Md. at 254 , 219 A.2d 67 (quoting Couch, Insurance 2d, § 25:37). The Court noted that the broker “undertook ... for consideration ... to obtain for [the company] an effective public liability policy” and then “failed to produce any policy whatsoever.” Id. at 255, 219 A.2d 67 .

Under such circumstances, the Court determined that an expert was not needed to establish the broker’s breach of duty; none of the broker’s misdeeds were as complicated as they were egregious. Furthermore, the Court recognized that “it does not require an expert in the insurance field to see, even by a most casual examination, that Lloyd’s of London was not a party” to the insurance binder. Id. “[A]ny insurance broker, by the exercise of the most meager care, could and should have ascertained” that “Underwriters at London, England” did not exist. Id. at 256 , 219 A.2d 67 .

Cases from other jurisdictions demonstrate that “[n]o clear standard has evolved for determining whether a particular negligent act sufficiently involves an agent’s professional skills so as to require the use of expert testimony.” Lori J. Henkel, Necessity of Expert Testimony to Show Standard of Care in Negligence Action Against Insurance Agent or Broker, 52 A.L.R. 4th 1232, 1234 (1987 & 1998 Supp.). Nevertheless, the cases generally hold that when a broker fails to procure insurance that is specifically requested, an expert is not ⁴⁶⁷ needed in order to prove negligence. Id.; see, e.g., Johnson & Higgins of Alaska, Inc. v. Blomfield, 907 P.2d 1371 (Alaska 1995)(holding that expert testimony was not required when an insured’s broker failed to acquire insurance that covered mold in the ventilation system of a commercial office building, despite the insured’s request); BSF, Inc. v. Cason, 175 Ga. App. 271 , 333 S.E.2d 154 (1985)(holding that an expert is not required when insurance broker allegedly failed to record accurately the insured’s answers to questions on the application, resulting in denial of coverage for the insured).

JMA contends that this case involved a complex issue about “whether Jack Martin had a duty to procure additional coverage for Dr. Zeitler’s boat during hurricane season.” JMA ignores the fundamental nature of Dr. Zeitler’s negligence claim. Dr. Zeitler merely alleged that JMA negligently failed to acquire the insurance as requested on the application form, and as previously provided. Instead, JMA procured a policy different from the one the year before, and different from the one described in the “renewal application”, and then failed to inform appellee that the new policy had different terms than the previous year’s policy. Appellee did not allege, either in his complaint or at trial, that JMA should have procured “additional coverage.” Therefore, an evaluation of appellee’s negligence claim did not require acute insight into the vagaries of marine insurance.

Moreover, appellee’s theory was not contingent on the regulatory notice provision of COMAR § 09.30.32.02(a), nor was it contingent on a showing that JMA had an affirmative obligation to obtain insurance without being asked to do so. JMA relies principally on two foreign cases, each of which is distinguishable on its facts. In Atwater Creamery Co. v. Western Nat. Mut.

Ins. Co., 366 N.W.2d 271 (Minn.1985), a long-time insurance broker for Atwater Creamery procured for his client an insurance policy that included coverage for burglary, but excluded coverage if no sign of forcible entry was present. Some time later, burglars stole $15,587.40 worth of chemicals from one of the Creamery buildings. The burglars left no sign of forced entry, however; they gained access ⁴⁶⁸ to the building through a side door that had been left ajar.

Consequently, the insurance company denied the company’s claim. The Creamery then sued the broker, alleging that the broker had a duty to inform him of the “gap in coverage” created by the exclusionary clause. But the Creamery failed to introduce expert testimony as to a broker’s duty to evaluate that gap in the context of a commercial insurance policy. The Supreme Court of Minnesota held that “[t]he standard .of care issue in this case goes beyond what the agent should do when clearly requested; it goes to the broader issue of affirmative duties where no request has been made.” Id. at 279 .

Therefore, it affirmed the trial court’s decision to grant a directed verdict in favor of the broker. Unlike Atwater, however, JMA’s negligence does not turn on whether it correctly evaluated the insurance ramifications of Dr. Zeitler’s Caribbean travel plans. Moreover, whether a broker must anticipate the possibility of a burglary with no signs of forcible entry is a complex question that involves discerning how many of the virtually infinite number of potential risks a broker must anticipate. Humiston Grain Co. v. Rowley Interstate Transp.

Co., Inc., 512 N.W.2d 573 (Iowa 1994), is similarly inapposite. There, Humiston Grain Co. (“Humiston”) leased a trailer from Row-ley Interstate Transportation Co. (“Rowley”). Humiston pulled the leased trailer with its own semitractor, which was driven by a Humiston employee. Unfortunately, the truck and the trailer were involved in a collision with a train, which spawned a dispute as to who was liable for damage to the leased trailer.

In the wake of the accident Humiston sued its insurance broker, alleging negligence, based on the broker’s assurances before the accident that Rowley, and not Humi-ston, was required, under the terms of the lease, to carry collision insurance on the trailer. After judgment was entered in favor of Humiston, the broker appealed, complaining that Humiston failed to introduce expert testimony as to the standard of care required of a broker. The Iowa Supreme Court held that “where an insurance agent is alleged to have breached a professional duty, if the error or omission extends beyond ⁴⁶⁹ the agent’s mere failure to procure coverage requested and paid for by the client, proof of the standard of care applicable to the circumstances must be established by expert testimony.” Id. at 576 . The above cases suggest that the duty to render a professional judgment regarding a subrogation clause in a commercial lease is beyond the ken of the average juror.

In contrast, the issue concerning the duty to inform a client that the coverage actually obtained differs from what was sought is, ordinarily, not beyond the understanding of the average juror. To be sure, JMA’s negligence was not as egregious as that of the broker in Lowitt . Nevertheless, while it may differ in degree, the gist of the contention in Lowitt is the same as the complaint lodged by Dr. Zeitler — a failure to procure the insurance coverage requested and promised. Accordingly, we perceive no error in the trial court’s denial of appellant’s motion for judgment on this ground.

II

COMAR Appellee’s negligence and breach of contract claims against CIGNA were grounded on an allegation that CIGNA failed to comply with COMAR 09.30.32, because it did not notify appel-lee that his “renewal” policy for 1994-1995 contained a reduction or change in benefits. At trial, CIGNA adamantly opposed the view that COMAR governed the policy. In our view, CIGNA’s assertion that the notice provisions of COMAR did not apply to the Serefe policy is without merit. Title Nine of COMAR contains regulations promulgated by the Insurance Division of the Department of Licensing and Regulation.

At the time of the loss, COMAR 09.30.32 provided, in pertinent part: 4 Chapter 32 Addition, Reduction, or Elimination in Coverage Notice Requirement .01 Purpose. ⁴⁷⁰ Often when a property and casualty policy is renewed, coverage is reduced or eliminated or deductibles are increased. There may also be automatic increases in policy limits pursuant to construction or inflation indices. The purpose of these regulations is to require all property and casualty insurers who intend to reduce or eliminate coverage, change a deductible or increase policy limits to clearly notify the policyholder of the action that has been taken. .02 Notice Requirement. A. After July 30,1981, if any insurer upon renewal or by endorsement initiates any change in any primary property or casualty policy, which is not at the request of the insured (except for motor vehicle liability insurance to which Article 48A, § 240AA is applicable), which effects an elimination of or reduction in benefits including any increase in deductible, the insurer shall give the insured, in general terms, written notice of the change in the policy.

The notice may be mailed or delivered to the insured by the insurer or its authorized representative, in which case the insurer shall provide its authorized representative with the appropriate notice. This notice can be by way of the following phrase or its equivalent: Notice: Certain coverage in this policy has been eliminated or reduced, or a change has been made in the deductible. The description of the change in coverage is as follows: * * * .03 Penalties. If any insurer issues a policy in this State in which a change in coverage or deductible pursuant to Regulation .02A occurs and no notice as required above is given to the policyholder, then the policy with adjustment in premium shall be treated as being in effect without the change or reduction in coverage or deductible when a claim occurs which is affected by the change. ⁴⁷¹ As we noted, On May 22, 1997, the court granted partial summary judgment in favor of JMA as to Count III (reformation of contract), concluding that COMAR 09.30.32.02 did not apply to