Sadler v. Loomis Co.

³⁷⁷ HOLLANDER, Judge. This unfortunate case has its genesis in a tragic automobile accident that occurred on May 13, 1996, involving appellant Evelyn Sadler, an elderly driver, and Timothy Prophet, a motorcyclist. As a result of injuries sustained in the accident, Prophet’s leg was amputated. At the time of the accident, Sadler had an automobile liability insurance policy that provided maximum coverage of $100,000.

The policy was procured by The Loomis Company (“Loomis”), appellee, an insurance agency that had procured insurance for appellant for several years. When Prophet filed a $10,000,000 negligence suit against Sadler, it became painfully evident that Sadler was woefully underinsured. 1 About one month after the vehicular accident, on June 20, 1996, Sadler conveyed her waterfront home to her two siblings for $10.00. At that time, Sadler’s home had a fair market value of $650,000. When Prophet learned of the transfer, he lodged a fraudulent conveyance suit against Sadler and her siblings, seeking to set aside the transfer.

In 1999, Sadler settled both of Prophet’s cases for almost $1,000,000, a sum well in excess of her policy limits; her insurer, USF & G, contributed the amount of money available under the policy. Thereafter, appellant instituted suit against Loomis for $2,000,000, claiming that Loomis was negligent because it knew of Sadler’s financial position, yet failed to provide her with periodic quotes as to the cost of additional protection, or sufficient information to enable her to make an informed decision as to an appropriate level of liability cover ³⁷⁸ age. Appellant sought to recover the value of her settlement with Prophet as well as damages for mental anguish. Loomis subsequently moved for summary judgment, asserting that it did not owe appellant a duty to counsel her regarding the appropriate amount of automobile liability coverage, and she was not entitled to compensatory damages for mental anguish.

After the court granted Loomis’s motion, this appeal followed. Appellant presents three questions for our consideration: I. Did the lower court err in granting summary judgment and thereby determining, as a matter of law, that an insurance agent owed no duty to his client?

II

Did the lower court err in determining as a matter of law that plaintiff Evelyn Sadler was not damaged when her home was transferred to a motorcyclist that she had injured as part of the settlement of the claims filed by the motorcyclist?

III

Did the lower court err when it disregarded plaintiff Evelyn Sadler’s sworn testimony concerning the physical manifestations of her emotional distress and determined as a matter of law that emotional damages were not compensable? For the reasons set forth below, we conclude that Loomis did not have a continuing, affirmative tort duty to render unsolicited advice to- Sadler concerning the advisability or availability of liability coverage in a greater amount than was selected by Sadler. Rather, “ ‘the onus is ... squarely on the insured to inform the agent of the insurance he requires.’ ” Charlin v. Allstate Insurance Co., 19 F.Supp.2d 1137, 1142 (C.D.Cal.1998) (citation omitted). Therefore, we shall affirm.

FACTUAL SUMMARY Evelyn Sadler was born on May 11, 1919, and she has been driving since 1937. Sadler never married and, at the time of the accident in 1996, she still resided in the family home, located at 824 Bywater Road in Annapolis, where she had lived since 1951. Until her death in 1990, appellant’s mother ³⁷⁹ resided in the same house. When Sadler’s mother died, Sadler became the sole owner of the home.

Along with her brother and sister, Sadler also owned three other real properties, which were sold in the 1990’s. Following Sadler’s graduation from high school, she embarked on a course of study in commercial bookkeeping, shorthand, and math. Sadler’s skills were put to use during the 50 years that she worked in the family business, Sadler’s Hardware, located in Annapolis. Appellant’s duties at the business included keeping the books, payment of bills, and handling loan payments.

When Sadler’s Hardware incorporated in 1977, long after the death of appellant’s father in 1943, appellant, her mother, and her siblings became directors, stockholders, and corporate officers. Sadler’s Hardware procured its business insurance through E. Churchill Murray. Later, that agency became known as Murray, Martin & Olsen (“Murray”). Although appellant was not primarily responsible for handling the insurance needs of the business, she testified at her deposition that she reviewed each insurance policy and verified that the amount of coverage corresponded to what had been discussed with the insurance agency.

At about the time that Sadler’s Hardware went out of business in 1987, Loomis acquired the Murray agency. Since 1941, Sadler has continuously utilized the same insurance agency that was used by the family business. Thus, for over 50 years, appellant was a customer of both Murray and its successor, Loomis. Indeed, since the time that Loomis acquired Murray, appellant obtained her homeowner’s insurance and automobile liability insurance from Loomis.

Nevertheless, appellant never had a “special person” at Loomis with whom she dealt for her insurance needs. Appellant asserts in her brief that, “[o]nce The Loomis Company took over, there were no more personal meetings” with an insurance agent. Rather, Sadler acknowledges that she “had contact” with Loomis only “when she had a question.” At her deposition, appellant recalled various times when she had occasion to contact a representative of Loomis. After the ³⁸⁰ death of Sadler’s mother in 1990, for example, appellant notified Loomis to remove her mother as an insured.

In 1996, Sadler telephoned Carol Scaffe, a Loomis agent, and instructed her to remove certain items of silver from coverage under her homeowner’s policy, because Sadler had distributed those particular pieces to members of her family and no longer owned them. On another occasion, appellant asked Scaffe to correct an error as to the year of construction of her home. At the time of the underlying accident, Sadler had replacement coverage for her home in the amount of $231,000. In addition, Sadler had coverage of $23,825 for her silverware.

With respect to the $100,000 coverage under appellant’s automobile liability insurance, Sadler said at her deposition: “I assumed I had enough.” Sadler acknowledged that she understood that if she was involved in an automobile accident for which she was deemed at fault, her liability insurer had no obligation to pay more than the stated policy limit of $100,000, regardless of the actual amount of damages. But, Sadler maintained that she did not realize that she would be liable for any shortfall. The following deposition testimony is relevant: [APPELLEE’S ATTORNEY]: You paid this [automobile insurance premium] according to your ... handwritten notation on August 3, '95, by the check number set forth there, correct? [SADLER]: Yes. [APPELLEE’S ATTORNEY]: That is in your handwriting? [SADLER]: Yes. * * * [APPELLEE’S ATTORNEY]: You knew when you paid this bill that the liability limit was $100,000? [SADLER]: Yes. [APPELLEE’S ATTORNEY]: You knew that if you were in an accident and it was your fault, USF & G would pay no more than $100,000? [SADLER]: Yes. ³⁸¹ [APPELLEE’S ATTORNEY]: You knew that if you were in an accident and the damage or judgment was greater than $100,000, you would [have] to pay any excess? [SADLER]: No. [APPELLEE’S ATTORNEY]: Okay. Let me ask you, then, who would pay the excess in that case.

If there was an accident in which you were at fault and there was an award or a judgment greater than $100,000, who would pay the amount over $100,000?.... [SADLER]: I never thought about it because I never dreamed that I would be in an accident like that. [APPELLEE’S ATTORNEY]: Okay. [SADLER]: You can see, they gave me a safe driver renewal. [APPELLEE’S ATTORNEY]: I understand. I understand. Did you ever discuss— [SADLER]: $100,000 is a lot of money to me. [APPELLEE’S ATTORNEY]: Okay. You’ll agree with me that when you paid this bill [on August 3,1995] that you had to know that if there was an awful accident in which you were at fault and the damages were over $100[,000] that USF & G would only pay the $100,000, correct? [SADLER]: I never dreamed that it would be that much.

I never dreamed that I would be in an accident that would cost that much. [APPELLEE’S ATTORNEY]: Okay. But you agree that the limit that USF & G was contractually obliged to pay was only $100,000? [SADLER]: Yes. From time to time over the years, Sadler received written correspondence from Loomis pertaining to her various insurance policies. For example, Sadler received letters from Loomis dated February 17, 1993, and August 5, 1993, which requested, inter alia, that she contact Loomis if she had ³⁸² questions about her automobile coverage.

The letter of February 17,1993 stated, in relevant part: RE: AUTO POLICY PPA10147968609 Dear Ms. Sadler: [USF & G] is asking that the enclosed Medical Report be completed and signed by your family physician and returned to our office as soon as possible. This in no way reflects on your driving ability but is something that is required by the companies as you get older. Should you have any questions regarding this request or on your policy coverages, please feel free to contact our office. (Emphasis added).

Similarly, the letter of August 5, 1993, stated, in relevant part: RE: Automobile Insurance Dear Ms. Sadler: I am pleased to enclose the renewal of your Automobile Insurance, which renews in August.... This extends your coverage for the next year. As you can see, USF & G has changed their policy and billing format. A cover letter from the Company is also enclosed giving you a further explanation.

Please take a few minutes to review your policy and coverages, and if there are any questions, please let us know. (Emphasis added). Some of the letters from Loomis should have alerted Sadler generally to the issue of the adequacy of her coverage. For example, Sadler received letters from Loomis dated September 16, 1993, and September 21, 1994, concerning the renewal of the fire insurance for her real property, in which Loomis expressly mentioned the amount of coverage.

In contrast to the correspondence concerning the automobile liability policy, Loomis specifically suggested that Sadler consider the adequa ³⁸³ cy of the policy limits. The letter stated: “If you feel this limit is not sufficient, or if any other changes are necessary, feel free to contact our office.” Similarly, in a letter dated November 17, 1994, concerning Sadler’s homeowner’s policy, Loomis expressly suggested that appellant consider whether the amount of her coverage was appropriate, stating: In reviewing your Homeowners Insurance policy, which will be renewing in February, I wanted to offer a suggestion to make sure you are carrying the proper limit of coverage on your scheduled silverware. It appears no changes, deletions, additions, or updates have been done to your schedule in many years. It is always a good idea to look in to this every few years to make sure the values stay accurate.

I am sure, should a loss occur, you would want to be properly covered. I look forward to hearing from you regarding this matter, and with any other questions you may have relating to your insurance coverages. (Emphasis added). 2 Additionally, by letter dated March 14, 1996, Loomis advised Sadler of an increase in the rates for the renewal of her homeowner’s policy. Loomis wrote, in part: There has been an increase in homeowners rates that is reflected in your February renewal.

We can discuss this increase and also transfer the coverage to another company if you would like. ³⁸⁴ Please do not hesitate to contact this office for a review of your coverage and premium prior to the expiration date. On June 20, 1996, about a month after the accident, appellant conveyed her Bywater Road home to her siblings, in fee simple, for just $10.00. Pursuant to a contemporaneous Trust Agreement, the parties agreed that appellant would reside in the home for five years, until June 19, 2000. In a report of August 2, 1996, the home was appraised as of June 20, 1996, and had a fair market value of $650,000.

Yet, as we noted, the house was insured for less than $250,000 at the time of the accident. Appellant conceded that she never gave Loomis a property appraisal prior to the accident. On the other hand, the record does not reflect that Loomis ever asked for one or suggested that Sadler obtain one. Moreover, prior to the accident, appellant never asked Loomis to increase the insurance coverage for the house to reflect its actual market value.

In early 1999, Prophet settled his fraudulent conveyance action with appellant and her siblings, and he settled his tort suit with appellant. As we noted, the total settlement was valued at almost $1,000,000. Appellant’s automobile liability insurer paid Prophet the maximum sum available under Sad-ler’s policy, and appellant paid Prophet $210,000 in cash. Additionally, the parties executed a Consent Judgment, setting aside the conveyance of the house from Sadler to her siblings, and vesting title with Prophet’s attorney, as trustee for Prophet.

In accordance with the agreement, Sadler is permitted to remain in the house until December 15, 2001. On May 5, 1999, following Sadler’s settlement with Prophet, Sadler filed suit against Loomis. She alleged, inter alia, that she “relied on the services of the insurance brokers to select the appropriate insurance coverages and companies for her protection.” Further, she alleged that Loomis knew or should have known of Sadler’s financial position, the value of her house, and that she was underinsured. In addition, Sadler asserted: ³⁸⁵ 11.

Defendant The Loomis Company had a duty to reasonably evaluate Evelyn E. Sadler’s financial exposure and insurance needs. Had [appellee] reasonably evaluated [appellant’s] financial exposure, it should have secured automobile liability insurance coverage in an amount sufficient to protect [appellant’s] property from attachment.... 12. [Appellee] acted in a negligent fashion in failing to secure appropriate automobile insurance coverage limits by: (a) Failing to recognize [appellant’s] financial exposure; (b) Failing to advise, warn and counsel [appellant] as to her insurance needs; (c) Failing to monitor [appellant’s] financial situation as to recognize that she possessed an insufficient amount of insurance coverage to reasonably protect her property; (d) And in other fashions to be shown at trial. 13. As a direct and proximate cause of [appellee’s] negligence, [appellant’s] motor vehicle remained insufficiently insured and [appellant] was forced to convey her home and substantially all of her cash to settle the litigation with Timothy A. Prophet and to pay for legal counsel to assist her in the defense of her property. She also suffered mental anguish in being forced to give up her home of almost fifty (50) years and to divest herself of cash which otherwise would have brought security to her for the balance of her life.

On July 3, 2000, after the close of discovery, Loomis moved for summary judgment. Appellee asserted that, as a matter of law, an insurance agent does not owe a continuing duty to an insured to render advice about the appropriate amount of liability coverage. Loomis also contended that there was no merit to Sadler’s claim for damages based on the transfer of her residence to Prophet as part of the settlement, because Sadler no longer owned the home at that time, having conveyed it to her siblings one month after the accident. Further, Loomis argued that Sadler was not entitled to recover damages for “mental anguish,” because such damages are not compensable for mere loss of property, absent a showing of ³⁸⁶ fraud, malice, or intentional conduct, and because Sadler manifested no objective signs of mental distress.

Sadler opposed the motion. At the motion hearing on July 24, 2000, Sadler never claimed that she did not understand the purpose of liability insurance. 3 Nor did she assert that she did not know she could request an increase in coverage. Moreover, Sadler knew that her home was protected for approximately $200,000, a sum twice the amount of her automobile liability coverage. In support of the negligence claim, appellant’s counsel proffered the deposition testimony of two experts: Vincent Boy-lan, Jr., an executive with a Maryland insurance brokerage firm, and Stanley Lipshultz, Esquire, an attorney with a special knowledge of insurance brokerage and agency.

Through counsel, appellant also proffered two duties of care owed by an insurance agent or broker to the insured. First, an insurance broker or agent has a duty to provide the insured with sufficient information to enable the insured to determine an appropriate amount of insurance to protect the insured’s assets. Second, the insurance agent or broker has a duty to provide periodic quotes regarding the cost of additional or increased coverage. Appellant’s attorney stated, in relevant part: I have enlisted the aid of two experts.

One Vincent Bo[y]lan who is a senior vice president of an insurance agency, 25 years or more in practice who says that ... there is a duty, the standard of care for insurance agents in Maryland, is that they do two thing[s]. First, they counsel, they educate so that someone can be put on notice that they even have a question to ask. That is, until we are given at least some information to understand that there is a relationship between the liability coverage that we have and the property that we want to ³⁸⁷ protect, until we have the information we can’t even ask the question. How much coverage should I have.

You’ll get people responding by saying, if you ask them how much liability coverage they have, they will say they have full coverage which of course, has no meaning. So until they’re at least given some indication, some reason to even ask the question so that they can know that the reason that you have liability insurance is to protect your life savings, to protect the real estate that you own, until they’re given some counsel in that regard they can’t even ask the right question. So that’s duty number one. And duty number two is that on a periodic basis the insurance agent is to provide quotes for extra coverage so that even in that fashion it may encourage a question to be asked.

If once a year when you get your policy it says, this is the amount of coverage that you have but for only $200 more which of course, was the cost for that extra insurance in this case you could have a million dollars worth of coverage. At least under those circumstances it may peak [sic] an inquiry. Arid Mr. Bo[y]lan says that there is a requirement on a periodic basis to provide those quotes for how much it would cost for extra coverage. Second expert is Stanley Lipshultz....

He was a practicing attorney for over 25 years, his practice was limited to insurance work. He also ... has a number of designations in the insurance field, he is a charter property underwriter. He teaches classes to the independent insurance agents association which is the association to which the Loomis Company belongs. And one of the things that he teaches is that you have the obligation first to counsel your customers along the lines that I have outlined and second, to provide them on a periodic basis with quotes for how much it would cost to buy increased limits.

And both of them, both Bo[y]lan and Lipshultz have testified that it was the standard in the industry at that time for somebody with assets as Ms. Sadler. Because recognize the Loomis Company not only insured Ms. Sadler’s automo ³⁸⁸ bile and her home but ... the structure itself was worth $200,000 because that’s what they insured the structure for. (Emphasis added). At the conclusion of the hearing, the court granted summary judgment in favor of Loomis as to Sadler’s claim for mental anguish, but held the remaining issues sub curia.

The court granted summary judgment in favor of Loomis on the remaining claims on July 31, 2000. In its Order, the court stated, in relevant part: 1. Summary judgment is hereby entered in this case in favor of Loomis against Sadler, since there is no dispute of material facts and since Loomis is not liable to Sadler for negligence on account of the amount of liability insurance contained in her automobile policy at the time of her May 13,1996 accident. 2. The largest element of damage claimed in the case is for alleged loss of the 824 Bywater Road home which is claimed to have had a fair market value of $650,000.

The Court also grants summary judgment as to this element of damage since Ms. Sadler did not own title to the home at the time of the January 27,1999 settlement with Timothy A. Prophet, and since as a result of the settlement she obtained a right to remain in the home until December 15, 2001, which is approximately six months longer than she would legally have been entitled to reside there under the June 20, 1996 Trust Agreement and Deed which conveyed legal title to her brother and sister, as trustees. 3. Ms. Sadler’s Complaint also claims damages for mental anguish. Damages for mental anguish are not recoverable in a case such as this as a matter of law, and summary judgment is therefore also granted as to this element of damages. At the end of its Order, the court made the following comment: During the hearing on the Motion for Summary Judgment, the Court raised the question of whether, based on [appellant’s] proffer regarding the basis of her experts’ ³⁸⁹ opinions, it was possible that the trial judge may strike the expert testimony as not having a sufficient factual basis to support the experts’ opinions.

Although this Court believes that may be an eventual possibility, that fact played no part in the Court’s decision to grant Summary Judgment. We shall include additional facts in our discussion. STANDARD OF REVIEW Maryland Rule 2-501 establishes a two-part test for summary judgment. “In deciding a motion for summary judgment ... the trial court must decide whether there is any genuine dispute as to material facts and, if not, whether either party is entitled to judgment as a matter of law.” Bagwell v. Peninsula Reg’l Med. Ctr., 106 Md.App. 470, 488 , 665 A.2d 297 (1995), cert. denied, 341 Md. 172 , 669 A.2d 1360 (1996); see Okwa v. Harper, 360 Md. 161, 178 , 757 A.2d 118 (2000); Beatty v. Trailmaster Products, Inc., 330 Md. 726, 737-38 , 625 A.2d 1005 (1993); Philadelphia Indem.

Ins. Co. v. Maryland Yacht Club, Inc., 129 Md.App. 455, 465 , 742 A.2d 79 (1999). In order to defeat a claim for summary judgment, the party opposing the motion must produce evidence demonstrating a genuine dispute of material fact. Scroggins v. Dahne, 335 Md. 688, 691 , 645 A.2d 1160 (1994); Berringer v. Steele, 133 Md.App. 442, 470 , 758 A.2d 574 (2000).

A material fact is one that will alter the outcome of the case, depending upon how the factfinder resolves the dispute. King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985); Faith v. Keefer, 127 Md.App. 706, 734 , 736 A.2d 422 , cert. denied, 357 Md. 191 , 742 A.2d 521 (1999). Moreover, mere general allegations or conclusory assertions of a disputed fact will not suffice. Beatty, 330 Md. at 738 , 625 A.2d 1005 .

Rather, the party who opposes summary judgment must present the court with facts “ ‘in detail and with precision.’ ” Philadelphia Indem. Ins. Co., 129 Md.App. at 465 , 742 A.2d 79 (quoting Beatty, 330 Md. at 737-38 , 625 A.2d 1005 ). The trial court must resolve all factual disputes, including reasonable inferences drawn from the facts, in favor of the ³⁹⁰ non-moving party.

Frederick Rd. Ltd. P’ship v. Brown & Sturm, 360 Md. 76, 94 , 756 A.2d 963 (2000); Dobbins v. Washington Suburban Sanitary Comm’n, 338 Md. 341, 345 , 658 A.2d 675 (1995); Electronics Store, Inc. v. Cellco P’ship, 127 Md.App. 385, 395 , 732 A.2d 980 , cert. denied, 356 Md. 495 , 740 A.2d 613 (1999). Moreover, in deciding the motion, the trial court may not determine the credibility of witnesses. Impala Platinum, Ltd. v. Impala Sales (U.S.A.), Inc., 283 Md. 296, 326 , 389 A.2d 887 (1978); Thacker v. City of Hyattsville, 135 Md.App. 268, 286 , 762 A.2d 172 (2000).

Like the trial court, we must determine whether there are any genuine disputes of material fact. Honaker v. W.C. & A.N. Miller Dev. Co., 285 Md. 216, 230-31 , 401 A.2d 1013 (1979); Impala Platinum, Ltd., 283 Md. at 326 , 389 A.2d 887 . In our review, we evaluate “the same material from the record and decide[ ] the same legal issues as the circuit court.” Lopata v. Miller, 122 Md.App. 76, 83 , 712 A.2d 24 , cert. denied, 351 Md. 286 , 718 A.2d 234 (1998).

If we are satisfied that there is no genuine issue of material fact, then we must determine if the trial court reached the correct legal result. See Beatty, 330 Md. at 737 , 625 A.2d 1005 . Appellate courts will generally uphold a grant of summary judgment “only on the grounds relied upon by the trial court.” Blades v. Woods, 338 Md. 475, 478 , 659 A.2d 872 (1995); see Gross v. Sussex, 332 Md. 247 , 254 n. 3, 630 A.2d 1156 (1993); Hoffman v. United Iron and Metal Co., 108 Md.App. 117, 132-33 , 671 A.2d 55 (1996). DISCUSSION I. In her brief, appellant alleges that Loomis had actual knowledge that she owned substantial assets, including valuable waterfront property in Annapolis for which Loomis procured replacement coverage in excess of $200,000, and that “a large tort judgment ... would expose” Sadler to the loss of her assets in the event that she was underinsured.

Further, Sadler asserts that because she relied on Loomis and its ³⁹¹ predecessors for 50 years “to provide proper insurance coverage,” she “had no reason to believe that [appellee] would allow her to be woefully underinsured.” According to appellant, the risk of loss created by Loomis’s alleged negligence materialized when Sadler injured Prophet in the vehicular accident in 1996. At oral argument, appellant’s counsel represented that Sad-ler does not contend that Loomis had a duty to advise Sadler to increase her liability coverage. Rather, Sadler maintains that Loomis was negligent because it breached the standard of care applicable to an insurance agent or broker with respect to two duties: 1) a duty to provide Sadler with adequate information about automobile liability insurance to enable her to make “an informed decision” or a “reasonable decision” about “liability limits;” 2) a duty to provide Sadler with periodic quotes regarding the cost of greater liability coverage. Loomis counters that it was not negligent, because an insurance agent or broker “does not have a continuing duty to advise an insured as to the adequacy of his or her limits,” absent a “special relationship” between the insured and the broker.

According to appellee, Sadler did not establish a special relationship. Distilled to its essence, Sadler’s formulation of Loomis’s alleged negligence amounts to a veiled and subtle way of contending that Loomis had an affirmative duty to provide its insured with unsolicited advice or information concerning the suitability or advisability of the level of liability coverage selected by the insured, and the cost of additional coverage. In the extreme, the question might well be this: “[H]ow many of the virtually infinite number of potential risks [is] a broker [required to] anticipate,” in order to inform or educate his client about them, in the absence of any request by the insured. CIGNA Property & Casualty Companies v. Zeitler, 126 Md.App. 444, 468 , 730 A.2d 248 (1999).

On the other hand, this case does not involve a claim that an insurance agent or broker failed to procure particular coverage specifically requested by the insured. Further, this case ³⁹² does not concern the failure of an agent or broker to inform a client that the coverage actually obtained differs from what was sought or previously provided. Nor does this case involve a “special relationship” between appellant and Loomis; at oral argument, appellant conceded that she did not have a “special relationship” with Loomis. 4 A “special relationship” within the insurance industry is an important concept. A special relationship in the context of insurance requires more than the ordinary insurer-insured relationship.

It may be shown when an insurance agent or broker holds himself or herself out as a highly skilled insurance expert, and the insured relies to his detriment on that expertise. A special relationship may also be demonstrated by a long term relationship of confidence, in which the agent or broker assumes the duty to render advice, or has been asked by the insured to provide advice, and the adviser is compensated accordingly, above and beyond the premiums customarily earned. See 13 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3D § 46:61, at 46-91 to 92 (1997) (“Couch”); 12 Eric M. Holmes, Holmes’ Appleman on Insurance 2D § 86.2, at 394-401 (“Appleman”). In Parker v. State Farm Mut.

Auto. Ins. Co., 630 N.E.2d 567, 569-70 (Ind.Ct.App.1994), the court explained: [I]t is the nature of the relationship, and not merely the number of years associated therewith, that triggers the duty to advise. Some of the factors relevant to developing entrustment between the insured and the insurer include: exercising broad discretion to service the insured’s needs; counseling the insured concerning specialized insurance coverage; holding oneself out as a highly-skilled insurance ³⁹³ expert, coupled with the insured’s reliance upon the expertise; and receiving compensation, above the customary premium paid, for expert advice provided.

(Internal citations omitted). Maryland statutory law is consistent with the concept set forth above. Maryland Code (1997, 2000 Supp.), § 10-201(b) of the Insurance Article (“Insur.”), defines an insurance adviser, as distinguished from an insurance agent or broker. It states, in relevant part: § 10-201.

Definitions. (a) In general. In this subtitle the following words have the meanings indicated. (b) Adviser. — “Adviser” means a person that, for compensation: (1) examines or offers to examine a policy ... for the purpose of giving, or gives or offers to give, advice or information about: (i) the terms, conditions, benefits, coverage, or premium of a policy ...; or (ii) the advisability of changing, exchanging, converting, replacing, surrendering, continuing, or rejecting a policy ... from an insurer; or (2) represents to the public that the person gives or is engaged in the business of giving advice or information to holders of policies or annuity contracts by use of the title “insurance adviser”, “insurance specialist”, “insurance counselor”, “insurance analyst”, “policyholders’ adviser”, “policy holders’ counselor”, “refund company” or other similar title: (i) in or on advertisements, cards, signs, circulars, letterheads, or elsewhere; or (ii) in any other manner in which public announcements are made.

Insur. § 10-201 (emphasis added). An insurance agent or broker is not necessarily an insurance “adviser.” See 12 M.L.E. Insurance § 49, at 425 (1999) (“Certain individuals, such as licensed agents and brokers, ³⁹⁴ among others, are not covered under the sections of the act pertaining to advisers.”). The terms “insurance agent” and “insurance broker” are sometimes used interchangeably, although they are not the same. It is useful to review these terms in order to clarify Loomis’s role.

A “broker” is defined in Insur. § 1 — 101(i), as follows: (i) Broker. — “Broker” means a person that, for compensation, solicits, procures, or negotiates insurance contracts or the renewal or continuance of insurance contracts: (1) for insureds or prospective insureds other than the broker; and (1) not for an insurer or agent. An insurance broker generally “acts as the agent for its customers [in] seeking insurance.” Green v. H & R Block, Inc., 355 Md. 488, 515 , 735 A.2d 1039 (1999). The Green Court explained: “An insurance ... broker, is one who acts as a middle man between the assured and the insurer, and who solicits insurance from the public under no employment from any special company, but having secured an order, either places the insurance with a company selected by the assured, or in the absence of any selection by him, then with a company selected by the broker. Ordinarily, the relation between the insured and the broker is that between principal and agent.” Id.

(quoting American Casualty Co. v. Ricas, 179 Md. 627, 631 , 22 A.2d 484 (1941)) (emphasis added in Green), see Popham v. State Farm Mut. Ins. Co., 333 Md. 136 , 156 n. 10, 634 A.2d 28 (1993); Medical Mut. Liab.

Ins. Soc. of Md. v. Mut. Fire, Marine and Inland Ins. Co., 37 Md.App. 706, 714 , 379 A.2d 739 (1977).

Thus, “[a]n insurance broker is ordinarily employed by a person seeking insurance, and when so employed, is to be distinguished from [the] ordinary insurance agent, who is employed by insurance companies to solicit and write insurance by, and in the company.” Ricas, 179 Md. at 631 , 22 A.2d 484 . ³⁹⁵ In contrast, “an insurance agent, so far as the insurer is concerned, is a person expressly or impliedly authorized to represent it in dealing with third parties in matters relating to insurance.” Ricas, 179 Md. at 631 , 22 A.2d 484 . Insur. § 1-101(c) defines an insurance agent, in part, as follows: (c) Agent. — (1) “Agent” means a person that, for compensation, solicits, procures, negotiates, or makes insurance contracts or the renewal or continuance of these insurance contracts for persons issuing the insurance contracts. Although Loomis is sometimes referred to here as an insurance agency, it is clear that Loomis functioned as a broker. An insurance agent is “tied to his company,” while a broker is an “independent middleman not tied to a particular company.” 43 Am.Jur.2d, Insurance § 109, at 187 (1982).

Moreover, “[e]very insurance broker is in a sense an agent, but the latter term is the more generic, and every insurance agent is not a broker.” Id. “Whether a person is a broker or an agent is determined not by what he is called but by what he does.” Medical Mut. Liability, 37 Md.App. at 714 , 379 A.2d 739 .

II

Generally, an insurance agent or broker owes a duty to “ ‘exercise reasonable care and skill in performing his duties. And if such a representative fails to do so, he may become liable to those ... who are caused a loss by his failure to use standard care.’ ” Insurance Co. of No. America v. Miller, 362 Md. 361, 386 , 765 A.2d 587 (2001) (quoting Bogley v. Middleton Tavern, Inc., 288 Md. 645, 650 , 421 A.2d 571 (1980)); see Jones v. Hyatt Insurance Agency, Inc., 356 Md. 639, 657-58 , 741 A.2d 1099 (1999); Popham, 333 Md. at 153 , 634 A.2d 28 . Typically, the tort duty of an agent or broker stems from a relationship of “confidence and trust” that an insured has placed in an “experienced and knowledgeable” insurance agent or broker. See Jones, 356 Md. at 657 , 741 A.2d 1099 ; Lowitt ³⁹⁶ v. Pearsall Chemical Corp., 242 Md. 245, 253 , 219 A.2d 67 (1966).

To prove negligence, a plaintiff must show four elements: “(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached the duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” Insurance Co. of North America, 362 Md. at 387 , 765 A.2d 587 (quoting Baltimore Gas & Elec. Co. v. Flippo, 348 Md. 680, 700 , 705 A.2d 1144 (1998)); see Jones, 356 Md. at 653 , 741 A.2d 1099 . “ ‘[There can be no negligence where there is no duty that is due; for