finding that the action was “roughly analogous to a malpractice action” and concluding that it was grounded in tort rather than contract because “[t]he relationship between the parties * * * called for the performance of certain services by the insurance agent, and any breach thereof involved the agent’s failure to secure the desired insurance coverage”
How later courts described this case
- finding that the action was “roughly analogous to a malpractice action” and concluding that it was grounded in tort rather than contract because “[t]he relationship between the parties * * * called for the performance of certain services by the insurance agent, and any breach thereof involved the agent’s failure to secure the desired insurance coverage”
- finding tort cause of action accrued as of date that damages were incurred, and not earlier date when duty was breached
- adopting the rule of Austin v. Fulton Ins. Co. [Alaska 1968], 444 P.2d 536, that impairment occurs under earthquake insurance when a loss by earthquake occurs
- cause of action against insurer for failure to obtain coverage accrued at date of loss
Written by the judges who cited it.
Distinguished
Distinguished by LGR Realty, Inc. v. Frank & London Ins. Agency, 2018 Ohio 334 (2018)
In response to F & L's second proposition of law, LGR agrees that this court's entire opinion sets forth the law but it argues that Kunz is distinguishable from Flagstar and that Kunz controls in this case.
The opinion
Krupansky, J.,
dissenting. While I agree the instant action was grounded in tort, I disagree with the majority as to when the cause of action accrued. I, therefore, respectfully dissent.
In my opinion, appellants’ cause of action accrued at the latest on April 1, 1973, the date appellants renewed the policy. It was on that date appellees allegedly committed a wrongful act by failing to procure the requested coverage. At that point, appellants had a right of action against appellees. If they had discovered the omission which was apparent on the face of their policy, they could have pursued appellees for the difference in value between a policy which included the requested coverage and the value of the policy as issued. Since the alleged wrongful act and the accrual of appellants’ right of action occurred more than four years before appellants filed the instant lawsuit, appellants’ suit is barred by the statute of limitations. I would, therefore, affirm the judgment of the Court of Appeals.
Locher, J., concurs in the foregoing dissenting opinion.