Agent Not Responsible for Insured’s Lack of Coverage

    The court dismissed the insured’s complaint against the agent for alleged failure to procure proper coverage. Asphalt Recovery Specialists, Inc. v. Gallagher, 2023 U.S. Dist. LEXIS 73112 (D. Colo. March 23, 2023).

    Asphalt Recover Specialists, Inc. (ARS) engaged Arthur J. Gallagher & Co. to procure an environmental liability poilcy that would provide coverage for on-site cleanup of any pollultion or environment cleanup that may be required in ARS’s asphalt recycling facility. ARS specifically requested that Gallagher procure a policy which would provide coverage for on-site removal of pollutants. Gallagher procured a policy from Weschester Surplus LInes Insurance Company. 

    Subsequently, the Colorado Department of Public Health and Environment required ARS’s facility to close due to a pollution event. ARS removed solid waste from the facility at its own expense.

    Plaintiffs sued Gallagher, alleging that ARS was relying on Gallagher’s expertise in procuring the insurance that would cover such waste removal. Gallagher moved to dismiss the complaint.

    The court granted the motion. ARS failed to establish that Gallagher had a duty to advise ARS of the nature, type and terms of necessary insurance required for providing a policy meeting the needs of the insured. There was no allegation that Gallagher promised to procure such a policy. Therefore, ARS failed to allege that Gallagher owed them a legal duty of care as a result of their request for a specific type of coverage.

    Further, ARS’s complaint contained no allegations that insurance covering on-site removal of solid waste was generally available at the time that Gallagher procured the policy. Accordingly, the complaint failed to plausibly allege the damages and causation elements as to each of their negligence claims.