Charles S. Faber et al.
Francine A. McVay et al.
County Superior Court (PC 09-4512) Associate Justice Joseph
Plaintiffs: Stephen J. Brouillard, Esq. Theresa L. Sousa,
Defendants: Taylor J. Hills, Esq. Frederick E. Connelly, Jr.,
Esq. Syd A. Saloman, Esq. Timothy J. Robenhymer, Esq.
Christopher van Tienhoven, Esq. Christopher B. Weldon, Pro
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Maureen McKenna Goldberg Associate Justice.
case came before the Supreme Court on January 26, 2017,
pursuant to an order directing the parties to appear and show
cause why the issues raised in this appeal should not be
summarily decided. The plaintiffs, Charles S. Faber, M.D.
(Dr. Faber), and Karen M. Faber (Mrs. Faber) (collectively,
plaintiffs), appeal from a grant of summary judgment in favor
of the defendants, Francine A. McVay (McVay), Wickford
Insurance Agency, Inc. (Wickford), Lauren Albright
(Albright), Mastors & Servant, Ltd. (M&S), Judith
Gordon (Gordon), and Marketing Associates Insurance Agency,
Inc. (Marketing Associates) (collectively, defendants),
the plaintiffs' claims of insurance malpractice. The
Superior Court directed the entry of summary judgment on the
basis that the plaintiffs' claims were time-barred under
G.L. 1956 § 9-1-14.1, which sets forth a three-year
limitation period for insurance malpractice claims. After
hearing the arguments of counsel and examining the memoranda
submitted by the parties, we are of the opinion that cause
has not been shown and that this case should be decided
without further briefing or argument. We affirm the judgment
of the Superior Court.
derive the facts relevant to this appeal from the filings of
the parties; they are largely undisputed. From
until her retirement in 2005, McVay acted as Dr. Faber's
insurance agent. McVay was originally employed by Bodin
Insurance Agency but became associated with Wickford around
1994 or 1995. Marketing Associates,  an insurance broker,
functioned as an intermediary between McVay and Dr.
Faber's insurance carriers. According to both Dr. Faber
and McVay, Dr. Faber expressed a desire to obtain the best
and maximum insurance coverage.
October 2002 to October 2003 term, Dr. Faber's automobile
insurance was written by Vigilant Insurance Co. (Vigilant) and
included $5, 000, 000 of underinsured motorist bodily injury
(UM) coverage. It is alleged that, in late 2002, Dr.
Faber inquired with McVay as to whether a different carrier
could provide the same coverage for a reduced premium; it is
further alleged that McVay reported to Dr. Faber that he
could obtain the same coverage and lower his premium payments
by contracting with Progressive Insurance for $250, 000 in UM
coverage and with Vigilant for an umbrella policy of $5, 000,
000 that also included UM coverage. However, during her
deposition, McVay relayed a different version, stating that
she informed Dr. Faber that the policies were different and
that they would "come back and bite him in the
a**." Nonetheless, Dr. Faber directed McVay to make this
change, which reduced his premium by $4, 951. The policy
changes became effective on December 11, 2002. The umbrella
policy with Vigilant provided for $5, 000, 000 in excess
liability only,  but it did not include UM protection.
Dr. Faber was sent notice of these changes, which included
succinct summaries of his coverages, it is undisputed that he
failed to read the coverage update. Over the years, he also
received notices that detailed his automobile insurance
coverage, usually after he added or removed vehicles from his
policies. Nonetheless, Dr. Faber testified at his deposition
that he did not read these notices but filed them in a drawer
because he relied on McVay's insurance expertise. Doctor
Faber maintained that he assumed that his automobile policies
provided maximum coverage for UM.
McVay retired in May 2005, Dr. Faber retained M&S for his
insurance needs, and Albright became his direct agent for
personal insurance. He was informed by M&S that his
policies would be reviewed and that he would be advised if
additional coverage was necessary.Doctor Faber again received
notice as to the terms and coverage of his automobile
insurance. During his deposition, Dr. Faber stated that he
did not recall receiving notice of this cancellation and
April 24, 2007, Dr. Faber was injured in a motor vehicle
accident that occurred in Scottsdale, Arizona. After he
exhausted the tortfeasor's insurance in the amount of
$250, 000, he attempted to submit a claim to Vigilant for his
excess damages. He was informed that his Vigilant policy did
not provide UM coverage, but only excess liability. Doctor
Faber did recover $250, 000 under his UM coverage with
August 6, 2009, plaintiffs filed an action against
defendants, alleging that defendants negligently failed to
adequately provide the insurance coverage that he expected.
On March 14, 2014, McVay and Wickford moved for summary
judgment on the basis, inter alia, that
plaintiffs' claims were barred by the statute of
limitations, § 9-1-14.1. The plaintiffs responded that
the discovery rule set forth in § 9-1-14.1(2) served to
toll the limitation period because Dr. Faber could not
reasonably have discovered the alleged insurance malpractice
until he was injured in the collision and submitted a UM
claim. Although Dr. Faber conceded that he received the
coverage updates from defendants, plaintiffs argued that a
reasonable person does not read his or her insurance
policies. On April 22, 2014, the hearing justice granted
summary judgment in favor of McVay and Wickford, finding that
"a reasonable and diligent inquiry would have placed
[plaintiffs] on notice of a claim in December of 2002[;] to
have timely filed a complaint in compliance with * * *
[§] 9-1-14.1, the plaintiffs would have had to have done
so on or before December 11, 2005." Because the
complaint was filed on August 6, 2009, plaintiffs' claims
were held to be untimely. An order granting summary judgment
was entered on May 21, 2014. Subsequently, on June 10, 2014,
summary judgment was entered in favor of Gordon and Marketing
Associates on the same grounds.
October 10, 2014, Albright and M&S also moved for summary
judgment. Although plaintiffs initially objected to summary
judgment, their objection was subsequently withdrawn, and a
consent order entered ...