A client charging his insurance broker with negligence must prove his own freedom from contributory negligence.
The broker procured two insurance policies covering the client's building and its contents. After a fire, the client submitted proofs of loss to recover under the policies, but the insurers refused to pay. The client sued the insurers, settled the suits, and then filed an action against the broker. The client claimed that, in procuring the policies, the broker had negligently represented that the premises to be insured was a brick building when it fact it was not and that the insurers had refused to pay solely because of the misdescription.
Should the action prosper?
The court determined that the client failed to show his own freedom from contributory negligence, that there was a complete failure of proof that the insurers had refused payment solely because of the misdescription, and that there was no adequate showing to establish damages in excess of the amounts received by the client from the insurers. The court concluded that the client had failed to establish his cause of action by a fair preponderance of the credible evidence.