Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07AS03379
HULL, J.Plaintiffs University Partners, LLC (University Partners), and its managing member, Thomas Westley, appeal from a judgment of dismissal entered in favor of defendants John O. Bronson, a California corporation, (Bronson) and Paul F. Bystrowski, a Bronson employee, (hereafter collectively defendants) after the trial court sustained without leave to amend defendants’ demurrers to the only causes of action in the complaint purporting to state claims against defendants. Plaintiffs contend the complaint adequately states claims against defendants for both negligence and negligent misrepresentation. We disagree and affirm the judgment of dismissal.
Facts and Proceedings
Since this is an appeal from a dismissal following an order sustaining demurrers, we accept as true all material facts alleged in the complaint. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 8, fn. 3; Shoemaker v. Myers (1990) 52 Cal.3d 1, 7.) We also accept facts that may be implied or inferred from those expressly alleged. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 141.)
Prior to July 27, 2005, Westley was the managing member of University Partners. The principal asset of University Partners was a building located at 300 University Avenue in Sacramento (the Building). On that date, the Building was destroyed by a fire.
Prior to May 30, 2001, the Building was insured by Fireman’s Fund Insurance Company (Fireman’s Fund) under a policy obtained by University Partners from Bronson (the Fireman’s Fund policy). Although the Fireman’s Fund policy contained a coverage limit of $2,431,000, it included a policy amendment entitled “Guaranteed Replacement Cost” (GRC), which provided that, in the event of a covered loss of the Building, the insurer would pay the replacement cost without regard to the coverage limit. Under this GRC coverage, if the insured declined to rebuild, the insurer would pay the “actual cash value” of the Building.
Dick Dotters of Cummins Insurance Agency (Cummins) approached plaintiffs about replacing the Fireman’s Fund policy with an equivalent policy at lower cost. At the time, plaintiffs insisted that any new policy provide equal or greater coverage, and Dotters agreed.
In or around September 2000, defendants prepared a one-page document entitled “Evidence of Property Insurance” (the Evidence Form) that briefly listed the coverage provided in the Fireman’s Fund policy. However, the Evidence Form misstated the coverage limit as $2,341,000, rather than $2,431,000. It also indicated the Fireman’s Fund policy provided “Replacement Cost” coverage.
Plaintiffs were unaware of any misstatements of coverage in the Evidence Form. They provided the document to Cummins in order for the latter to determine if it could provide equivalent insurance at a lower cost. Cummins selected an insurance policy issued by Zurich North America (the Zurich policy) which, Cummins assured plaintiffs, was equivalent to the Fireman’s Fund policy. However, it was not. The Zurich policy did not provide GRC coverage as in the Fireman’s Fund policy. Instead, it contained replacement cost (RC) coverage which provided that, in the event of a covered loss of the Building, the insurer would pay the cost of replacement up to the policy limit. The Zurich policy also had a coverage limit of $2,341,000, as stated in the Evidence Form, rather than the $2,431,000 provided in the Fireman’s Fund policy.
Over the years, the coverage limit on the Zurich policy increased. By May 30, 2005, it had reached $2,999,000.
As noted earlier, the Building was destroyed by a fire on July 27, 2005. At the time, the cost to rebuild would have been $4,477,172. Because the Zurich policy limited the insurance recovery to the policy limit of $2,999,000, University Partners decided not to rebuild.
It was not until after the fire that University Partners learned the Zurich policy provided RC coverage rather than GRC coverage, as in the Fireman’s Fund policy, and that the policy limit in the Zurich policy “had not been properly adjusted to account for the actual replacement cost of the Building.”
On July 24, 2007, plaintiffs initiated this action against defendants, Maryland Casualty Company, doing business as Zurich North America, Cummins, Dotters, and Debbie Cummins. The First Amended Complaint contains eight causes of action, only the fifth, sixth and eighth of which purport to state claims against defendants.
The fifth cause of action is labeled negligent misrepresentation. In it, plaintiffs allege defendants negligently misrepresented by way of the Evidence Form the coverage provided in the Fireman’s Fund policy. They further allege defendants issued the Evidence Form intending that it be relied upon and plaintiffs relied on the accuracy of the Evidence Form when they provided it to Cummins. Finally, plaintiffs allege their reliance on the Evidence Form proximately caused them to have inadequate coverage at the time the Building was destroyed.
The sixth cause of action is labeled declaratory relief. In it, plaintiffs allege they and Cummins had a right to rely on the Evidence Form, whereas defendants claim nobody had a right to rely on the Evidence Form but were instead required to read the Fireman’s Fund policy to determine its terms.
In the eighth cause of action, plaintiffs purport to state a separate claim on behalf of Westley. They allege Westley, as the managing member of University Partners, was separately damaged when University Partners was forced not to rebuild the Building.
Defendants demurred to the First Amended Complaint, asserting the fifth, sixth and eighth causes of action fail to state a claim against them.
The trial court sustained the demurrers without leave to amend. The court concluded there were no material misrepresentations in the Evidence Form and no reasonable insured or insurance agent would have relied on it without reading the insurance policy itself. According to the court, the Evidence Form does not invite the insured to rely on it but rather refers the insured to the insurance policy. Furthermore, according to the court, even if the Evidence Form invited plaintiffs to rely on it, they had ample opportunity over the next several years to review the Zurich policy to see that it did not include GRC coverage like that in the Fireman’s Fund policy. Finally, the court concluded the sixth cause of action is moot by virtue of the court’s ruling regarding the fifth cause of action, and Westley did not oppose the demurrer to the eighth cause of action.
The court thereafter entered judgment of dismissal in favor of defendants.
Discussion
I
Negligent Misrepresentation
Plaintiffs contend the fifth cause of action states a claim for negligent misrepresentation. They argue defendants had a duty as their insurance agent to prepare the Evidence Form but did so negligently. They further argue defendants’ negligence proximately caused them to be inadequately insured at the time the Building was destroyed.
“Negligent misrepresentation is a separate and distinct tort, a species of the tort of deceit. ‘Where the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation....’” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407.) “‘To be actionable deceit, the representation need not be made with knowledge of actual falsity, but need only be an “assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true” [citations] and made “with intent to induce [the recipient] to alter his position to his injury or his risk....” [Citations.]’ [Citation.] The elements of negligent misrepresentation also include justifiable reliance on the representation, and resulting damage.” (B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823, 834.)
The trial court made a number of determinations in support of its order sustaining defendants’ demurrers to the fifth cause of action. First, the court concluded “[t]here is no material misrepresentation in the [Evidence Form].” According to the court, the Evidence Form “specifically refers to the actual policy and a reasonable insured and a reasonable agent would have read the policy before procuring a new policy.”
We are not quite sure what the one has to do with the other. Neither the fact that the Evidence Form refers to the insurance policy nor that a reasonable insured would have read the policy would negate the presence of a material misrepresentation in the Evidence Form. Under “Coverage Information,” the Evidence Form lists “Replacement Cost” and a limit of $2,341,000. To the extent “Replacement Cost” does not encompass GRC coverage as defined in the Fireman’s Fund policy, and the GRC coverage would have required the insurer to replace the Building regardless of cost or pay the policy limit, whereas “Replacement Cost” coverage would not have, this would appear to be a material misrepresentation. Likewise, a $90,000 difference in the coverage limit would appear to be material.
However, the presence of a material misrepresentation in the Evidence Form is only part of the equation. Plaintiffs contend they justifiably relied on the Evidence Form in procuring alternate insurance and were under no obligation to read the insurance policy to assure that the Evidence Form was accurate. They cite as support Clement v. Smith (1993) 16 Cal.App.4th 39 (Clement).
In Clement, the insured obtained liability insurance and was informed by his agent that the policy provided coverage in the event of litigation initiated by a specific person. However, when that person sued the insured for breach of contract, the insurer denied coverage under the policy, which in fact provided coverage only for personal injury and property damage claims. (Clement, supra, 16 Cal.App.4th at pp. 42-43.) The Court of Appeal concluded the insured reasonably relied on the agent’s representations regarding coverage and affirmed judgment for the insured on his negligent misrepresentation claim. The court explained: “When dealing with a contract as adhesive as the typical insurance policy, we are unwilling to impose on the insured so onerous a burden as would automatically defeat any agent’s liability for misrepresentation. Certainly an insured cannot remain intentionally ignorant of the terms of his or her policy. Here, however, we have a factual finding by the trial court that Clement reasonably relied on Smith’s representation of coverage. That finding is supported by substantial evidence where the record shows Smith’s representations were in no way cautionary or equivocal. Absent some notice or warning, an insured should be able to rely on an agent’s representations of coverage without independently verifying the accuracy of those representations by examining the relevant policy provisions. This is particularly true in view of the understandable reluctance of an insured to commence a study of the policy terms where even the courts have recognized that few if any terms of an insurance policy can be clearly and completely understood by persons untrained in insurance law.” (Id. at p. 45.)
To the same effect is Westrick v. State Farm Insurance (1982) 137 Cal.App.3d 685 (Westrick). There, the insured expressed to his agent concerns about coverage for a commercial vehicle he contemplated buying. The agent told him there was a 30-day automatic coverage clause in his policy. However, the agent failed to explain that the automatic coverage clause applied only to a vehicle purchased as a replacement for an existing covered vehicle and that coverage was limited to four-wheel vehicles. Sometime later, the insured purchased a business for his son which included a six-wheel welding truck. He called his agent to request insurance but the agent was unavailable. Another agent told the insured his agent would be in the next day. When the insured offered to provide information about the just-purchased vehicle, he was told that was unnecessary. The insured assumed this meant the 30-day automatic coverage provision applied. However, when the truck was involved in an accident the next day, the insurer denied coverage. (Id. at pp. 688-689.)
The Court of Appeal concluded it was a question of fact whether the insured's reliance on his agent’s representations was reasonable. The court explained it did not matter that the agent had not affirmatively represented the welding truck would be covered, because there is “no reason to distinguish between the misfeasance of giving erroneous information and the nonfeasance of giving no information at all.” (Westrick, supra, 137 Cal.App.3d at p. 692.) According to the court: “A long line of California cases has recognized that a disparity of knowledge may impose an affirmative duty of disclosure. [Citations.] In the insurance field, the quasi-public nature of the insurer’s obligation imposes upon him a duty of good faith and fair dealing, which requires the insurer to ‘“give at least as much consideration to the [insured’s] interests as it does to its own.”’ (Italics omitted.) [Citations.] Since ‘“[i]t is a matter almost of common knowledge that a very small percentage of policy-holders are actually cognizant of the provisions of their policies... [and the] insured usually confides implicitly in the agent securing the insurance...”’ [citations], the insurer’s duty includes the duty ‘reasonably to inform an insured of the insured’s rights and obligations under the insurance policy.’” (Id. at pp. 691-692, fn. omitted.)
Defendants counter that plaintiffs are bound by the general rule that insureds have a duty to read their insurance policies. (See Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 104 [“Jameszetta's ignorance of the provision would be irrelevant; she is chargeable with the clear provisions of the policy whether she read it or not”]; Malcom v. Farmers New World Life Ins. Co. (1992) 4 Cal.App.4th 296, 304, fn. 6 [“‘A reasonable person will read the coverage provisions of an insurance policy to ascertain the scope of what is covered’”]; Aetna Cas. & Surety Co. v. Richmond (1977) 76 Cal.App.3d 645, 652 [“‘It is a general rule that the receipt of a policy and its acceptance by the insured without an objection binds the insured as well as the insurer and he cannot thereafter complain that he did not read it or know its terms. It is a duty of the insured to read his policy’”].
In Hackethal v. National Casualty Co. (1987) 189 Cal.App.3d 1102 (Hackethal), the insurer sold to the plaintiff doctor a policy providing for the payment of benefits for days spent in court as a defendant in a professional negligence action. A promotional brochure for the policy made certain representations regarding the benefits provided. (Id. at p. 1106.) The front of the brochure proclaimed: “‘Protect yourself from loss of income with a Defendants Reimbursement Policy up to $5,000.00 per Trial only $30.00 a Year.’” (Ibid.) However, a prominent caveat warned: “‘This brochure briefly outlines the insurance plan. Complete details and provisions of the insurance are contained in the policy.’” (Ibid., italics omitted.) The insurer informed the doctor the policy would cover him if he had to be out of the office for “any suit filed against him, even on matters other than malpractice.” (Id. at p. 1107.)
Thereafter, the Attorney General filed an accusation against the doctor, charging him with gross negligence, incompetence and criminal acts and seeking revocation of his license. The administrative hearing on this charge spanned 39 days. (Hackethal, supra, 189 Cal.App.3d at p. 1108.) When the insurer denied the doctor’s claim for benefits under the policy, he sued.
The Court of Appeal rejected the doctor’s fraud claim. The court concluded that, if the doctor relied on the insurer’s statements in forming a belief that administrative hearings were covered by the policy, “his reliance was unjustifiable as a matter of law.” (Hackethal, supra, 189 Cal.App.3d at p. 1111.) The policy expressly provided coverage for “‘each day the insured is required to attend the trial of a civil suit for damages against the insured alleged to have been caused’ either ‘by malpractice in the practice of the profession of the insured’... or ‘by an automobile accident.’” (Id. at pp. 1109-1110.) According to the court: The caveat in the brochure “put [the doctor] on notice that the terms of the policy controlled the extent of his coverage. The brochure clearly states: ‘This brochure briefly outlines the insurance plan. Complete details and provisions of the insurance are contained in the policy.’ (Italics added.) Moreover, the policy itself proclaims in bold letters: ‘Please Read Your Policy.’ [The doctor] testified that he did in fact read his policy when he received it, but stated that he ‘didn’t analyze it....’ He should have done so.” (Id. at p. 1112.)
In Hadland v. NN Investors Life Ins. Co. (1994) 24 Cal.App.4th 1578 (Hadland), the insureds sought new health insurance after they were informed the premiums on their existing policy would go up. They were informed by an agent of the defendant that defendant’s policy would provide the same coverage at half the price. They signed up for the new insurance, were provided a copy of the policy, but did not read it. The insureds later learned the new policy did not provide as much coverage and sued the insurer. The trial court entered nonsuit on the insured’s claim for fraud. (Id. at pp. 1581-1582.)
The Court of Appeal affirmed, concluding the insureds had not proven justifiable reliance. The court noted the general rule that “‘“the receipt of a policy and its acceptance by the insured without an objection binds the insured as well as the insurer and he [or she] cannot thereafter complain that he [or she] did not read it or know its terms. It is a duty of the insured to read his [or her] policy.”’” (Hadland, supra, 24 Cal.App.4th at p. 1586.) According to the court: “‘“A reasonable person will read the coverage provisions of an insurance policy to ascertain the scope of what is covered. [Citation.]”... Generally the insured is “bound by clear and conspicuous provisions in the policy even if evidence suggests that the insured did not read or understand them.” [Citation.]’” (Ibid.) In this instance, the court concluded the terms of the insurance policy were sufficiently clear that a review of the policy would have revealed the discrepancy between the defendants’ representations and reality and would have prompted the insureds to reject the new policy and continue paying the higher premiums on their existing policy. (Id. at pp. 1587-1589.)
Although Hackethal and Hadland involved claims of fraud rather than negligent misrepresentation, both theories of liability include the element of justifiable reliance. In Clement and Westrick, the court found justifiable reliance where the insurer made representations about coverage for a specific matter. In Clement, the insurer represented that the policy would cover litigation initiated by a particular person. In Westrick, the insurer obliquely indicated a particular vehicle would be covered by a 30-day grace period. By contrast, in neither Hackethal nor Hadland did the insurer make representations about specific coverage. Rather, the insurer made general representations about the scope of coverage and made no mention of the type of claim later rejected.
In our view, the present matter is controlled by Hackethal and Hadland rather than Clement and Westrick. The Evidence Form indicated the limit of liability was $2,341,000 instead of $2,431,000. This is not a representation that a particular claim would be covered, as in Clement and Westrick. It is rather an obvious typographical error. An examination of the insurance policy would have revealed the discrepancy.
The Evidence Form also mentioned “Replacement Cost” coverage. According to a treatise on insurance coverage disputes, there are two basic types of coverage for property damage--replacement cost and actual cash value (ACV). (See 2 Ostrager & Newman, Handbook on Insurance Coverage Disputes (4th ed. 2008) § 21.06, p. 1484.) “Replacement cost is typically defined as the cost to replace destroyed property with property of ‘like kind and quality’ or with property that is its functional equivalent. [Citations.] [¶] In contrast, ACV coverage typically allows an insured to recover the depreciated value of the destroyed property. [Citations.]” (Id., § 21.06, at p. 1485.) However, in each instance, the specific policy language controls the interpretation of the label used. (Id., § 21.06, at pp. 1484-1485.)
When the Evidence Form listed “Replacement Cost” coverage, there is no reason for plaintiffs or Cummins to conclude, from this alone, that the coverage provided was RC coverage rather than GRC coverage, as defined in the Fireman’s Fund policy. In other words, as the trial court concluded, the Evidence Form did not fail to mention GRC coverage. It just failed to specify with particularity the type of “Replacement Cost” coverage involved. Again, an examination of the policy language would have cleared this up.
The Evidence Form is comparable to the brochure in Hackethal. It summarized the coverage provided by the insurance policy. Any reliance on such a document for purposes of assessing the precise coverage provided is unreasonable as a matter of law. If, as plaintiffs allege, they desired to obtain new insurance equivalent to that provided in the Fireman’s Fund policy, they had an obligation to read the Fireman’s Fund policy to determine its precise scope of coverage. This is especially true with respect to the undefined reference to “Replacement Cost” coverage.
At any rate, plaintiffs’ negligent misrepresentation claim is without merit for another reason. In the present matter, unlike the other reported misrepresentation cases, plaintiffs’ claim is not that defendants overstated the extent of coverage, thereby leaving them to believe they had more coverage than actually existed, but that defendants understated the extent of coverage, thereby leading them to obtain less coverage from Zurich than they had with Fireman’s Fund.
In paragraph 15 of the First Amended Complaint, plaintiffs allege that, after the fire, University Partners “first learned that the Zurich [p]olicy was not equivalent to the Fireman’s Fund [policy]; that the coverage would not provide for full replacement costs of the Building, but rather would be limited by policy limits which had not been properly adjusted to account for the actual replacement cost of the Building.” This allegation suggests two possible scenarios: (1) plaintiffs knew the Fireman’s Fund policy provided GRC coverage, assumed the Zurich policy provided GRC coverage, but found out after the fire the Zurich policy provided RC coverage; or (2) plaintiffs thought the Fireman’s Fund policy provided RC coverage, believed the Zurich policy also provided RC coverage, but learned after the fire the Fireman’s Fund policy provided GRC coverage.
In their opening brief, plaintiffs assert University Partners “did not know at the time [May 30, 2001] that the Fireman’s Fund policy contained GRC coverage.” Hence, for purposes of this appeal, we shall assume the second scenario applies, and plaintiffs claim is reduced to this: Had plaintiffs known the Fireman’s Fund policy provided GRC coverage, they would have asked Cummins to provide a policy with GRC coverage. Either Cummins would have provided such a policy or plaintiffs would have stayed with the Fireman’s Fund policy. Either way, plaintiffs would have had GRC coverage at the time of the fire.
As noted earlier, the elements of negligent misrepresentation are “(1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages.” (Fox v. Pollack (1986) 181 Cal.App.3d 954, 962; see also Rios v. Scottsdale Ins. Co. (2004) 119 Cal.App.4th 1020, 1028; B.L.M. v. Sabo & Dietsch, supra, 55 Cal.App.4th at p. 834; Home Budget Loans, Inc. v. Jacoby & Meyers Law Offices (1989) 207 Cal.App.3d 1277, 1285.)
In asserting they had no obligation to read the Fireman’s Fund policy, plaintiffs claim to have relied upon the professional expertise of defendants as insurance professionals. However, as the California Supreme Court explained in Bily v. Arthur Young & Co., supra, 3 Cal.4th at pages 411-412, in order to establish a claim for negligent misrepresentation, “California courts have consistently required some manifestation on the part of a professional who offers an opinion, information, or advice that he or she is acting to benefit a third party or defined group of third parties in a specific and circumscribed transaction.” The court continued: “‘Intent to influence is a threshold issue. In its absence there is no liability even though a plaintiff has relied on the misrepresentation to his or her detriment, and even if such reliance were reasonably foreseeable.’” (Id. at p. 412, italics omitted, quoting Stagen v. Stewart-West Coast Title Co. (1983) 149 Cal.App.3d 114, 121-122.)
The complaint does not allege defendants prepared the Evidence Form with intent to influence plaintiffs in their decision to obtain alternate insurance. There is in fact no suggestion whatsoever as to why the Evidence Form was created. And even if plaintiffs could allege the Evidence Form was prepared at their request to be used in securing alternate insurance, it cannot reasonably be alleged defendants prepared the form with the intent to influence plaintiffs in their decision. If defendants had wished to influence plaintiffs in their decision, they would have overstated the extent of coverage, not understated it. That is what distinguishes this case from the other reported cases on negligent misrepresentation. Defendants are not being accused of trying to influence plaintiffs to contract with them by overstating the benefits provided. They are accused of understating the coverage, thereby undercutting their own case to retain plaintiffs as clients.
Furthermore, the fact that plaintiffs intended to use the Evidence Form to find replacement insurance is another reason why plaintiffs’ reliance on that document was unreasonable. Only plaintiffs had an incentive to make sure the information they provided to Cummins was accurate.
Finally, the trial court concluded that, assuming plaintiffs were entitled to rely on the Evidence Form, they “had the opportunity to review the terms of the Zurich policy at least four times when it came up for renewal in 2002, 2003, 2004, [and] 2005.” Plaintiffs argue any review of the Zurich policy would have been meaningless inasmuch as this would not have revealed the fact that the Fireman’s Fund policy had provided greater coverage. This misses the point. Regardless of the extent of coverage in the Fireman’s Fund policy, from May 2001 until the fire in July 2005, plaintiffs were on notice they did not have GRC coverage. They in fact did not know they ever had GRC coverage. When they did not receive GRC coverage benefits after the fire, they in effect got exactly what they bargained for. If plaintiffs had wanted GRC coverage as defined in the Fireman’s Fund policy, they had ample opportunity to obtain it. The fact they did not suggests either that it was not important to them or that, more likely, they did not realize the RC coverage provided in the Zurich policy did not in fact provide for replacement of the Building regardless of cost. However, this is a matter between plaintiffs and the remaining defendants in this action.
We conclude the trial court correctly determined the fifth cause of action does not state a claim against defendants for negligent misrepresentation.
II
Negligence
Plaintiffs contend the fifth cause of action nevertheless states a claim in ordinary negligence. They argue a “special duty” arose when defendants undertook to disclose the terms of the Fireman’s Fund policy, and defendants breached that duty when they misrepresented those terms in the Evidence Form.
“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. ‘[W]e are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)
“The elements of negligence are: (1) defendant’s obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of the duty); (3) a reasonably close connection between the defendant’s conduct and resulting injuries (proximate cause); and (4) actual loss (damages).” (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 279.) “The existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide. (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 265.) However, the elements of breach of that duty and causation are ordinarily questions of fact for the jury’s determination.” (Vasquez, at p. 278.)
Defendants argue that, “[w]hile, as a general proposition, an agent can be liable for failing to properly represent the scope of the coverage to be provided, there are no facts in this case indicating that Bronson failed to inform University [Partners] that [GRC coverage] actually was available under the Fireman’s Fund policy.” In support of this contention, defendants point out that plaintiffs were provided a copy of the insurance policy, a review of which would have revealed the correct terms of the policy. They further point out plaintiffs were expressly advised in the Evidence Form that it was “subject to” the insurance policy. Finally, defendants argue that, since the stated policy limit could apply if a loss occurred and the insured elected not to replace the property, the Evidence Form was in fact accurate.
Because we agree with defendants’ first point, we need not consider the others. However, we do point out that, contrary to defendants’ assertions, the Evidence Form did not expressly advise plaintiffs it was subject to the terms of the insurance policy. Rather, the Evidence Form stated: “THE POLICY IS SUBJECT TO THE PREMIUMS, FORMS, AND RULES IN EFFECT FOR EACH POLICY PERIOD....” This does not indicate the Evidence Form is subject to anything. It says the insurance policy itself is subject to the items listed.
To the extent defendants owed plaintiffs a duty to disclose the terms of the insurance policy, they satisfied that duty by providing plaintiffs with a copy of the policy. This is not changed by the fact defendants may have provided other, contrary information in the Evidence Form. Obviously the information in the policy itself overrode anything in the Evidence Form. And despite plaintiffs’ assertions of a special duty, the complaint does not allege the Evidence Form was requested by plaintiffs for some special purpose or that defendants undertook a special obligation to plaintiffs in preparing the form.
Defendants also argue, correctly, that any misstatements in the Evidence Form were not a proximate cause of plaintiffs’ loss. To the extent the Evidence Form failed to inform plaintiffs, and in turn Cummins, that the Fireman’s Fund policy provided GRC coverage, plaintiffs were aware as early as May 30, 2001, they did not have GRC coverage in the Zurich policy. To the extent plaintiffs wanted GRC coverage, they had ample opportunity to obtain it between that date and the date of the loss. They chose not to do so. It is plaintiffs’ inaction in this regard, not defendants’ misstatements, that proximately caused plaintiffs not to have GRC coverage at the time of their loss.
We conclude the trial court properly sustained defendants’ demurrer to the fifth cause of action.
III
The Remaining Claims
The trial court sustained defendants’ demurrer to the sixth cause of action, concluding it is moot in light of the court’s ruling on the fifth cause of action. The court sustained defendants’ demurrer to the eighth cause of action because it was unopposed. Plaintiffs raise no contentions on appeal regarding these rulings.
Disposition
The judgment is affirmed. Defendants are entitled to their costs on appeal.
We concur: RAYE, Acting P. J., ROBIE, J.