Pabitzky v. Frager

Opinion

KINGSLEY, Acting P. J.

Plaintiffs appeal from judgments (orders of dismissal) entered after orders sustaining without leave to amend demurrers to their fifth amended complaint.

The facts are simple. Plaintiff, William Pabitzky, was insured by defendant State Farm Mutual Automobile Insurance Company (State Farm) under a policy written by that company’s agent, defendant Norv Frager. In the early morning of July 30, 1980, plaintiffs were severely injured in an automobile collision with a vehicle driven by Lance Kiss, an uninsured driver. They sued Mr. Frager and State Farm, on the theory (stated in several causes of action) that Frager had breached his duty

to them

by not advising them to carry uninsured motorist insurance in an amount greater than the

[403]

statutory minimum. Plaintiffs tried, through five versions, to state a cause of action until their sixth attempt (fifth amended complaint) suffered demurrers sustained without leave to amend.

1

They have appealed; we affirm.

I

As cases have held, the purpose of the uninsured motorist statute is not to make all drivers

whole

from accidents with uninsured drivers, but to make sure that drivers injured by such drivers are protected to the extent that they would have been protected had the driver at fault carried the statutory minimum of liability insurance.

2

We know of no duty on the part of an insurance broker to do more than to call the attention of his customer to the availability of the statutory provision and, unless expressly told to omit it, to see that the policy complies with the statute. Since Mr. Frager owed to his client, William Pabitzky, no duty other than to secure for him a policy meeting the statutory requirement (which he did) none of plaintiff’s four imaginatively phrased causes of action stated viable causes of action, and demurrers to them by Mr. Frager were properly sustained.