This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Rina Hayun,



Arnold W. Ribnick Agency, Inc.,


Metropolitan Property and Casualty Company,


Filed October 27, 1998


Foley, Judge*

Hennepin County District Court

File No. 0712927

Nathan W. Hart, Jardine, Logan & O'Brien, PLLP, 2100 Piper Jaffray Plaza, 444 Cedar St., St. Paul, MN 55101 (for appellant)

James O. Redman, Christopher R. Morris, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 S. Sixth St., Minneapolis, MN 55402 (for respondent)

Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Foley, Judge.


FOLEY, Judge

Appellant challenges the trial court's grant of summary judgment, alleging there are genuine issues of material fact as to whether respondent negligently failed to schedule jewelry on appellant's homeowner's insurance policy and whether special circumstances existed between the parties. Because we find there are no genuine issues of material fact and the trial court did not err in its application of the law, we affirm.


Appellant Rina Hayun obtained homeowner's insurance from respondent Ribnick Agency. At the time, appellant owned jewelry valued at approximately $80,000, none of which was scheduled on her homeowner's insurance policy. When the jewelry was stolen two years later, appellant filed a claim with respondent and learned she would be reimbursed $2,500 for the stolen jewels (the maximum reimbursement amount allowed for non-scheduled valuables).

Appellant, who does not speak English, obtained the insurance with the help of her brother-in-law, David Nemer, an attorney who speaks both English and appellant's native Hebrew. Appellant obtained the insurance via a three-way telephone call among herself, respondent, and Nemer. Appellant claims that she specifically requested her jewelry be scheduled and assumed it had occurred. Respondent, however, asserts that it was never instructed to schedule her jewelry. In fact, respondent denies that the telephone conversation ever took place. Nemer does not recall any details of the three-way telephone conversation other than to say that had appellant requested that her jewelry be scheduled, he would have translated her request to respondent.

After discovery, the trial court granted respondent's motion for summary judgment. This appeal followed.


1. Summary Judgment Motion

"On an appeal from summary judgment, we must examine two questions, whether there are any genuine issues of material fact and whether the lower courts erred in their application of the law." Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997). "A reviewing court must view the evidence in the light most favorable to the party against whom summary judgment was granted." Vetter v. Security Continental Ins. Co., 567 N.W.2d 516, 520 (Minn. 1997). To defeat a motion for summary judgment the "nonmoving party must offer significant probative evidence tending to support its complaint." Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989).

Appellant claims that during the three-way conversation between herself, respondent, and Nemer she specifically instructed respondent to schedule her jewelry. However, the only evidence to support appellant's contention was her own testimony.[1] It seems impossible to determine if appellant's request was ever made since appellant cannot speak English, Nemer does not recall any details of the telephone conversation, and respondent denies the call took place.

Appellant's evidence is based solely on her recollection, not "significant probative evidence" sufficient enough to defeat a grant of summary judgment. The trial court stated:

The Court can imagine no evidence that [appellant] could introduce at trial other than what has already been presented to support her contention that she informed [respondent] of her desire to cover her jewelry. * * * [T]here isn't even an inference that [appellant] requested her jewelry be scheduled, only conjecture. Thus, [appellant] has not raised a genuine issue of material fact.

We agree with the trial court's determination and conclude there are no material fact issues.

2. Special Circumstances

In a negligence action against an insurance agent, the plaintiff must demonstrate the existence of a duty, breach of the duty, causation, and damages. Johnson v. Urie, 405 N.W.2d 887, 891 (Minn. 1987). An insurance agent has the duty to exercise the skill and care that a reasonable, prudent person engaged in the insurance business would use under similar circumstances. Johnson v. Farmers and Merchants State Bank of Balaton, 320 N.W.2d 892, 898 (Minn. 1982). This duty is limited to the obligation to act in good faith and follow instructions. Gabrielson v. Warnemunde, 443 N.W.2d 540, 543 (Minn. 1989). However, if "special circumstances" exist between the parties, the insurance agent might be under a duty to take some sort of affirmative action, rather than just follow the instruction of his client. Id. at 543-44.

Minnesota courts have found that special circumstances existed in few cases. See Beauty Craft Supply & Equip. Co. v. State Farm Fire and Cas. Ins. Co., 479 N.W.2d 99, 101-02 (Minn. App. 1992) (holding special circumstances may arise when insured delegates decision-making authority to agent and agent acts as insurance consultant); Osendorf v. American Family Ins. Co., 318 N.W.2d 237, 238 (Minn. 1982) (finding insurance agent may be under obligation to update insurance policy if special circumstances exist, including whether agent knew insured was unsophisticated in insurance matters and whether agent knew insured was relying on agent to procure adequate coverage); Johnson v. Urie, 405 N.W.2d at 889 (holding that duty to "offer, advise or furnish insurance coverage" may arise from "circumstances of the transaction and the relationship of the agent vis-à-vis the insured").

While it is true that this insurance transaction was different from most, other than the language barrier this record does not show that special circumstances existed. Appellant, however, argues that the communication barrier alone was enough to justify a finding of special circumstances. We disagree.

Appellant fails to overcome the fact that she had a presumably knowledgeable relative assist her in procuring the policy. Nemer was versed in both languages and he himself had a homeowner's insurance policy with respondent that included scheduled items. Nemer also had a history of translating documents for appellant. Furthermore, respondent neither admitted to a continuing obligation to update the policy nor seemed to have anything more than a typical agency relationship with appellant. Appellant highlights the fact that respondent never met with her directly; however, once the policy was purchased there was no need to meet, especially if the two could not speak to each other.

Thus, we hold that no special circumstances existed between the parties giving rise to a heightened duty.


*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Even if appellant made the request to Nemer to have the jewelry scheduled, there is no evidence in the record to show that Nemer made the request to respondent.