NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHELLE L. MORIARTY, Individually, 

as Successor-In-Interest to Heron D. 

Moriarty, Decedent, on Behalf of the Estate 

of Heron D. Moriarty, and on Behalf of the 

Class, 

Plaintiff-Appellant, 

 v. 

BAYSIDE INSURANCE ASSOCIATES, 

INC., a California Corporation, 

Defendant-Appellee, 

and 

AMERICAN GENERAL LIFE 

INSURANCE COMPANY, a Texas 

Corporation; DOES, 1 thru 20 Inclusive, 

Defendants.

No. 20-56139 

D.C. No. 

3:17-cv-01709-BTM-WVG 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Barry Ted Moskowitz, District Judge, Presiding

Submitted September 1, 2021**

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

FILED

SEP 7 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Pasadena, California

Before: IKUTA, BENNETT, and R. NELSON, Circuit Judges.

Plaintiff-Appellant Michelle Moriarty appeals the district court’s grant of 

summary judgment to Defendant-Appellee Bayside Insurance (“Bayside”). Bayside 

was Moriarty’s husband’s insurance agent when he purchased a life insurance policy 

from American General Life Insurance Company (“AGLIC”) in September 2012, 

with Moriarty as the sole beneficiary. The policy’s premiums went unpaid for 

several months in 2016, and the policy lapsed due to those unpaid premiums nine 

days before Moriarty’s husband died.

Moriarty brought a putative class action against AGLIC and professional 

negligence and negligent misrepresentation claims against Bayside. She contends

that Bayside owed her “a general and special duty of care to investigate the status of 

[the life insurance policy] and its potential forfeiture and to fully and promptly 

communicate . . . what actions and steps could and should be taken to avoid 

termination of the Policy.” She alleges that Bayside breached that duty with its 

handling of her email request for certain policy information that she sought so that

she could pay the overdue policy premiums before the policy lapsed. Bayside 

responded with the information that Moriarty would need to make a payment and 

told Moriarty that it was “trying” to have a team follow up with AGLIC. It never 

without oral argument. See Fed. R. App. P. 34(a)(2).
3 

followed up.

The district court granted summary judgment to Bayside on the professional 

negligence claim, finding that Bayside did not owe the duty that Moriarty alleged. 

Later, the parties stipulated to the dismissal of Moriarty’s negligent 

misrepresentation claim, as duty is an element of both claims. The district court then 

entered final judgment for Bayside under Federal Rule of Civil Procedure 54(b). We

review the district court’s grant of summary judgment de novo and affirm. Tzung v. 

State Farm Fire & Cas. Co., 873 F.2d 1338, 1339 (9th Cir. 1989).

In California, “whether a duty of care exists is a question of law for the court.” 

Fitzpatrick v. Hayes, 67 Cal. Rptr. 2d 445, 448 (Ct. App. 1997) (citation and 

alteration omitted). In the usual case, “[i]nsurance [agents] owe a limited duty to 

their clients, which is only to use reasonable care, diligence, and judgment in 

procuring the insurance requested by an insured.” Pac. Rim Mech. Contractors, Inc. 

v. Aon Risk Ins. Servs. W., Inc., 138 Cal. Rptr. 3d 294, 297 (Ct. App. 2012) (quotation 

marks and citation omitted). Thus, in Kotlar v. Hartford Fire Insurance, 100 Cal. 

Rptr. 2d 246 (Ct. App. 2000), the California Court of Appeal held that an insurance 

agent does not owe an insured a general duty to notify him of an insurer’s intent to 

cancel his insurance policy due to nonpayment of premiums. Id. at 250. California 

will impose a special duty beyond this limited duty “when—but only when—one of 

. . . three things happens.” Fitzpatrick, 67 Cal. Rptr. 2d at 452 (emphasis added).
4 

First, California will impose a special duty when “the agent misrepresents the 

nature, extent or scope of the coverage being offered or provided.” Id. Moriarty 

does not allege that Bayside misrepresented the nature, extent, or scope of her 

husband’s life insurance policy. Unlike in Free v. Republic Insurance, 11 Cal. Rptr. 

2d 296 (Ct. App. 1992), Bayside answered Moriarty’s email inquiry with correct 

information. Cf. id. at 297–98. And unlike in Paper Savers, Inc. v. Nasca, 59 Cal. 

Rptr. 2d 547 (Ct. App. 1996), Bayside did not induce Moriarty’s husband to 

purchase the life insurance policy through affirmative misrepresentations. Cf. id. at 

554.

Second, California imposes a special duty to volunteer certain information 

regarding additional or different coverage when “there is a request or inquiry by the 

insured for a particular type or extent of coverage.” Fitzpatrick, 67 Cal. Rptr. 2d at 

452. This exception, by its own terms, doesn’t apply here. Cf. Westrick v. State 

Farm Ins., 187 Cal. Rptr. 214, 217–19 (Ct. App. 1982) (holding that an insurance 

agent has “an affirmative duty of disclosure” during the sale of an insurance policy

if a client’s inquiry puts the agent on notice that the policy will not meet the client’s

unique needs). 

Third, California will impose a special duty when “the agent assumes an 

additional duty by either express agreement or by ‘holding [it]self out’ as having 

expertise in a given field of insurance being sought by the insured.” Fitzpatrick, 67 
5 

Cal. Rptr. 2d at 452. Bayside did not enter into an express agreement with the 

Moriartys to tell them about the status of the life insurance policy. Its statement that 

it was “trying to have a team follow up on status” was not an express agreement to 

do so. Nor did Bayside hold itself out as a life insurance expert. Unlike in Murray 

v. UPS Capital Insurance Agency, Inc., 269 Cal. Rptr. 3d 93 (Ct. App. 2020), 

Bayside does not specialize in the type of insurance at issue, cf. id. at 110, and 

Moriarty does not otherwise show that Bayside held itself out as a life insurance

expert.

Moriarty also argues that Bayside owed her a duty because of their “special 

relationship.” But Moriarty has not shown that Bayside was in a more “unique 

position” than the typical insurance agent to protect her or her husband from injury. 

See Brown v. USA Taekwondo, 483 P.3d 159, 166 (Cal. 2021). Finally, Moriarty 

argues that the panel should impose an affirmative duty on Bayside under Rowland 

v. Christian, 443 P.2d 561 (Cal. 1968). But the California Supreme Court recently 

held in Brown v. USA Taekwondo, 483 P.3d 159, that “[t]he multifactor test set forth 

in Rowland was not designed as a freestanding means of establishing duty, but 

instead as a means for deciding whether to limit a duty derived from other sources.” 

Id. at 166.

Thus, as the district court found, Moriarty’s professional negligence and 

negligent misrepresentation claims fail because she has not established an essential 
6 

element—duty. See Ericksson v. Nunnik, 120 Cal. Rptr. 3d 90, 100 (Ct. App. 2011); 

Eddy v. Sharp, 245 Cal. Rptr. 211, 213 (Ct. App. 1988).1

AFFIRMED.

1 Because Moriarty fails to establish that Bayside assumed any special duty, 

we need not reach her argument that under Biakanja v. Irving, 320 P.2d 16 (Cal. 

1958), Bayside’s duties to her husband extend to her as the sole beneficiary of her 

husband’s life insurance policy.