United States District Court, D. South Carolina, Orangeburg Division
John W. Smith and Donna B. Smith, Plaintiffs,
Universal Property and Casualty Insurance Co., Universal Risk Advisors, Inc., Universal Adjusting Corporation, Janelle Stevens, and The Ulmer Agency, Inc., Defendants.
ORDER AND OPINION
the court is a motion to remand the case to the Court of
Common Pleas for Orangeburg County,  South Carolina filed by
Plaintiffs John W. and Donna B. Smith
(“Plaintiffs”) (ECF No. 9.) Defendants Universal
Property and Casualty Insurance Co., Universal Risk Advisors,
Inc., Universal Adjusting Corporation, Janelle Stevens
(together, “Universal”), and The Ulmer Agency,
Inc. (“Ulmer”) (collectively,
“Defendants”) oppose Plaintiffs' motion and
ask the court to retain jurisdiction. (ECF Nos. 19, 20.) For
the reasons set forth herein, the court
GRANTS Plaintiffs' motion to remand (ECF
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
October 4, 2016, Plaintiffs filed a complaint in the Court of
Common Pleas for Orangeburg County, South Carolina,
containing the following allegations. (ECF No. 1-1.)
Plaintiffs, citizens of South Carolina, had a homeowner's
insurance policy with Universal, a non- South Carolina
insurer, which was procured through the services of Ulmer, a
South Carolina insurance agency. (Id. at 5-7.) On
June 25, 2015, a fire destroyed Plaintiffs' home, and, on
the following day, Plaintiffs filed a claim under the policy.
(Id. at 7.) In response to the claim and numerous
other requests, Universal tendered several offers, but
Plaintiffs allege that none of the offers were up to the full
coverage limits in the policy. (Id. at 7-8.)
respect to Ulmer, the complaint alleges that
[Ulmer] undertook a duty to advise Plaintiffs by assuring
Plaintiffs that [Ulmer] would procure insurance that would
meet and satisfy Plaintiffs' needs, namely to provide
Plaintiffs with replacement cost coverage up to the limits of
the policy. Moreover, [Ulmer] knew or should have known their
advice was being requested and relied upon by Plaintiffs.
Additionally, [Ulmer] knew that Plaintiffs had in fact
reposed special trust and confidence in them with respect to
their recommendation and selection of coverage for
Plaintiffs' needs. By assuming or undertaking the duty to
advise Plaintiffs and act as their fiduciary, [Ulmer] was
required to exercise due care in giving advice and so acting.
[Ulmer] breached its duty of care and thereby acted
negligently by failing to procure insurance coverage that met
Plaintiffs' needs . . . .
. . . .
Plaintiffs directly informed [Ulmer] . . . of the coverage
needed on their home, including a policy that would pay full
replacement cost up to the policy limits.
[Ulmer] . . . represented to Plaintiffs that the Policy
procured for Plaintiffs [Ulmer] would meet Plaintiffs'
. . . .
As described above, [Ulmer] unambiguously warranted and
promised Plaintiffs that [Universal] would provide the
requested insurance coverage for damages caused to
Plaintiffs' home or that they would procure the coverage
necessary to protect Plaintiffs and their home.
. . . .
[Ulmer] . . . had and has fiduciary relationships and owed
fiduciary duties and obligations to Plaintiffs. [Ulmer] at
all times relevant was or should have been aware of the
specific expectations and insurance needs of Plaintiffs, its
failure to properly investigate the insurance coverage it
procured and recommended for Plaintiffs, its failure to
properly consider Plaintiffs' expectations and needs, and
its failure to properly safeguard the rights and interests of
Plaintiffs as described above.
. . . . [Ulmer] breached its fiduciary duties owed to
Plaintiffs, including but not limited to the duty to perform
the . . . promise of providing insurance coverage to