Applicability of a Sales Representative Agreement & its arbitration provision; Subrogation; Atlanta Int’l Ins. Co. v. Bell; Auto-Owners Ins. Co. v. Amoco Prod. Co.; Distinguishing Auto Club Ins. Ass’n v. New York Life Ins. Co.; Elements of a negligence claim; Schultz v. Consumers Power Co.

The court held that defendant-Meemic was not entitled to invoke the subrogation doctrine and that its right to sue plaintiff-Fisk Insurance Agency arose under their Sales Representative Agreement (SRA). Further, under the plain terms of the SRA, the matter had to be returned to arbitration. Thus, Fisk’s motion for a declaratory judgment and summary disposition was properly granted. This case arose after a nonparty (W) purchased a Meemic homeowners policy through Fisk, a sales agent for Meemic. She was living in the home before closing on its purchase when a fire destroyed it. The seller’s insurer (F) notified Meemic and W that W was liable. Meemic settled with F, and then sued Fisk to recover what it paid on W’s behalf, asserting that Fisk should not have sold W the policy. That case was dismissed after the parties agreed to arbitration, but the arbitration panel apparently determined that neither the SRA nor its arbitration provision applied. Fisk then filed this declaratory action, requesting the trial “court to summarily determine and declare whether the parties’ dispute was subject to the terms of the arbitration agreement” in the SRA. Meemic argued on appeal that the trial court erred because the SRA, “including its arbitration provision, did not apply to Meemic’s subrogation claims since [W], the subrogor, was not a party to” the SRA. The court disagreed. While Meemic contended that W could have asserted a negligence claim against Fisk, the court concluded that such a claim would fail because she “suffered no damages that were proximately caused by the Fisk Agency’s breach of legal duty owed to her.” Although F held W responsible for the fire, Meemic settled that claim and paid F $100,000 pursuant to W’s policy. W did not personally pay F. There was no evidence that W paid F any of her own money due to the fire. The policy she purchased from Fisk “actually insulated her from personal liability with regard to the fire and resulting damage, i.e., she got what she was entitled to receive.” Thus, W did not have any claim to enforce against Fisk so there was no claim for Meemic to enforce against Fisk through equitable subrogation. The case on which Meemic relied, Auto Club, was factually distinguishable and did not support its position. Affirmed.