Crum & Forster Indemnity Company v. Robb Report Media LLC

Background

Crum & Forster insured Ferrari’s 2018 Ferrari 812 Superfast. Ferrari loaned the car to Robb Report Media LLC for an automotive event. Robb Report representative Robb Rice accepted the car and signed a vehicle loan agreement stating that the borrower was responsible for damage and had to return the vehicle in the same condition, except for normal wear and tear.

Event attendees who wanted to drive the cars had to sign electronic waivers. Anatoly Borokhovich and Emil Borokhovich each signed a waiver containing links to agreements from the participating car manufacturers, including Ferrari’s vehicle loan agreement. The Borokhoviches said that no one explained the waivers to them and that they did not click or read the links.

Anatoly Borokhovich crashed the Ferrari at the event, totaling it. Emil Borokhovich was a passenger. Crum & Forster paid Ferrari $292,508.35 for the loss and sued Robb Report and the Borokhoviches for breach of contract, and all defendants for negligence.

Motion and Arguments

Crum & Forster moved for partial summary judgment on its breach-of-contract claims. Summary judgment is a ruling entered when the evidence shows no genuine dispute about a fact that could affect the result and the moving party is entitled to judgment under the law.

The defendants argued that Crum & Forster could not enforce the contracts because it was not a contracting party or third-party beneficiary. Robb Report also argued that it had not breached the agreement, had not caused damage to Crum, and was not bound by the agreement as interpreted by Crum. The Borokhoviches argued that the agreement was not enforceable against them because they had not clicked the links or reviewed the linked documents.

Court’s Analysis

The court held that the defendants breached their agreements by not returning the Ferrari in the same condition and not paying for the damage. The loan agreement expressly required Robb Report to return the vehicle in the same condition and made it responsible for damage. The waivers signed by the Borokhoviches incorporated the loan agreement.

The court rejected Robb Report’s argument that the agreement did not make it responsible for damage caused by someone other than Rice. It found that the written contract’s plain language required the borrower to return the vehicle in the same condition and pay for damage, and it found the contract unambiguous.

The court also rejected the Borokhoviches’ argument that they were not bound because they did not click or read the links. The waiver stated immediately above the signature line that signing meant agreeing to the terms in the linked forms. The court found that the links were conspicuous, identified the Ferrari loan agreement, and gave sufficient notice of the responsibility imposed by that agreement. The court also found evidence that the Ferrari link directed users to the loan agreement and noted that the Borokhoviches offered no contradictory evidence.

The court overruled the defendants’ evidentiary objections to the extent it relied on the challenged evidence and found the remaining objections moot.

Damages and Disposition

The court found that Crum & Forster had suffered damages because it paid $292,508.35 to Ferrari and that the claimed loss resulted from Robb Report’s breach. It also found that Crum had offered evidence of the amount it paid. But the court deferred the separate issue of Crum’s legal entitlement to recover damages. Crum relied on equitable subrogation—the principle that an insurer that pays a loss may seek recovery from the responsible party—and on its asserted status as an intended beneficiary of the Borokhoviches’ waivers.

The court granted in part Crum & Forster’s motion for partial summary judgment, ordered supplemental briefing on Crum’s entitlement to damages, and set the matter for a hearing on July 29, 2021. The opinion does not state that the court entered a final damages award.