Roy v. Dellinger

CIACCIO, Judge, concurring in part and dissenting in part. I agree with the majority opinion except for the remand on the simple negligence issue. The opinion presupposes a duty owed by defendant to plaintiff, and a breach of that duty. Considering the clear language of the subscription documents (offer may be rejected, no guarantee of acceptance), I find no duty owed to plaintiff except to transmit his application timely, which was done. Reviewing the petition, I find no allegations of negligence because of defendant’s failure to call plaintiff on December 31, 1984, to advice him that his application had not been accepted; that theory is urged *497 only in plaintiffs brief. I find that any duty to determine on December 31, 1984, whether plaintiffs application had been accepted was with plaintiff and his CPA rather than with defendant. I would affirm the judgment of the district court. BARRY, J., joins.