Opinion
12998 Index No. 650153/16 Case No. 2019-04604
01-28-2021
Jenny JIN CHAI–CHEN et al., Plaintiffs–Appellants, v. METROPOLITAN LIFE INSURANCE COMPANY et al., Defendants, Cui Li also known as Jessica Li, individually and as an agent of Metropolitan Life Insurance Company, Defendant–Respondent.
Heng Wang & Associates, P.C., New York (Heng Wang of counsel), for appellants. Winget, Spadafora & Schwartzberg, LLP, New York (Christina M. Rieker of counsel), for respondent.
Heng Wang & Associates, P.C., New York (Heng Wang of counsel), for appellants.
Winget, Spadafora & Schwartzberg, LLP, New York (Christina M. Rieker of counsel), for respondent.
Kapnick, J.P., Mazzarelli, Kennedy, Mendez, JJ.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered on or about October 4, 2019, which granted the motion of defendant Cui Li a/k/a Jessica Li (Li) for summary judgment dismissing the complaint as against her, unanimously affirmed, without costs.
The motion court properly dismissed the action against Li, who was acting as an insurance broker for former defendant Metropolitan Life Insurance Company. An insured has the duty to read the insurance policy or have it read to him or her, as well as the duty to correct any inaccuracies present on the insurance application ( Minsker v. John Hancock Mut. Life Ins. Co., 254 N.Y. 333, 338, 173 N.E. 4 [1930] ). Plaintiffs' argument that they are not responsible for any misrepresentations in the insurance application because they did not know how to read English is rejected. The court properly concluded that the facts reflected that plaintiffs were proficient in English.
The individual claims against Li also fail. Li was not a party to a contract between the insured or plaintiffs, and thus there is no claim against her for breach of contract. An insurance policy is "a contract between the insurer and the insured" ( Bovis Lend Lease LMB, Inc. v. Great Am. Ins. Co., 53 A.D.3d 140, 145, 855 N.Y.S.2d 459 [1st Dept. 2008] ). Nor is there a viable claim for a breach of the implied covenant of good faith and fair dealing against Li, which is premised upon a contractual relationship.
Plaintiffs' assertion that they had a confidential, special or fiduciary relationship with Li is also not persuasive. While the relationship between an insurance agent and an insured is generally not the type of special relationship giving rise to advisory duties, "[e]xceptional and particularized situations may arise in which insurance agents, through their conduct or by express or implied contract with customers and clients, may assume or acquire duties in addition to those fixed at common law" ( Murphy v. Kuhn, 90 N.Y.2d 266, 272, 660 N.Y.S.2d 371, 682 N.E.2d 972 [1997] ). No such relationship existed here.
By plaintiffs' own admission, this was the first time that plaintiffs or the insured had worked with Li to purchase insurance. Plaintiff Jenny's preexisting personal relationship with Li, which the complaint's allegations suggest was a friendship with a former coworker, did not create a heightened or fiduciary duty. Plaintiffs' claim against Li for negligent misrepresentation, which was also premised upon the existence of a special relationship or heightened duty, similarly does not withstand scrutiny ( J.A.O. Acquisition Corp. v. Stavitsky, 8 N.Y.3d 144, 148, 831 N.Y.S.2d 364, 863 N.E.2d 585 [2007] ).
Plaintiffs' negligence claim against Li was also properly dismissed. Li met her common-law duty to obtain coverage for her client, despite the fact it was later disclaimed (see e.g. Murphy, 90 N.Y.2d at 270, 660 N.Y.S.2d 371, 682 N.E.2d 972 ; Koloski v. Metropolitan Life Ins. Co., 5 Misc.3d 1028(A), 2004 N.Y. Slip Op. 51596(U), 2004 WL 2903626 ). It was not Li's responsibility to make sure that the information on the application was complete and accurate, despite any alleged language barriers.
We have considered plaintiffs' remaining contentions and find them unavailing.