Nixon Peabody, Rochester, for Plaintiff. Farrell Fritz, New York, for Defendant.
Nixon Peabody, Rochester, for Plaintiff. Farrell Fritz, New York, for Defendant.
DAVID SCHMIDT, J.
Upon the foregoing papers, plaintiff Metro Missions, Inc., moves for an order, pursuant to CPLR 3212, granting summary judgment on its amended complaint. Defendant Crum & Forster Specialty Insurance Company (Crum) moves for an order, pursuant to CPLR 2221, granting renewal of Crum's prior motion for dismissal and upon renewal, granting summary judgment dismissing plaintiff's amended complaint pursuant to CPLR 3212 and 3211(a)(7). Defendants USI Holdings Corporation (s/h/a U.S. 1 Holdings as Successor in Interest of Dodge Warren & Peters Insurance Services, Inc. [DWP] )(hereinafter USI) and James F. Barth move for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's amended complaint.
Plaintiff commenced this action for breach of contract, fraud, negligence, indemnification, negligent misrepresentation, breach of fiduciary duty, fraudulent inducement and unilateral mistake based upon the issuance of a “self-insured retention” (SIR) insurance policy to cover plaintiff's fleet of vehicles. Plaintiff is a corporation formed to provide free transportation to congregants in and around Brooklyn to religious services and events held at Metro International Church. In support of its operation, plaintiff relied on 80–90 multi-passenger vehicles received through donations. Plaintiff began insuring its vehicles thorough an insurance broker, P.A. Post Agency (Post), in June 1998. Over the following three years, plaintiff's insurer was compelled to pay significant sums to settle claims. When plaintiff sought to renew its coverage for the 2001–2002 policy year, Post was unable to obtain a policy from the traditional insurance market and was compelled to seek insurance through the New York Automobile Insurance Plan (N.Y.AIP), a mechanism established pursuant to Insurance Law article 53 to provide liability and physical damages coverage to those insureds unable to obtain auto insurance in the traditional market. For the period June 7, 2001 to June 7, 2002, plaintiff purchased a policy with $500,000.00 liability limits for a total cost of $838,907.00. Prior to the expiration of the policy period, plaintiff instructed Post to obtain quotes for renewal of coverage. Plaintiff purchased a plan through NYAIP from AIU Insurance Company for the 2002–2003 policy year which provided liability limits of $500,000.00 with an annual premium of $936,645.00. The policy was bound and issued on June 6, 2002. Plaintiff thereafter determined that the policy was unaffordable and sought the services of Barth, a broker employed by DWP, upon the recommendation of an attorney who represented plaintiff's pastor, Rev. Bill Wilson. At the time, DWP was based in California but licensed in New York State as a non-resident insurance agent/broker.
Rev. Pasquale Imbimbo was given the authority by Rev. Wilson to obtain quotes and purchase policies of insurance through Barth and DWP. Several quotes procured by DWP were presented to Rev. Imbimbo but declined as the annual premiums were not affordable to plaintiff. On or about June 17, 2002, DWP sent Rev. Imbimbo a proposal prepared by Barth for commercial automobile excess liability insurance with two options. Each of the options called for a retention in the amount of $250,000, with plaintiff being responsible for losses and expenses up to the retention amount. Each option further required the use of a third-party administrator to administer and adjust any and all claims within the retention amount. Rev. Imbimbo discussed the proposals with Barth and thereafter met with Rev. Wilson before making a selection. After discussing the plan with Rev. Wilson, it was agreed that plaintiff would select coverage option “B” under the proposal presented by Barth, which provided liability coverage of $750,000 in excess of the retention amount. Coverage was bound with Crum on June 20, 2002, at which time plaintiff terminated the more costly policy it obtained through Post. The Crum policy covered plaintiff for excess liability (beyond the retention amount) for the term commencing on June 20, 2002 and ending on June 20, 2003. An amended binder was issued on June 28, 2002, retroactive to June 20, 2002, to include UM/UIM/PIP coverage above the retention amount. Plaintiff alleges that in or around August 2002, it began experiencing problems with the Department of Motor Vehicles (DMV) regarding the registration of plaintiff's vehicles, apparently due to the absence of primary liability insurance required under the Vehicle and Traffic Law (VTL). At some point, plaintiff contacted Barth about receiving New York State Insurance Identification Cards for its vehicles to serve as proof of insurance. On or about September 18, 2002, insurance cards were issued by Crum. As to the problems plaintiff encountered registering its vehicles, Barth informed plaintiff of the following in a letter dated February 19, 2003:
I've recently been in contact with the Department of Motor Vehicle [sic] for the State of New York and have been informed about why we're experiencing problems with vehicle registrations. The DMV has informed me that with self insuring for the first dollar-$250,000 in the State of New York you must first submit to the Department of Motor Vehicles for approval to Self–Insure and then be granted a Self Insured Certificate. In order for this transaction to take place the following items are needed:
2 Years Financial Audit
Five Years Claims History
Copy of Designated Driving Program
List of all Insurable Vehicles
As a result of the inability to register and legally operate its vehicles, plaintiff ceased paying the premiums under the Crum policy. The policy was thereafter cancelled by Crum as of March 12, 2003.
In the mean time, on July 28, 2002, one of plaintiff's vehicles covered under the Crum policy was involved in an accident. Plaintiff thereafter called upon Hertz Claims Management (Hertz), the third-party adjuster plaintiff was required to use under the policy, to adjust the claims arising from the accident. Because of a fee dispute, plaintiff terminated Hertz and retained Nixon Peabody LLP (which represents plaintiff in the instant action) to handle the claims. The accident precipitated the commencement of a personal injury lawsuit against plaintiff on August 3, 2003 by four of the passengers involved in the incident. Nixon Peabody LLP notified Crum of the accident on September 29, 2003. An action was thereafter brought against plaintiff by two additional passengers on October 24, 2003. Nixon Peabody LLP provided Crum with periodic updates during the pendency of these actions, and in a letter dated March 5, 2004, Nixon Peabody LLP informed Crum that given the number of plaintiffs in the actions and the nature of their injuries, the amount of the award against plaintiff would likely exceed the $250,000 retention amount. However, the lawsuits and claims were eventually resolved for $56,163.75 and, consequently, Crum was not called upon to pay any losses or claims arising from the accident.
On March 18, 2005, plaintiff commenced the instant action against Barth and USI, the alleged successor by merger to DWP, asserting causes of action for breach of contract, fraud, negligence and indemnification. On March 28, 2008, plaintiff filed an amended complaint adding causes of action against Barth and USI for negligent misrepresentation and breach of fiduciary duty and asserting causes of action for fraudulent inducement, unilateral mistake and indemnification against additional party defendant Crum. While the amended complaint frames the malfeasance of Barth/USI as a failure to obtain “theft and collision” insurance as requested, plaintiff's present contention is that it specifically requested primary liability insurance sufficient to register its vehicles in New York State, but that Barth/USI instead produced a plan which was an excess liability policy requiring plaintiff to be certified as “a self insurer” in order to register its vehicles. Plaintiff argues that Barth was ignorant of the legal requirements for self insurance in New York State and failed to take the steps necessary to assist plaintiff in the certification process before presenting the policy proposal. With respect to Crum, plaintiff seeks rescission of the policy based upon plaintiff's mistaken belief that the subject policy was sufficient to allow registration of its vehicles, coupled with Crum's “fraud” in issuing insurance cards which implied that the subject policy was sufficient for New York State registration purposes.
By order dated July 30, 2008 (Hon. David B. Vaughan, J.), Crum's pre-answer motion to dismiss the complaint and to treat the motion as one for summary judgment under CPLR 3212(b) was denied. From January 8, 2009 through September 14, 2010, the parties conducted examinations before trial of Rev. Imbimbo, Barth, Crum witnesses Arleen Paladino and Michael McGowan and nonparty witness Tom Post. A note of issue was filed by plaintiff on June 27, 2011. Plaintiff and Barth/USI now bring the instant motions for summary judgment, while Crum seeks renewal of its prior motion which was denied on July 30, 2008 and upon renewal for an order granting summary judgment. Taking into consideration the substantial discovery completed since the time of Crum's initial motion, that part of Crum's motion for renewal is granted. The court will consider the merits of Crum's instant motion for summary judgment.
In order to obtain summary judgment, a movant must establish its defense or cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law (Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967  ). Once the moving party has made a prima facie showing of entitlement to summary judgment, the burden shifts to the opponent to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which requires a trial ( Id.; Alvarez v. Prospect Hosp., 68 N.Y.2d 320  ).
Claims against Barth and USI
Breach of Contract/Negligence
“An insurance agent or broker may be held liable under theories of breach of contract or negligence for failing to procure insurance. An insured must show that the agent or broker failed to discharge the duties imposed by the agreement to obtain insurance, either by proof that it breached the agreement or because it failed to exercise due care in the transaction” (Jual Constr. Ltd. v. A.C. Edwards, Inc., 74 AD3d 1150, 1150 [citations omitted] ). According to the testimony of Rev. Imbimbo, he requested from Barth “basic insurance to comply with the New York state law that would enable us to register our vehicles and operate them.” (EBT Testimony, Imbimbo, p. 55). Rev. Imbimbo further testified that he requested “cards” to be issued with the policy which would enable plaintiff to register the vehicles (EBT Testimony, Imbimbo, p. 57).
It is not in dispute that the proposal from Barth was for a policy which provided only excess liability coverage, not primary or “first dollar” coverage, and that plaintiff would have been required to self insure or otherwise obtain separate coverage for the first $250,000 in order to register its vehicles. “[A]n insured has an obligation to read his or her policy and is presumed to have consented to its terms” (Katz v. Am. Mayflower Life Ins. Co. of NY, 14 AD3d 195, 198 ,affd5 NY3d 561  ). The policy clearly recites that the retained amount is the responsibility of the insured, and that the payment of defense expenses will be provided only when such expenses, in combination with associated damages, exceed the retained amount. Moreover, in his discussions with Barth concerning the term “automobile excess liability” coverage, Rev. Imbimbo understood that “we pay the first 250,000, that was the deductible, and then after that, the automobile insurance would kick in” (EBT Testimony, Imbimbo, p. 80). It is therefore established that plaintiff was aware and accepted that the subject policy did not provide “primary” or “first dollar coverage” but rather coverage only in excess of the $250,000 retention and that plaintiff was responsible for the payment of any claims and losses within the retention amount. The actions of plaintiff following the accident (e.g. engaging the third-party administrator rather than filing an immediate claim with the insurer) further indicates plaintiff's understanding that the policy did not provide first dollar coverage. Accordingly, plaintiff may not argue that it had been mislead into believing that primary or first dollar coverage was available under the policy it purchased, and any claims herein based on the absence of primary coverage must fail.
Contrary to plaintiff's contention, the February 19, 2003 letter from Barth, which includes the term “first dollar” cannot be reasonably interpreted to mean that the subject policy provided first dollar insurance. Rather, the statement refers to the necessity to self-insure as a means of providing primary coverage for the first $250,000 excluded by the policy.
In the context of a breach of contract or negligence action against an insurance broker, “[l]iability is limited to that which would have been borne by the insurer had the policy been in force' “ (Jual Constr. Ltd., 74 AD3d at 1151, quoting Structural Bldg. Prods. Corp. v. Business Ins. Agency, 281 A.D.2d 617, 620 , quoting American Motorists Ins. Co. v. Salvatore, 102 A.D.2d 342, 346  ). Thus, an insurance broker who negligently fails to procure requested insurance “stands in the shoes of the insurer” and is liable to provide for the insured's defense in the underlying action and to indemnify the insured for any judgment which would have been covered by the policy (Brian Fay Const., Inc. v. Morstan General Agency, Inc., 90 AD3d 796  ). Insofar as plaintiff's claims are grounded on the failure of Barth/USI to obtain insurance sufficient to allow plaintiff to register its vehicles, the liability of Barth/USI is limited to the damages sustained by plaintiff by reason of its inability to register its vehicles.
Plaintiff does not identify any specific monetary injury which flowed from the inability to register its vehicles, i.e., losses sustained as a result of not having vehicles on the road. It appears from the record that despite any registration problems, plaintiff still operated its vehicles and provided its free service to congregants throughout the policy term. In a supplemental response to Crum's demand for interrogatories, dated December 20, 2010, plaintiff stated that it “will not be seeking recovery of damages resulting from the shutting down of its charitable programs, which resulted from Metro not being able to use its vehicles in connection with its charitable endeavors.”
In its moving and opposition papers, plaintiff asserts that it nonetheless sustained damages by paying approximately $400,000 in premiums for insurance that it did not request or expect. Plaintiffs rely on Dornberger v. Met. Life Ins. Co. (961 F Supp 506  ) for the proposition that premiums paid for a policy which does not provide what was expected constitute recoverable damages. However, the Dornberger case, which involved the issuance of an illegal policy and fraudulent practices on the part of the insurer, is distinguishable.
Contrary to the contentions of plaintiff, the insufficiency of the subject policy for vehicle registration does not render the policy illegal under VTL §§ 312 and 316. VTL § 312(1)(a) provides, in part, that “[n]o motor vehicle shall be registered in this state unless the application for such registration is accompanied by proof of financial security which shall be evidenced by proof of insurance or evidence of a financial security bond, a financial security deposit or qualification as a self-insurer under section three hundred sixteen.” VTL § 316 provides, in part, that “[t]he commissioner, in his discretion, may upon the application of a person having registered in his name in this state more than twenty-five motor vehicles, issue a certificate of self-insurance when he is reasonably satisfied that such person is possessed and will continue to be possessed of financial ability to respond to judgments obtained against such person, arising out of the ownership, maintenance, use or operation of any such person's motor vehicles.”
While the subject excess liability policy could not, by itself, serve as proof of financial security under the VTL, and that plaintiff would have to be certified as a self insurer in order to register its vehicles, the above statutes do not otherwise prohibit the issuance of such a policy to a vehicle owner. Plaintiff points to no statute or regulation that an excess liability policy is without force and effect if the insured does not qualify as a self insurer.
To the extent plaintiff may argue that the policy violates Insurance Law § 3420(f)(1) as it does not provide the statutorily required UM/UIM coverage, Insurance Law § 3103(a) states that “except as otherwise specifically provided in this chapter, any policy of insurance or contract of annuity delivered or issued for delivery in this state in violation of any of the provisions of this chapter shall be valid and binding upon the insurer issuing the same, but in all respects in which its provisions are in violation of the requirements or prohibitions of this chapter it shall be enforceable as if it conformed with such requirements or prohibitions.” While the policy would be deemed to provide the required coverage, there are no UM/UIM issues raised in this matter.
The court finds that under the reasoning of Dornberger, the plaintiff's payment of premiums for a policy which was otherwise enforceable and provided the coverage according to its terms cannot constitute damages, even though the policy was insufficient for registration purposes. In Dornberger, the court found that the insured plaintiff adequately pled pecuniary loss so as to state a claim for damages on the basis of fraud by alleging that a portion of her premiums were paid towards certain items, namely the payment of a franchise tax and the provision of permanent local sales representatives to service her account in Europe, which items were not delivered as promised. Thus, the extent of the pecuniary loss could be identified. Here, while plaintiff may plead a claim for damages based upon the payment of premiums toward services, coverage or other tangible items which were not rendered by the insurer as promised, plaintiff cannot demonstrate that any portion of the premiums it paid was applied by Crum toward the policy's “ability” to qualify as proof of financial security for vehicle registration purposes. Even though plaintiff paid premiums on the belief that these requirements were satisfied by the policy, there is no way to quantify premiums applicable toward the policy's acceptability as financial security. The premiums can only be deemed to have been applied toward the services and coverage to be provided by Crum under the policy. Significantly, the Dornberger court recognized that even where the insurance policy is rescinded on the basis of illegality or fraud, the plaintiff would not be entitled to a full refund of her premiums. Rather, she would be entitled to a refund which makes allowance for the value of the insurance coverage which plaintiff received during the time her policies were in effect (Dornberger, 961 F Supp at 544, n 35). In this matter, plaintiff does not establish or even allege that it did not receive the full value of the coverage and services provided by the policy.
As plaintiff has not demonstrated pecuniary loss by reason of the policy's insufficiency as proof of financial security, there are no damages. Thus, plaintiff cannot maintain claims against Barth/USI on grounds of breach of contract or negligence for the failure to procure a contract which would satisfy registration requirements. Fraud
To recover damages for fraud, a plaintiff must prove (1) a misrepresentation or an omission of material fact which was false and known to be false by the defendant, (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it, (3) justifiable reliance of the plaintiff on the misrepresentation or material omission, and (4) injury ( see Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421 ;Shao v. 39 Coll. Point Corp., 309 A.D.2d 850, 851  ).
In its papers, plaintiff makes frequent reference to the testimony of Barth to show that the broker did not know the basics of the policy, was ignorant of self insurance requirements and lacked knowledge of whether the policy complied with New York's registration requirements. However, the cited testimony shows, at best, a mere lack of awareness, knowledge or expertise about the policy with regard to New York registration requirements. Such ignorance cannot be the basis for fraud as the alleged misrepresentations or omissions could not have been known by Barth to be false and were made to induce plaintiff to accept the proposal. Plaintiff points to no testimony or evidence from which it may be inferred that Barth presented the excess liability proposal with knowledge that it was insufficient for registration purposes as part of a scheme to induce plaintiff into purchasing the policy. At any rate, plaintiff has not demonstrated damages in the form of a pecuniary loss suffered as a result of the inability to register its vehicles. Breach of Fiduciary Duty/Negligent Misrepresentation
Absent a special relationship, a claim for breach of fiduciary duty does not lie ( see Bruckmann, Rosser, Sherrill & Co., L.P. v. Marsh USA, Inc., 65 AD3d 865  ). In Murphy v. Kuhn (90 N.Y.2d 266, 270  ), the Court of Appeals acknowledged that heightened duties may arise in the context of special relationships (Murphy, 90 N.Y.2d at 270). Citing to cases of other jurisdictions, the Murphy court extracts three circumstances that may give rise to a “special relationship,” imposing upon an agent a duty beyond mere procurement: (1) where the agent receives compensation for consultation apart from payment of premiums, (2) interaction between the agent and the insured regarding specific questions of coverage, and (3) an extended period of dealings ( id. at 272–273). The issue of whether such additional responsibilities should be recognized and given legal effect is governed by the particular relationship between the parties and is best determined on a case-by-case basis (id. at 272). “Insurance agents or brokers are not personal financial counselors and risk managers, approaching guarantor status” ( id. at 273). “Unlike the recipient of the services of a doctor, attorney or architect ... the recipient of the services of an insurance broker is not at a substantial disadvantage to question the actions of the provider of services' “ ( id. at 273 quoting Video Corp. of Am. v. Frederick Flatto Assocs., 85 A.D.2d 448, 456 ,modified58 N.Y.2d 1026  ). “[M]ere superior knowledge of a product is not enough to create a fiduciary relationship” (Fortino v. Hersh, 307 A.D.2d 899, 900 [citation and internal quotation marks omitted] ). The evidence adduced in this matter does not reveal that a special relationship existed between plaintiff and Barth/DWP. There had been no previous dealings between plaintiff and Barth/DWP when the proposal for the excess liability plan was offered and there is no allegation that plaintiff provided any compensation to Barth/DWP for the broker services apart from the commissions. Further, the testimony of Rev. Imbimo indicates that he merely sought the services of Barth to obtain quotes for a specific type of insurance—a liability policy sufficient for the registration of plaintiff's vehicles in New York. There is no allegation that Barth was called upon to make an assessment of plaintiff's insurance needs and advise plaintiff on what policies should be purchased. In short, there were no interactions between plaintiff and Barth/DWP evincing more than a typical arms-length relationship between an insurance broker and client seeking quotes. Because there was no special relationship between plaintiff and Barth/DWP, plaintiff cannot assert a claim grounded in negligent misrepresentation ( see Kay Bee Builders, Inc. v. Merchant's Mut. Ins. Co., 61 AD3d 720  ). Indemnification
Finally, plaintiffs have not established a viable claim against Barth/USI for indemnification. “The principle of common law, or implied indemnification, permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party' “ (Tiffany at Westbury Condominium v. Marelli Dev. Corp., 40 AD3d 1073, 1077 , quoting 17 Vista Fee Assoc. v. Teachers Ins. & Annuity Assn. of Am., 259 A.D.2d 75, 80 ;see D'Ambrosio v. City of New York, 55 N.Y.2d 454, 461–462  ). The remedy is based upon the principle that “every one is responsible for the consequences of his own negligence, and if another person has been compelled ... to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him” (Raquet v. Braun, 90 N.Y.2d 177, 182–183  ) “The party seeking indemnification must have delegated exclusive responsibility for the duties giving rise to the loss to the party from whom indemnification is sought,' and must not have committed actual wrongdoing itself” (Tiffany at Westbury Condominium, 40 AD3d at 1077, quoting 17 Vista Fee Assoc., 259 A.D.2d at 80). A party is not entitled to common-law indemnification if its liability is other than vicarious ( see Corley v. Country Squire Apts., Inc., 32 AD3d 978 ;Eastman v. Volpi Mfg. USA, Co., 229 A.D.2d 913  ). Based on the facts adduced in this matter, it is simply not clear how plaintiff is entitled to recover from Barth/USI the premiums paid on the theory of “indemnification.” To the extent plaintiff is seeking reimbursement of any claims paid in relation to the accident, such losses are not recoverable as they fell below the $250,000 retention amount, an exclusion understood by Rev. Imbimbo when he considered the proposal and expressly agreed to by plaintiff when it entered into the binder.
Claims against Crum
Plaintiff seeks to rescind the policy and recover premiums paid to Crum of grounds of fraudulent inducement and unilateral mistake. Plaintiff alleges that Crum's issuance of insurance cards constituted a misrepresentation as to the adequacy of the policy for New York registration purposes. To date, the reason behind Crum's issuance of the issurance cards, which was not standard practice according to the testimony of Paladino and McGowan, remains unclear. However, plaintiff cannot claim that the issuance of the cards could have induced it to bind coverage as the cards were received months thereafter. While plaintiff may have continued to pay premiums following the issuance of the cards on the belief that the vehicles may be registered, as previously discussed, the payment of premiums does not constitute damages in this instance.
Plaintiff also seeks rescission of the policy based upon unilateral mistake in its belief that the policy complied with registration requirements coupled with fraud (based on the issuance of insurance cards by Crum). However, plaintiff was aware of its inability to register vehicles as of February 2003 at the latest yet did not take prompt action to rescind the policy. Rather, plaintiff continued its relationship with Crum following the commencement of the actions and sought confirmation that plaintiff would be covered for losses over the $250,000.00 retention amount. In other words, plaintiff sought to avail itself of the benefits of the policy for over a year following the cancellation of the vehicle registrations. Even after the underlying lawsuits were resolved, plaintiff did not commence an action for rescission for several years thereafter. It is further noted that the claim against Crum was not even asserted until three years after the commencement of the action against Barth and USI. This unexplained delay in seeking rescission constitutes a waiver of the claim ( see R & A Food Services, Inc. v. Halmar Equities, Inc., 278 A.D.2d 398  ).
For the reasons given respecting plaintiff's indemnification claim against Barth and USI, the court finds no merit in the indemnification claim asserted against Crum.
Accordingly, the motions of Barth/USI and Crum for summary judgment are granted and the complaint is dismissed in its entirety. Plaintiff's motion for summary judgment is denied.
The foregoing constitutes the decision and order of the court.