Notice of Motion Affirmation in Opposition Reply Affirmation in Further Support of Defendant s Motion for Summary Judgment

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1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK PRESENT: HON. VICTOR M. ORT Justice GEORGE POLL and WILLIS SEAFOOD RESTAURANT CORP. Plaintiffs -against- EDWARD VALLA, PROFESSIONAL INSURANCE CONSULTANTS, INC. and HAROLD O KEEFE Defendants TRIAL/IAS PART 37 NASSAU COUNTY INDEX NO MOTION DATE: 03/27/O 1 MOTION SEQUENCE: 2 The following papers read on this motion: Notice of Motion Affirmation in Opposition Reply Affirmation in Further Support of Defendant s Motion for Summary Judgment l This is an action for personal injury and property damage arising out of a motor vehicle accident. Plaintiffs are also asserting negligence and fraud claims against their insurance broker for failing to obtain collision coverage on plaintiffs vehicle. Defendant Professional Insurance Consultants, Inc. is moving for summary judgment dismissing the complaint. Alternatively, defendant moves for summary judgment as to those claims asserted by plaintiff George Poll personally on the ground that he lacks standing to bring a claim in his individual capacity. Finally, defendant seeks renewal of defendant s motion to dismiss plaintiffs claim for attorney s fees. 1

2 Plaintiff George Poll was involved in an automobile accident with defendant Edward Valla on August 12, At the time of the accident, Mr. Poll was driving a 1994 Mercedes Benz which was leased by plaintiff Willis Seafood Restaurant Corp. The corporation is owned by Mr. Poll. Willis Seafood had a commercial auto insurance policy issued by Commercial Union Insurance Company and written by defendant Professional Insurance Consultants ( PIC ) in September, The policy had $300,000 liability coverage but no collision coverage for plaintiffs vehicle. Plaintiffs allege that Mr. Poll had approached PIC in July or August of 1996 for the purpose of obtaining insurance coverage for the 1994 Mercedes. Although Mr. Poll did not expressly request collision coverage, he provided PIC with a copy of the prior policy on the car which had collision coverage in the amount of $77,700. The parties are in dispute as to whether PIC urged Mr. Poll to obtain collision coverage and also whether Mr. Poll received the policy declarations sheet showing that the policy did not include such coverage. In moving for summary judgment dismissing the complaint, PIC argues that it was under no duty to obtain collision coverage for the Mercedes vehicle. Although an insurance broker has a common law duty to obtain requested coverage for its client within a reasonable time or inform the client of the inability to do so, it has no continuing duty to advise, guide or direct a client to obtain additional coverage. Murnhv v. Kuhn, 90 N.Y.2d 266,270 (1997). Rather, it is the customer s personal responsibility to initiate, seek, and obtain appropriate coverage because the insured is in a better position to know his personal assets and abilities to protect himself. 90 N.Y.2d at In Murphy, plaintiff requested the insurance agent who placed his commercial insurance coverage to obtain automobile insurance coverage for a personal vehicle. When plaintiff incurred liability in excess of the policy limits, the court held that he 2

3 could not recover the excess from the insurance agent because plaintiff had never requested coverage in excess of that provided by the commercial policy. In determining whether an insured has requested a particular coverage, the court may look to the terms of the insured s existing insurance policy. See Chaim v. Benedict, 216 A.D.2d 347 (2d Dep t 1995); Et-wig v. Edward F. Cook Agency, 173 A.D.2d 439 (2d Dep t 1991). In both Chaim and Erwig, the court found that the insured had not requested underinsurance coverage because such coverage was not already provided in the insured s existing insurance policy. In the case at bar, where plaintiff provided a copy of his prior policy to the insurance broker, a factual question is presented as to whether Mr. Poll impliedly requested coverage comparable to that provided in the policy, including collision coverage on the Mercedes vehicle. An implied request for collision coverage would give rise to a duty to obtain such coverage within a reasonable time or to inform the client of the inability to do so. Since there is a factual issue as to whether plaintiff impliedly requested collision coverage for the Mercedes vehicle, defendant s motion for summary judgment dismissing plaintiffs negligence claim is denied. Plaintiffs claim for fraud is predicated on an intentional failure to disclose the fact that the insurance policy did not contain collision coverage. In order to maintain an action for fraud based upon nondisclosure, plaintiff must establish a confidential or fiduciary relationship between the parties. Glazer v. LoPreste, 717 N.Y.S.2d 256 (2d Dep t 2000). An insurance broker is ordinarily the agent of the insured, although it may be held to be the agent of the insurer if there are facts from which a general authority to represent the insurer may be inferred. U.S. Deliverv Svstems. Inc. v. Nat 1 Union Fire Ins. Co., 265 A.D.2d 402 (2d Dep t 1999). Since the principal and agent relationship between insured and insurance broker is of a 3

4 confidential or quasi-fiduciary nature, the insurance broker is under a duty to disclose to the insured the terms of an insurance policy which it obtains on the insured s behalf. Thus, PIC was under a duty to disclose to Mr. Poll the fact that the policy did not contain collision coverage even though it was not under a duty to advise the client to obtain such coverage in the first instance. While the question of whether defendant fully disclosed the terms of the policy must await the trial of the action, defendant s motion for summary judgment with respect to the fraud claim must also be denied. By order dated July 30, 1998, Hon. Howard E. Levitt denied defendant s motion pursuant to CPLR 321 l(a)(7) to dismiss plaintiffs claim for attorney s fees for failure to state a cause of action. Justice Levitt held that although the general rule is that attorney recoverable by the prevailing party in litigation, plaintiff may recover attorney s fees are not s fees where as a consequence of defendant s tortious acts, plaintiff is required to defend or bring an action against a third party. Defendant seeks renewal of the motion to dismiss plaintiffs claim for attorney s fees on the ground that there has been an intervening change in the law that would change the prior determination. CPLR 2221(e)(2). Defendant relies on the decision of the Appellate Division First Department in Chase Manhattan Bank v. Each Individual Underwriter, 258 A.D.2d 1 (lst Dep t 1999). In Chase Manhattan the court held that in an action against an insurance broker for negligent failure to provide coverage the insured may not recover attorney s fees expended in a prior action against the insurer seeking a determination that coverage was in effect. The court reasoned that allowing attorney s fees in such a situation would run counter to the general rule against awarding attorney s fees to the successful party in litigation. Since the insured could not recover his 4

5 attorney s fees in an action against the insurer seeking a declaration of coverage, the insured should not be able to recover the very same attorney broker. The present action is to recover attorney s fees in an action against the insurance s fees expended not in an action seeking a declaration of coverage but rather in an action seeking to recover compensation from a third party. Thus, Chase Manhattan is readily distinguishable. It is also noteworthy that the First Department in Chase Manhattan reaffirmed the exception on which Justice Levitt relied, namely that if through the wrongful act of his present adversary a person is involved with a third person in bringing an action to defend his interests, he is entitled to recover the reasonable value of attorney s fees incurred. Thus, the court concludes that there has not been an intervening change in the law that would impact upon Justice Levitt s prior determination. The court notes however that Justice Levitt held merely that plaintiffs had stated a claim for attorney s fees. Whether plaintiffs will be able to prove entitlement to this relief will of course be determined at trial. Accordingly, defendant s motion for renewal of his prior motion to dismiss plaintiffs claim for attorney s fees is granted, but upon renewal defendant s motion to dismiss plaintiffs claim for attorney s fees is denied. Finally, defendant moves to dismiss all claims asserted by Mr. Poll in his individual capacity on the ground that Mr. Poll lacks standing because the insurance policy was issued in the name of Willis Seafood Restaurant Corporation. In opposition to defendant s motion, Mr. Poll asserts that having paid the cost of the repair of the vehicle as well as the attorney s fees expended in this action, he is in effect the subrogee of the corporation. The doctrine of subrogation encompasses the payment by one party of the debt of another under compulsion or for the protection of some interest. Cohn v. Rothman-Goodman Management Corn A.D.2d 5

6 579 (2d Dep t 1989). As defendant correctly notes, a party will not be subrogated if the payment was voluntary. Id. at 580. Mr. Poll has not shown how his payment for the repair of the vehicle which was leased by Willis Seafood or for the corporation s legal fees was made under any type of compulsion. Nevertheless, the court is not required to dismiss the claims which Mr. Poll is asserting in his individual capacity. It is axiomatic that an action must be maintained by the real party in interest. The reason. for this requirement is to protect the defendant from being sued twice on the same claim. Additionally, the requirement guarantees the defendant the right to interpose all defenses he has against the claim. See McKinney spractice Commentary proceeding CPLR Where a corporation has a claim for breach of contract, a major stockholder of the corporation may be the real party in interest, entitled to bring an action for breach of contract, notwithstanding the existence of a cause of action on behalf of the corporation. Zeidler v. Astrosvstems. Inc., 39 A.D.2d 740 (2d Dep t 1972). Since Willis Seafood Restaurant and Mr. Poll have each joined as parties plaintiff, there is no danger that defendant will be sued twice on any of the claims, and defendant will have the opportunity to assert all of its defenses in this action. Accordingly, Mr. Poll is a proper party, and defendant s motion to dismiss all claims asserted by Mr. Poll in his individual capacity is denied. SO ORDERED Dated: April ENTE R 6 APR

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