The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
On December 30, 2005, Plaintiff, an insurance trust administrator, filed this breach-of-contract action in the Eastern District of Pennsylvania, alleging that Defendant, a self-insured trust, terminated it without cause.*fn1 On June 21, 2006, the District Court for the Eastern District of Pennsylvania transferred the action to this Court.*fn2 On July 17, 2006, Defendant submitted its answer with counterclaims, alleging that Plaintiff breached the Administrative Services Agreement (the "Contract") prior to Defendant's alleged breach.*fn3
On November 13, 1995, Plaintiff and Defendant created Defendant Trust ("Trust Agreement"), under the New York Worker's Compensation laws, to provide funding for the worker's compensation claims of the employees of participating car dealerships. On that same day, Defendant and Plaintiff, in addition to creating the Trust, entered into the Contract, which designated Plaintiff as the trust administrator for a five-year period. The Contract renewed automatically for additional five-year periods, at Plaintiff's discretion, unless Defendant earlier terminated the Contract. See Declaration of R. Scott Atwater dated October 14, 2008 ("Atwater Decl."), at ¶ 17 and Exhibit "G," at § 4.1, annexed thereto.
The Contract provided the Board of Trustees with the power to delegate all, or a portion, of its operational responsibilities to an administrator, which Defendant did when it appointed Plaintiff as trust administrator. The authority and duties that Defendant delegated to Plaintiff included, among others, (1) the duty to file any information necessary to maintain the group's self-insurance privileges in a timely manner; (2) the absolute authority to approve new members who met the established underwriting criteria and the duty to recommend to Defendant prospective members who did not meet the criteria; (3) the duty to assess whether an injured person was covered under the Trust and the amount of payment owed; (4) the duty to make payments to injured persons from a budget that Defendant approved; and (5) the duty to complete and file all claim forms required by law that were necessary for the proper administration of the claims incurred. See id. at Exhibit "G," at §§ 3.1, 3.4, 3.6, 3.8, 3.9.
On May 6, 2005, a Workers' Compensation Board Level I Review of the Trust for the 2004 fiscal year determined that the Trust had a $13 million deficit; and, by the end of 2005, the deficit exceeded $22 million. See id. at ¶ 64. In response to the growing trust deficit, in November of 2005, Defendant terminated Plaintiff as trust administrator, which triggered this litigation. See id. at ¶¶ 67, 71.*fn5
Currently before the Court is Defendant's motion for partial summary judgment on its first counterclaim for breach of contract and to amend its third-party complaint to include AVI Risk Services, LLC as a Counterclaim-Defendant. Plaintiff asserts a statute-of-limitations affirmative defense, alleging that Defendant's counterclaim for alleged breaches of contract prior to March 31, 2003 are barred by the three-year malpractice statute of limitations found at section 214(6) of the New York Civil Practice Law and Rules.
A. Statute of Limitations
As stated, in response to Defendant's motion for summary judgment on its first counterclaim, Plaintiff asserts that, because it provides "professional" services, as the New York Court of Appeals has defined that term, the three-year statute of limitations for malpractice actions applies and not the six-year statute controlling contract actions. See Plaintiff's Memorandum of Law at 19-20.Therefore, Plaintiff contends that, to the extent that Defendant's breach-of-contract counterclaim is based on breaches that occurred prior to March 31, 2003, it is barred by the three-year statute of limitations.
It is well settled that, in New York, a "malpractice" action may, in theory, be grounded not only in negligence but in contract as well. See Chase Scientific Research, Inc. v. NIA Group, Inc., 96 N.Y.2d 20, 25 (2001) (citation omitted). In New York, breach-of-contract actions are subject to a six-year statute of limitations while malpractice actions against non-medical "professionals" are subject to a three-year limitations period, whether the claim is based on tort or contract. See id. (citing N.Y. C.P.L.R. § 214(6)). Accordingly, when a plaintiff brings a cause of action that sounds both in contract and negligence, the appropriate statute of limitations depends on whether the actor is a "professional," who was acting in that capacity. See id. at 28.
In Chase Scientific, the plaintiff brought suit against the defendants -- insurance brokers -- asserting one cause of action for negligence and one for breach of contract based on the defendants' failure to secure adequate coverage to indemnify the plaintiff against losses to its inventory. See id. at 24. The defendants moved to dismiss the entire action as time-barred under CPLR 214(6), contending that the claim was one for malpractice and that the three-year statute of limitation period had already run. See id. Finding for the defendants, the New York Court of Appeals held that insurance agents and brokers were not "professionals;" and, therefore, they were not within the ambit of CPLR 214(6). See id at 30. In so holding, the court noted that the statute's legislative history referred specifically to "'an architect, engineer, lawyer or accountant'" in speaking of professional malpractice and that the qualities shared by those in these professions provided guidance in defining the term "professional." Id. at 29 (quotation omitted). Such qualities include formal education and training, regulations setting forth qualifications to practice, licensure, a code of conduct beyond that which is commonly accepted in the marketplace and a disciplinary code for violations of the code of conduct. See id. (citations omitted). Additionally, the court found that "a professional relationship is one of trust and confidence, carrying with it a duty to counsel and advise clients[.]" Id. (citations omitted).
Applying those criteria to insurance agents and brokers, the court found that, although agents and brokers must be licensed, they are not required to engage in extensive formalized education and they are not bound by a standard of conduct for which discipline might be imposed, unlike the other learned professions. See id. at 30. Finally, the court concluded that, although an insurance agent has a common law duty to obtain the requested coverage, the agent does not generally have a continuing duty to advise or guide a client based on a special relationship of trust and confidence. See id.; see also N.Y. Ins. Law §§ 2103, 2104; N.Y. Comp. Codes R. & Regs. tit. 12, § 302-1.3.
Plaintiff asserts that Chase Scientific is distinguishable because Workers' Compensation Hearing Representatives are held to a code of conduct, which insurance agents and brokers are not. Specifically, Plaintiff argues that they must follow the code of conduct and take an oath and that the code of conduct contains formalized procedures for the revocation of a representative's license. These conditions, however, appear to be no more rigorous than those imposed on insurance agents and brokers. See N.Y. Comp. Codes R. & Regs. tit. 11, §§ 31.1-- 31.2.
Based on the information provided, it is clear that the three-year malpractice statute of limitations does not apply to Workers' Compensation Hearing Representatives. These hearing representatives require the same level of education as insurance agents and brokers, and they have similar disciplinary codes and proceedings and; accordingly, Chase Scientific, 96 N.Y.2d at 25, is controlling. See id. at 30 (holding that, "[t]o be sure, insurance agents and brokers are held to high standards of education and qualification (see, e.g., Insurance Law §§ 2103, 2104), but these criteria are simply not as rigorous as those embraced by what we conclude are the professionals within CPLR 214(6)"). Therefore, the Court concludes that the six-year statute of limitations governing contract actions applies; and, thus, Defendant's breach-of-contract counterclaim is not time-barred.
B. Summary Judgment Standard*fn6
Summary judgment is appropriate if the pleadings, affidavits, and disclosures that form the record establish that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A court should deny summary judgment "if the evidence is such that a reasonable jury could return a verdict" in favor of the non-moving party. NetJets Aviation, Inc. v. LHC Commc'ns, LLC, 537 F.3d 168, 178 (2d Cir. 2008) (citation omitted). In deciding a motion for summary judgment, the court must construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in the non-moving party's favor. See In re "Agent Orange" Prod. Liab. Litig. 517 F.3d 76, 87 (2d Cir. 2008) (quotation omitted).
C. Defendant's Breach-of-Contract Counterclaim
As noted, Defendant has moved for summary judgment with respect to its first counterclaim for breach of contract. Specifically, Defendant alleges that Plaintiff materially breached the Contract by (1) failing to file required forms with the New York Workers' Compensation Board's Second Injury Fund, which cost the Trust millions of dollars; (2) taking commissions for the placement of reinsurance coverage greatly in excess of the contractual limitation of industry standard commissions; (3) impermissibly charging the Trust for payments to ...