United States District Court, W.D. New York
For Plaintiff: Ted E. Trief, Esq., Matthew J. Wojtkowiak, Esq., Trief & Olk, New York, NY.
For Defendants: Stephen C. Cunningham, Esq., Keidel Weldon & Cunningham, LLP, White Plains, NY; Joseph W. Dunbar, Esq., Damon Morey LLP, Buffalo, NY.
DECISION & ORDER
CHARLES J. SIRAGUSA, United States District Judge.
Plaintiff filed a diversity complaint in this Court on May 20, 2011, alleging breach of contract and negligence when her bed and breakfast (" B& B" ) burned down and the insurance was insufficient to cover replacement costs. This case is before the Court on Defendants' motion for summary judgment. For the reasons stated
below, Defendants' application is granted in part, and denied in part.
This lawsuit originally included Vermont Mutual Insurance Company as a defendant. However, the parties signed a stipulation of dismissal which was docketed on November 29, 2011, ECF No. 24, removing Vermont from the lawsuit. Further, in her memorandum of law in opposition to this pending summary judgment motion, Plaintiff has conceded to dismissal of her claims against Hal Burrall and her claims for attorney's fees. Pl.'s Mem. of Law at 2. The Court will, therefore, dismiss Hal Burrall as a party, and not consider the attorney fees claim. Thus, the remaining defendant is C.S. Burrall & Son, Inc. (" C.S. Burrall" ).
The facts are taken from the parties' Rule 56 statements and are in agreement, except as indicated, below. C.S. Burrall is an insurance company in Geneva, New York. Hal Burrall (" Burrall" ) was an insurance salesman for the company. Plaintiff Frances Ambroselli is now a resident of Georgia, but previously owned a Victorian era house in Cohocton, New York, which she operated as the Villa Serendipity Bed and Breakfast from 1999 until it burned down on October 11, 2010.
In July 2008, Burrall met with Plaintiff at her home and proposed an insurance contract. Burrall used a cost estimator program and measured the property to assist him in calculating the coverage for the property. The cost estimate was $433,991, which Burrall rounded up to $435,000. Burrall reviewed Plaintiff's old policy, which was with Finger Lakes Fire & Casualty Company and had a $250,000 actual cash value, due to increase to $260,000 for the period from August 31, 2008, to August 31, 2009. On August 22, 2008, Plaintiff agreed to purchase insurance from Burrall with a coverage limit of $435,000 for the dwelling, and a personal liability coverage limit of one million dollars. The policy was through the Vermont Mutual Insurance Company. In connection with the purchase, Plaintiff signed a " Policy Limits Acceptance" form which stated in pertinent part that, " I accept the policy limits applied for in my application and I understand that higher limits are available for an additional premium. I decline higher policy limits." Def.s' Ex. G, Aug. 22, 2008, ECF No. 35-7. After Burrall procured the policy for Plaintiff, Vermont Mutual dispatched their own field inspector to review Plaintiff's property. Ambroselli Dep. 70:6-25, 71:1-10, Jan. 27, 2012, ECF No. 35-7 (attached as Ex. B to Def's Rule 56 Appendix).
On October 2, 2008, Shannon Burnett of Vermont Mutual sent a copy of the policy to Plaintiff with a cover letter suggesting that she read the policy in its entirety and contact Ms. Burnett if Plaintiff had any questions. Plaintiff renewed the Vermont Mutual policy twice, once in 2009 and once in 2010. Each year, the policy automatically increased coverage by six percent to guard against inflation, and by the 2010-2011 policy year, the coverage limit for the dwelling was $489,500.
The October 11, 2010 fire, referenced above, caused total loss to the dwelling, and Vermont Mutual paid $517,525 to Plaintiff under the policy. Plaintiff still owns the property in Cohocton on which the dwelling once stood. In her complaint, she alleges ...