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Hefty v. Paul Seymour Insurance Agency

Supreme Court of New York, Third Department

July 26, 2018

KENNETH HEFTY et al., Appellants,
v.
PAUL SEYMOUR INSURANCE AGENCY et al., Respondents.

          Calendar Date: May 30, 2018

          Sugarman Law Firm, LLP, Syracuse (Jeffrey M. Narus of counsel), for appellants.

          Barclay Damon LLP, Rochester (Gabriel Bouvet-Boisclair of counsel), for respondents.

          Before: Egan Jr., J.P., Lynch, Mulvey, Aarons and Pritzker, JJ.

          MEMORANDUM AND ORDER

          Mulvey, J.

         Appeal from an order of the Supreme Court (Faughnan, J.), entered June 8, 2017 in Madison County, which granted defendants' motion for summary judgment dismissing the complaint.

         In 2010, plaintiffs purchased the subject property for $33, 000 with the intention of renovating the home and retiring there. At that time, plaintiffs purchased a homeowner's insurance policy through defendants with a replacement cost limit of $92, 000. Following extensive renovations and investment of over $200, 000 in the subject property, it was destroyed by a fire in 2013. Plaintiffs thereafter commenced this action alleging that defendants were negligent in failing to secure higher coverage limits for the subject property. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint. Supreme Court granted the motion, and plaintiffs appeal.

         "As a general principle, insurance brokers have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage" (Voss v Netherlands Ins. Co., 22 N.Y.3d 728, 734 [2014] [internal quotation marks and citation omitted]; see Cromer v Rosenzweig Ins. Agency Inc., 156 A.D.3d 1192, 1193 [2017]; Finch v Steve Cardell Agency, 136 A.D.3d 1198, 1200 [2016]). Thus, "[t]o set forth a case for negligence or breach of contract against an insurance broker, a plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy" (American Bldg. Supply Corp. v Petrocelli Group, Inc., 19 N.Y.3d 730, 735 [2012]; see Cromer v Rosenzweig Ins. Agency Inc., 156 A.D.3d at 1193; Finch v Steve Cardell Agency, 136 A.D.3d at 1200).

         In support of their motion, defendants submitted, among other things, the deposition testimony of plaintiffs. Plaintiffs each testified that, after renovating the subject property, they had conversations with defendants during which they informed them of the improvements to the property and requested that someone be sent there to reassess its value. Plaintiffs acknowledged, however, that at no point did they ever make a specific request for an increase in coverage. In opposition, plaintiffs failed to present any evidence to rebut this showing. At best, the evidence established that plaintiffs expressed a general interest in increasing coverage on the subject property, which is insufficient as a matter of law to satisfy "the requirement of a specific request for a certain type of coverage" (American Bldg. Supply Corp. v Petrocelli Group, Inc., 19 N.Y.3d at 735; see Cromer v Rosenzweig Ins. Agency Inc., 156 A.D.3d at 1194; Moutafis Motors, Ltd. v MRW Group, Inc., 144 A.D.3d 1000, 1001 [2016]; M & E Mfg. Co. v Frank H. Reis, Inc., 258 A.D.2d 9, 12 [1999]).

         Plaintiffs nonetheless contend that a special relationship existed between themselves and defendants, giving rise to an additional duty of advisement. Even in the absence of a specific request, an insurance broker may be liable for failing to advise or direct the client to obtain additional coverage where a special relationship has developed between the broker and the client (see Voss v Netherlands Ins. Co., 22 N.Y.3d at 735; Murphy v Kuhn, 90 N.Y.2d 266, 272-273 [1997]). Stressing that "special relationships in the insurance brokerage context are the exception, not the norm" (Voss v Netherlands Ins. Co., 22 N.Y.3d at 736), the Court of Appeals has identified three "exceptional situations" that may give rise to a special relationship: "(1) the agent receives compensation for consultation apart from payment of the premiums; (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on" (id. at 735 [internal quotation marks and citation omitted]; see Murphy v Kuhn, 90 N.Y.2d at 272; Cromer v Rosenzweig Ins. Agency Inc., 156 A.D.3d at 1195). On this record, we conclude that plaintiffs failed to raise a triable issue of fact as to the existence of such a special relationship.

         The parties agree that defendants did not receive compensation from plaintiffs apart from the payment of premiums. Further, although plaintiffs claim that they repeatedly requested a reassessment of the subject property, it is undisputed that defendants never undertook to perform one (see Kaufman v BWD Group LLC, 127 A.D.3d 433, 433 [2015]; compare Stevens v Hickey-Finn & Co., 261 A.D.2d 300, 301 [1999] [finding an issue of fact where the broker, in response to the plaintiff's request, undertook to estimate the replacement value of the property but did so negligently]). Moreover, plaintiffs' own submissions confirm that they did not rely on the expertise of defendants in assessing their insurance needs. Quite to the contrary, the evidence shows that plaintiffs were sophisticated consumers of insurance products who directly managed their insurance coverages (see Petri Baking Prods., Inc. v Hatch Leonard Naples, Inc., 151 A.D.3d 1902, 1904 [2017]; Trans High Corp. v Pollack Assoc., LLC, 74 A.D.3d 489, 489-490 [2010]; M & E Mfg. Co. v Frank H. Reis, Inc., 258 A.D.2d at 12-13]). The testimony of plaintiffs - who owned as many as 10 properties - revealed that they would secure appropriate coverages for their various properties as they deemed fit, at times rejecting defendants' advice and intentionally procuring insurance in an amount less than that recommended by defendants. With regard to the subject property, plaintiffs initially insured it for only 80% of the recommended coverage based upon their belief that defendants' recommendation was too high. They also disputed whether flood insurance was necessary for the subject property, eventually receiving a refund from defendants. Indeed, plaintiff Kenneth Hefty testified to the quantity of insurance coverage, per square foot, he thought was reasonable on the subject property considering the type of construction and renovations that plaintiffs had completed.

         Although defendants handled nearly all of plaintiffs' insurance needs for over a decade, this alone is insufficient to raise an issue of fact as to a special relationship, especially given plaintiffs' history of rejecting defendants' professional recommendations and managing the specifics of their own insurance policies (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 N.Y.3d 152, 158 [2006]; Murphy v Kuhn, 90 N.Y.2d at 271-272; Kaufman v BWD Group LLC, 127 A.D.3d at 434). Thus, even viewing the evidence in the light most favorable to plaintiffs (see Newman v RCPI Landmark Props., LLC, 28 N.Y.3d 1032, 1034 [2016]; Carroll v Rondout Yacht Basin, Inc., ___ A.D.3d ___, ___, 2018 NY Slip Op 04051, *2 [2018]), we find that the record in the instant case evinces nothing more than the standard consumer-insurance broker relationship (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 N.Y.3d at 158; Murphy v Kuhn, 90 N.Y.2d at 271; Moutafis Motors, Ltd. v MRW Group, Inc., 144 A.D.3d at 1002; Kaufman v BWD Group LLC, 127 A.D.3d at 434; Trans High Corp. v Pollack Assoc., LLC, 74 A.D.3d at 489-490; Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, 297 A.D.2d 430, 431-432 [2002]; compare Voss v Netherlands Ins. Co., 22 N.Y.3d at 735-736). Accordingly, Supreme Court properly granted defendants' motion for summary judgment and dismissed the complaint.

          Egan Jr., J.P., Lynch, Aarons and ...


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