Patrick Fischer (Associate-Madison, NJ) secured a dismissal with prejudice in the U.S. District Court, District of New Jersey, on behalf of Wilson Elser’s client, an insurance broker. In this broker malpractice case, the court found that the entire controversy doctrine barred the plaintiff from bringing this claim because he had an opportunity to object to the settlement agreement in the underlying state action, but chose not to do so. The court further found that although the facts in the instant complaint and the underlying state action are not identical, they are related because our client’s defense would focus on the fact that he did not commit malpractice and/or the settlement figure was reasonable based on the strength of the proofs against it. In a noteworthy development, the court issued its Order and Statement of Reasons with no prior notice and without oral argument, based solely on the strength of Patrick’s written arguments.

San Francisco partners Peter Catalanotti and Madonna Herman joined forces with associates Quincy Pham, Inna Nytochka, and Mara Sackman to obtain dismissal of claims of professional negligence and misrepresentation against our broker client by a winery based in Napa, California. Our client had assisted the winery in procuring and renewing a series of insurance policies for several years. Following the Napa Valley wildfires in October 2017, testing of the winery’s grapes showed evidence of a defect called “smoke taint.” The winery waited until early Summer 2019 to reach out to the client regarding the possibility of filing a claim with the carrier, and until March 2020 to file a claim through their new broker. In granting the team’s motion, the Napa County Superior Court found that the client did not breach the heightened duty of care owed by an expert in insuring the winery industry, and the client did not make any of the false representations alleged. This decision was particularly crucial because the client’s insurance agent passed away early in our representation. The most recent demand before the Order was issued was $1.75 million.

Meg Twomey (Of Counsel-Atlanta, GA) secured summary judgment for an insurance broker client in a negligent misrepresentation and fraud claim in the State Court of Jackson County. The plaintiffs, a general contractor and its insurance carrier, sought subrogation for workers’ compensation paid to the employee of a subcontractor. Our client, the subcontractor’s broker, merely sent the certificate of insurance to the general contractor. The plaintiffs attempted to argue that the broker induced the general contractor into hiring the subcontractor, despite the broker’s knowledge that employees hired out of state would not be covered under the workers’ compensation policy. The court held that the plaintiffs failed to show a false representation or negligent misrepresentation by omission, and failed to show justifiable reliance on the COI. The plaintiffs elected not to appeal. 

Christina Huston (Of Counsel-Houston) and Carol Kennedy (Of Counsel-Houston) obtained summary judgment in the Harris County Court at Law No. 1 for Wilson Elser’s client, an insurance agent and broker.  The plaintiff brought a suit against its insurer and the local broker/agent, alleging a failure to procure sufficient insurance coverage before the historic winter storm, Uri. The trial court granted Christina and Carol’s traditional motion for summary judgment and their no evidence motion for summary judgment, concurring that the plaintiff failed to produce evidence to support one or more elements of the claim and could not recover on the claim as a matter of law, dismissing the case.

Joseph Francoeur (Partner-New York, NY) and Eve Mouzouris (Associate-New York, NY) obtained dismissal in New York County Supreme Court on behalf of an insurance broker in a million-dollar third-party action alleging negligence, breach of contract and special relationship. Our client broker procured coverage for an owner of three attached buildings located in Queens County. When a fire caused significant damage, the owner made a claim to the insurance carrier that was denied in part and coverage of one of the attached buildings was limited to 2,146 square feet. The owner brought a third-party action claiming that its damaged property was significantly larger and therefore the coverage procured by the broker was inadequate. We filed a pre-answer motion to dismiss based on documentary evidence stating that not only was the property description provided to the carrier correct because it was obtained directly from the owner but that all public records reflected 2,146 square feet. Any additional square footage, Joe and Eve argued, was due to an unlawful addition constructed by the owner of which the city had no knowledge, essentially amounting to insurance fraud. The court agreed, striking down the owner’s reliance on an e-mail in which it is stated that the broker procured “adequate” coverage and declaring such language does not support a breach of contract or negligence claim. Finally, the court highlighted that in its opposition, the owner did not deny that it originally represented that the subject premises was 2,146 square feet or claim that the number it submitted was in error. 

Joseph Francoeur (Partner-New York) and Melissa Young (Associate-New York) obtained dismissal of all claims asserted against their client, an insurance broker, upon submission of a pre-answer cross-motion to dismiss based on documentary evidence. The plaintiff, a home improvement business specializing in the installation of residential exterior products, alleged that our client failed to obtain adequate insurance to cover a claim arising from the plaintiff’s snow and ice removal business. In the underlying slip-and-fall accident case, the plaintiff was named a third-party defendant for allegedly failing to remove snow and ice from a walkway, and submitted its claim to its carrier who denied coverage because the policy did not cover plaintiff’s snow and ice removal business. Melissa and Joe filed an opposition to plaintiff’s Order to Show Cause and a pre-answer cross-motion to dismiss the Complaint against our client as the insurance certificate makes no mention of a snow/ice removal business and conspicuously states that the certificate was issued “as a matter of information only and confers no rights upon the certificate holder…” The court entered a Decision and Order dismissing the plaintiff’s Order to Show Cause and granting the above-referenced cross-motion, dismissing all claims against our client. 

Joseph Francoeur (Partner-New York, NY) and Melissa Young (Associate-New York, NY) achieved dismissal of all claims asserted against their client, an insurance broker agency, upon submission of a pre-answer cross-motion to dismiss based on documentary evidence. In the underlying slip-and-fall case, the plaintiff was named as a third-party defendant for allegedly failing to remove snow and ice from a walkway, and submitted the claim to its carrier, which denied coverage because the policy did not cover the plaintiff’s snow and ice removal business. To establish a claim for negligence or breach of contract against an insurance broker, a plaintiff must show that a specific request was made to the broker for the coverage that was not provided in the policy. Plaintiff’s further argued that it reasonably believed its snow and ice removal operation was covered because our client had issued a Certificate of Insurance. New York courts have held that it is unreasonable to rely on an insurance certificate where such certificate contains disclaimer language that the certificate was “issued as a matter of information only and confers no rights upon the certificate holder.” The court agreed with Melissa and Joe’s arguments that the plaintiff never requested coverage for the snow and ice removal business, as evidenced by the application; that the plaintiff failed to allege a special relationship with the broker; and that the conspicuous disclaimer at the top of the insurance certificate negated any reasonable reliance by the plaintiff on the contents of such certificate with respect to coverage.