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Home / Case Digests / Appellate Division, Fourth Dept. / Fourth Department — Insurance Contract — Breach of Contract: 5 Awnings Plus, Inc. v. Moses Insurance Group, Inc.

Fourth Department — Insurance Contract — Breach of Contract: 5 Awnings Plus, Inc. v. Moses Insurance Group, Inc.

Appellate Division, Fourth Department

Insurance Contract — Breach of Contract

Negligence — Special Duty

5 Awnings Plus, Inc. v. Moses Insurance Group, Inc.
CA 12-02300
Appealed from Supreme Court, Niagara County

Background: The defendant procured workers’ compensation insurance for the plaintiff’s successor in interest. The plaintiff alleged that the defendant advised the plaintiff to execute an assignment of interest agreement transferring the policy to the plaintiff. Unbeknownst to the plaintiff, the successor owned premiums on the policy. The plaintiff commenced the action alleging that the defendant should have advised the plaintiff of the implications of the assignment. The defendant appealed from the denial of its motion to dismiss.

Ruling: The Appellate Division reversed, finding the negligence action untimely. The plaintiff’s financial responsibility for the prior debt occurred on the date it executed the assignment. This was the date the plaintiff should have been able to calculate the damages and seek judicial redress. However, the plaintiff did not commence its action until more than three years from that date. Further, the breach of contract action was dismissed as the plaintiff did not have a valid breach of fiduciary duty claim. The Appellate Division specifically noted that the plaintiff requested the “best policy value” which is insufficient to trigger the special duty requiring the defendant to advise the plaintiff concerning its insurance coverage.

Darren P. Renner of Keidel, Weldon & Cunningham for the defendant-appellant; James C. Roscetti of Roscetti & DeCastro for the plaintiff-respondent