Page One Auto Sales, Inc. v. Brown & Brown of New York, Inc.

Peradotto, J. (dissenting).

I respectfully dissent because, in my view, Supreme Court properly granted defendant’s cross motion for summary judgment dismissing the complaint. Plaintiff, an automobile dealership, commenced this action seeking damages for the alleged breach by defendant, plaintiffs insurance broker, of its duty to procure an insurance policy containing “false pretense coverage,” which is intended to cover losses in the event that plaintiff purchased automobiles with defective titles. Plaintiff subsequently moved for summary judgment on the complaint, and defendant cross-moved for summary judgment dismissing the complaint.

“It is now well settled ‘that insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or [to] inform the client of the inability to do so’ ” (Arthur Glick Truck Sales v Spadaccia-Ryan-Haas, Inc., 290 AD2d 780, 781 [2002], quoting Murphy v Kuhn, 90 NY2d 266, 270 [1997]). It is equally well settled, however, that “an insured is conclusively presumed to know the contents of an insurance policy concededly received, even though the insured did not read or review it” (Laconte v Bashwinger Ins. Agency, 305 AD2d 845, 846 [2003]; see Chase’s Cigar Store v Stam Agency, 281 AD2d 911, 912 [2001]; Nicholas J. Masterpol, Inc. v Travelers Ins. Cos., 273 AD2d 817 [2000]). Here, plaintiff submitted evidence in support of its motion establishing that it requested false pretense coverage for the 1999-2000 policy period and that its insurance broker advised plaintiff that he would procure such coverage. Plaintiffs submissions demonstrate that, in November or December 1999, the broker informed plaintiffs office manager that coverage “had been procured” and that “the endorsements were coming.” The office manager thereafter continued to contact the broker periodically to inquire about the endorsements, and she was repeatedly advised that the endorsements were on the way. The office manager acknowledged, however, that defendant had not provided documentary proof that it had obtained false pretense coverage by the time she left plaintiffs employ in April 2000, and plaintiffs general manager conceded that plaintiff never received the requested endorsements.

Notably, all of the losses at issue appear to have been sustained during the 2000-2001 policy period. Although the record indicates that plaintiff may not have received the new policy for that period before the losses occurred, the prior policy specifically excluded false pretense coverage, and the only policy *1485change plaintiff discussed with defendant when the policy came up for renewal in June 2000 was a possible increase in limits for the coverage it already possessed. At his deposition, plaintiffs general manager suggested that plaintiff may not have made a specific request for false pretense coverage at the time of renewal because plaintiff “assumed” it had such coverage. In my view, however, any such assumption was unreasonable as a matter of law in light of the plain language of the policy in plaintiffs possession at that time, i.e., the 1999-2000 policy, and the fact that plaintiff had never received documentation confirming the false pretense coverage, despite numerous requests for it over a period of at least 10 months (see Laconte, 305 AD2d at 846; see also Chase’s Cigar Store, 281 AD2d at 912-913; Nicholas J. Masterpol, Inc., 273 AD2d at 818). Moreover, it is undisputed that plaintiff never paid for such coverage. I therefore conclude that, notwithstanding the broker’s assurances in November or December 1999 that plaintiff had false pretense coverage, plaintiff knew or should have known that it did not have such coverage at the time plaintiffs office manager left in April 2000, if not sooner. Thus, in the absence of any evidence sufficient to overcome plaintiffs presumptive knowledge of the contents of the policy, it is my view that the court properly granted defendant’s cross motion for summary judgment dismissing the complaint. I would therefore affirm the order. Present—Smith, J.E, Peradotto, Garni, Lindley and Sconiers, JJ.