Marshall v Tower Ins. Co. of N.Y.
Annotate this CaseDecided on June 14, 2006
Supreme Court, Kings County
Althia Marshall, Fritz Valcourt and Joseph Gerard-Jean, Plaintiffs,
against
Tower Insurance Company of New York and Admiral Insurance Brokerage Corp., Defendants.
16164/2005
Attorney for the Plaintiffs
Matarazzo Blumberg & Associates, LLP
15 Maiden Lane
New York, NY 10038
Attorney for the Defendant Admiral Insurance Brokerage Corp.
Fiedelman Garfinkel & Lesman
110 William Street
New York, NY 10038-3901
Attorney for the Defendant Tower Insurance Company of New York
Law Office of Max W. Gershweir
120 Broadway, 17th Floor
New York, NY 10271
Martin Schneier, J.
In January 2005, Plaintiff Joseph Gerard Jean ("Jean") purchased the premises located at 421 Marlborough Road, Brooklyn, New York (the "premises"). Jean did not intend to live at the premises himself; it was his intention that plaintiffs Althia Marshall ("Marshall") and Fritz Valcourt ("Valcourt"), relatives of his, would live at the premises. Regardless of this fact, he submitted a mortgage application which stated that his occupancy intention was "primary residence."
Marshall avers that she contacted defendant Admiral Insurance Brokerage Corporation [*2]("Admiral"), to obtain insurance prior to the closing. Marshall avers that she informed Admiral that herself and Valcourt would be living at the premises and that Jean would not be living there notwithstanding the fact that Jean was the mortgagor.
Admiral obtained a copy of Jean's mortgage application and used the information in it, including the representation that Jean would reside at the premises, to complete an insurance application. The application was never signed or reviewd by any of the plaintiffs. Admiral forwarded the application to defendant Tower Insurance Company ("Tower"), which issued a policy of insurance to Jean.
On March 13, 2005, the premises were damaged by fire. Jean truthfully informed Tower's investigator that he did not live at the premises. Tower subsequently denied Jean's claim under the policy. Plaintiffs then commenced this action, alleging breach of contract by Tower and negligence and "breach of representation and agreement" by Admiral.
Tower and Admiral move for summary judgment.
Tower's first ground for summary judgment is that the policy requires that the insured live at the premises. The relevant section of the policy states: 8."Residence Premises" means:
a.the one family dwelling, other structures, and grounds;
or
b.That part of any other building; where you reside and which is shown as the residence premises in the Declarations.
An insurance policy must be construed in favor of insured, and ambiguities, if any, are to be resolved in favor of the insured and against insurer. (U.S. Fidelity & Guar. Co. v. Annunziata, 67 NY2d 229). Tower construes this clause as meaning "the one family dwelling...where you reside..." or "[t]hat part of any other building where you reside..." The Court finds that this clause may also be reasonably construed as meaning "the one family dwelling..." or "[t]hat part of any other building where you reside..." This latter construction does not require that the insured live at the premises. Because the ambiguity must be resolved in favor of the insured, Tower's motion to dismiss on this ground is denied.
Tower also moves for summary judgment on the grounds that Jean's application falsely represented that Jean would occupy the premises as a residence. The policy provides that Tower will not provide coverage if the insured has "[i]ntentionally concealed or misrepresented any material fact or circumstance." A misrepresentation by the insured's broker, even if inadvertent, will void the policy if the misrepresentation is material (Abulaynain v. New York Merchant Bankers Mut. Fire Ins. Co., 128 AD2d 575; Insurance Law § 3105(b)).
The application in this case consists of a form with different choices, on which an X is placed to the left of the correct answer. Under "usage type," "primary" is selected. However, under "occupied by," the choices are "owner" or "tenant". Neither choice is selected. Accordingly, the Court finds that the application does not misrepresent who the premises would be occupied by. Furthermore, the usage of the premises was primary, albeit by the tenant, not the owner. The application also requires the insured to answer whether the insured has "any other residence owned, occupied or rented?" To this question the application falsely represents that [*3]Jean did not. Tower has not, however, demonstrated that this misrepresentation was material. Thus, the motion to dismiss on the grounds of material misrepresentations is denied.
Tower's motion to dismiss the claims by Marshall and Valcourt is granted on the grounds that they are not the named insureds on the policy.
Insurance agents have common-law duty to obtain the requested coverage for their clients within a reasonable time or inform the client of inability to do so. (Murphy v. Kuhn, 90 NY2d 266, 270). Admiral moves for summary judgment against Jean on the grounds that the misrepresentations in the application occurred because Jean had included the same misrepresentations in his mortgage application. Admiral moves for summary judgment against Marshall and Valcourt on the grounds that neither one was a costumer of Admirals. The Court finds that Marshall's affidavit is sufficient to create issues of fact as to both these grounds. Accordingly, Admiral's motion for summary judgment is denied.
Tower's motion for summary judgment is, therefore, granted to the extent that the claims by Marshall and Valcourt are dismissed. The motion is otherwise denied. Admiral's motion for summary judgment is denied in its entirety.
This shall constitute the decision and order of the Court.
Dated: June 14, 2006_________________
J.S.C.
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