The Second Department determined there were triable issues of fact concerning whether defendant Ovation breached its common-law or contractual duty to procure insurance for plaintiff Concrete. Allegedly, Ovation had represented to Concrete that the insurance had been procured but did not verify that the coverage, to be provided by the insurer, was in place:
In general, “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” … . A claim of liability for a violation of this duty may sound in either contract or tort … . To state a claim based upon violation of the insurance broker’s common-law duty, the client must demonstrate that the broker failed to discharge its duty either by breaching the agreement with the client by failing to obtain the requested coverage or by failing to exercise due care in obtaining insurance on the client’s behalf … .
Here, the Ovation defendants failed to establish … that Ovation did not breach its common-law or contractual duty to Concrete. Even assuming [there was a request] that Concrete be added to the existing policy … the deposition testimony submitted by the Ovation defendants … demonstrated that Ovation agreed to obtain insurance for Concrete and then represented that it had done so without verifying this fact. … [T]he Ovation defendants failed to establish, … the absence of a triable issue of fact as to whether Ovation undertook a duty to Concrete which it then failed to discharge. Alpha/Omega Concrete Corp. v Ovation Risk Planners, Inc., 2021 NY Slip Op 05113, Second Dept 9-29-21