691 N.Y.S.2d 411
1999 N.Y. Slip Op. 05355
( Cite as: 261 A.D.2d 300, 691 N.Y.S.2d 411)

Supreme Court, Appellate division, First

May 25, 1999

Insured sued the brokerage agent who had helped him obtain his homeowners' coverage, alleging that he was significantly underinsured for a fire loss he has sustained. The Supreme Court, New York County, Sheila Abdus-Salaam, J., denied the agent's motion for summary judgment dismissing the complaint, and the agent appealed. The Supreme Court, Appellate Division, held that: (1) the brokerage agent had undertaken a duty to estimate the replacement value of the home, and (2) the alleged disparity between the amount of the loss and the amount of coverage raised a fact issue as to whether the agent had fulfilled her duty.

Affirmed.

[1] Judgment k181(23)
228k181(23)

Significant disparity between the alleged amount of an insured's fire loss and the amount of his homeowners' coverage raised a triable issue as to whether the brokerage agent who had helped the insured obtain the coverage had fulfilled the duty she had undertaken to estimate the replacement value of the home, precluding summary judgment dismissing the insured's complaint against the agent.

[2] Insurance k1670
217k1670

Once a brokerage agent, in response to an insured's request for "proper and adequate" homeowners' coverage, undertook to estimate the replacement value of the property to be insured, she owed the insured a duty to perform that estimation with a reasonable degree of care and accuracy.

**411 Joshua L. Mallin, for Plaintiff-Respondent.

Robert M. Sullivan, for Defendant-Appellant.

ELLERI, P.J., ROSENBERGER, WILLIAMS, ANDRIAS and SAXE, JJ.

MEMORANDUM DECISION.

*300 Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about September 21, 1998, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

[1][2] It is undisputed that when it came time for plaintiff to renew his home insurance policy in 1994 he contacted defendant brokerage agency and spoke to the agent through whom he had periodically purchased home insurance during most of the preceding decade. Plaintiff requested "proper and adequate" coverage for his home, which had recently been improved, and, in response, the agent, as she had in prior years, utilized a Home Aestimator" computer program to check that the level of coverage to be afforded was indeed "proper and adequate". Thereafter, a home insurance policy containing a coverage cap *301 of $176,000 was issued to plaintiff discovered that, in fact, he had been seriously underinsured; his damages allegedly **412 exceeded his coverage by some $96,374. Even if plaintiff's request o the agent to obtain "proper and adequate" coverage for his recently improved home did not itself trigger a duty on the agent's part to assure that plaintiff's home was completely insured against property loss, once the agent, in response to plaintiff's request for "proper and adequate" coverage, undertook to estimate the replacement value of the property to be insured, she owed plaintiff a duty to perform that estimation with a reasonable degree of care and accuracy (see Gediman v. Anheuser Busch, Inc., 2d Cir., 299 F.2d 537, 546, citing Glanzer v. Shepard, 23 N.Y. 236, 239, 135 N.E. 275). In view of the significant disparity between plaintiffs alleged loss and his coverage, a triable issue is raised as to whether the duty assumed in this case by plaintiff's broker was discharged by the agent's use of the above-mentioned "Home Aestimator" program.