Under New York law, "[a]n insurance agent or broker can be held liable in negligence if he or she fails to exercise due care in an insurance brokerage transaction. Thus, a plaintiff may seek to hold a defendant broker liable under a theory of either negligence or breach of contract ...." Download Bruckmann, Rosser, Sherrill & Co. v. Marsh USA, Inc. (N.Y. App. Div. 1st Dep't Opinion Filed September 1, 2009). Accordingly, a Trial Court's Order of Dismissal was modified by the Appellate Division to reinstate a negligence cause of action with a contract cause of action.
However, in that same case, causes of action related to allegations implicating an alleged Breach of Fiduciary Duty "were properly dismissed." Download Bruckmann, Rosser, Sherrill & Co. v. Marsh USA, Inc. (N.Y. App. Div. 1st Dep't Opinion Filed September 1, 2009). As a matter of New York law, said the Appellate Division, an Insurance Agent has "'no continuing duty to advise, guide or direct a client to obtain additional coverage' ....Thus, absent a special relationship, a claim for breach of fiduciary duty does not lie ...." Id.
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