MCWG Wins Summary Judgment Based On Material Misrepresentation Regarding Occupancy.
Asantewa James v. Tower Ins. Co. of New York, Kings Co. Index No. 15502/10 (Sup. Ct., Kings, 2011)
Mound Cotton obtained summary judgment on behalf of Tower Insurance Company of New York in an action for first-party property coverage following a September 2008 fire at the Insured's Premises. Tower denied coverage based on the Plaintiff's material misrepresentation in the application for insurance, which incorrectly asserted the Premises was owner occupied. Plaintiff subsequently commenced an action against Tower and the broker asserting causes of action for breach of contract, fraud and negligence. According to Plaintiff, she never signed the application that was submitted to Tower by her broker.
After conducting written discovery, Tower moved for summary judgment based on the material misrepresentation in the application regarding occupancy. Plaintiff cross-motion and opposed that motion, on the ground that she could not be held accountable for the misrepresentation in the application because it was made by her broker, without her consent. She also argued, unsuccessfully, that the misrepresentation was not material; the broker was Tower's agent; and that Tower waived the misrepresentation defense because before the loss it had reinstated coverage after inspecting the Premises and discovering that it was not owner occupied.
After oral argument, the Court awarded Tower summary judgment because it found that the broker was Plaintiff's agent. Thus, Plaintiff was bound by the broker's material misrepresentation. Tower was represented by Kevin F. Buckley and Daniel M. O'Connell.