                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 18, 2016                   521434
________________________________

KEN FINCH JR.,
                    Appellant,
     v                                      MEMORANDUM AND ORDER

STEVE CARDELL AGENCY,
                    Respondent,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   January 13, 2016

Before:   Peters, P.J., Garry, Egan Jr., Rose and Clark, JJ.

                             __________


     Frederick J. Meagher Jr., Binghamton, for appellant.

      Coughlin & Gerhart, LLP, Binghamton (Keith A. O'Hara of
counsel), for respondent.

                             __________


Garry, J.

      Appeal from an order of the Supreme Court (Guy, J.),
entered October 13, 2014 in Broome County, which, among other
things, granted a cross motion by defendant Steve Cardell Agency
for summary judgment dismissing the complaint against it.

      Plaintiff is a self-employed logger who is also engaged in
the business of putting on rodeos. In connection with this
business, plaintiff owns bulls and other animals, as well as
trucks and trailers. In approximately 2006, plaintiff began
obtaining homeowners' insurance and liability and automobile
coverage for his business operations from defendant Steve Cardell
Agency (hereinafter defendant), a New York insurance agency of
which Steven I. Cardell (hereinafter Cardell) is president.
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Plaintiff obtained liability insurance for rodeos by contacting
defendant before each show. Defendant would then procure
coverage for the event and provide plaintiff with an insurance
certificate. In August 2012, plaintiff contacted defendant to
obtain coverage for an upcoming rodeo in Pennsylvania. The
transaction was handled by an office assistant. The carrier that
had previously provided plaintiff's rodeo insurance declined to
cover the event, apparently due to its location in Pennsylvania,
and the assistant instead found what she believed to be
equivalent coverage issued by a different carrier, Atlantic
Casualty Insurance Company (hereinafter ACIC).

      At the conclusion of the Pennsylvania rodeo, four bulls
escaped from a group that was being moved from a holding pen
through a system of gates immediately prior to loading into
plaintiff's trailer. Several bystanders were injured before the
animals were recaptured, and lawsuits were filed against
plaintiff as a result. When plaintiff advised defendant of the
incident, Cardell reviewed the ACIC policy and discovered that it
contained an exclusion for injuries or damage caused by animals.
Thereafter, ACIC declined coverage, relying on the animal
exclusion and also on a policy exclusion for losses arising out
of the use of an "auto" (hereinafter the auto exclusion), which
the policy defined to include loading and unloading operations.
When plaintiff sought coverage under the automobile insurance
policy that defendant had furnished through a different company,
that carrier also denied coverage on the ground that the trailer
into which the bulls were being loaded was not listed in the
policy's schedule of covered vehicles. Although plaintiff's
trucks were listed and covered, on this occasion he had used a
borrowed truck owned by defendants Mark Woodruff and Robin
Woodruff to tow his trailer to the rodeo.

      Plaintiff commenced this insurance malpractice action
alleging that defendant was negligent in procuring a rodeo
insurance policy with an animal exclusion. Following joinder of
issue, plaintiff moved for summary judgment; after an agreed-upon
adjournment for discovery, defendant cross-moved for summary
judgment dismissing the complaint. During the pendency of the
motions, plaintiff amended his complaint to add a cause of action
against the Woodruffs, and a new cause of action that amplified
                              -3-                521434

his insurance malpractice claim against defendant. Plaintiff
then argued that the amended complaint rendered defendant's cross
motion premature and unripe for determination. Supreme Court
rejected this assertion, denied plaintiff's motion and granted
defendant's cross motion for summary judgment dismissing the
complaint against defendant, on the ground that the animal
exclusion was not the proximate cause of plaintiff's loss.
Plaintiff appeals.

      An insurance agent has a common-law duty to provide
requested coverage within a reasonable time and may be held
liable for negligence or breach of contract when a client
establishes that a specific request was made for coverage that
was not provided in the policy (see American Bldg. Supply Corp. v
Petrocelli Group, Inc., 19 NY3d 730, 735 [2012]). A breach of
this duty will give rise to liability if it is shown to be the
proximate cause of a client's loss (see Milgrim v Royal &
SunAlliance Ins. Co., 75 AD3d 587, 589 [2010]; Cosmos, Queens
Ltd. v Matthias Saechang Im Agency, 74 AD3d 682, 683-684 [2010],
lv denied 15 NY3d 711 [2010]). Here, Supreme Court determined
that defendant's potential negligence was not the proximate cause
of plaintiff's loss, as plaintiff's claim would have been denied,
in any event, based upon the auto exclusion. However, this
failed to address the allegations set forth within the amended
complaint. In this pleading, plaintiff alleged that defendant
negligently failed to advise him of the "gap in coverage" created
by the auto exclusion, and that this failure resulted in his lack
of coverage.

      Although an insurance agent's common-law duty to his or her
clients does not include a continuing duty to advise the clients
on appropriate coverage or to recommend additional coverage that
the clients did not request (see Catalanotto v Commercial Mut.
Ins. Co., 285 AD2d 788, 790 [2001], lv denied 97 NY2d 604
[2001]), an agent may be liable for failing to provide
appropriate advice in circumstances where there is a special
relationship. As pertinent here, such a relationship may arise
when "there is a course of dealing over an extended period of
time which would have put objectively reasonable insurance agents
on notice that their advice was being sought and specially relied
on" (Murphy v Kuhn, 90 NY2d 266, 272 [1997]; accord Voss v
                              -4-                521434

Netherlands Ins. Co., 22 NY3d 728, 735 [2014]). The question
whether a special relationship exists between an insurance agent
and a client giving rise to a duty to guide and advise the client
is a factual determination that "is governed by the particular
relationship between the parties and is best determined on a
case-by-case basis" (Murphy v Kuhn, 90 NY2d at 272). Here,
plaintiff testified that he had purchased his business and
personal insurance from defendant for at least six years, that he
knew little about insurance and that he relied upon defendant to
obtain the appropriate coverage for his rodeo operations. He
stated that he had never seen any of the rodeo insurance policies
that defendant procured on his behalf, that insurance
certificates were the only documents ever provided to him, and
that "with [Cardell] being my agent for years, I took that as he
was representing me and making sure that I was covered." As for
the failure to include the trailer in the schedule of covered
vehicles in plaintiff's automobile insurance policy – which
defendant had also procured – plaintiff stated that he understood
that his trailers were covered by his truck insurance and that he
was never advised that his trailers should be separately listed
as covered vehicles until after the Pennsylvania incident.

      Cardell testified that defendant had been providing
plaintiff with homeowners' insurance, private automobile
insurance and commercial truck insurance since 2006 and had been
procuring general liability insurance coverage for plaintiff's
rodeo operations for several years before the Pennsylvania
incident. He testified that after the previous carrier declined
coverage, the general marketing agency that defendant worked with
offered the ACIC policy as a substitute. Cardell acknowledged
that the presence of the animal exclusion in the ACIC policy was
an error, stating that the assistant "overlooked" the exclusion,
that Cardell did not discover it until after the incident, and
that an employee of the marketing agency was later fired for
issuing the policy with the animal exclusion. Nothing in
Cardell's testimony contradicted plaintiff's allegations that he
relied upon defendant to procure adequate coverage, or that
defendant had not advised him of any need for additional
protection because of the auto exclusion.
                              -5-                521434

      As to application of the auto exclusion, defendant
correctly asserts that clauses in automobile liability insurance
policies defining the use of an automobile to include loading and
unloading are broadly construed to include "the complete
operation" (Wagman v American Fid. & Cas. Co., 304 NY 490, 494
[1952] [internal quotation marks omitted]; see Hertz Corp. v
Bellin, 22 NY2d 736, 736 [1968]; Travelers Ins. Co. v Saunders &
Sons, 18 AD2d 126, 127-128 [1963], affd 13 NY2d 1019 [1963]).
Critically, however, the language at issue here is not a coverage
provision in an automobile liability policy, but an exclusion
from coverage in a general liability insurance policy. It is
well established that such exclusions are subject to a strict and
narrow construction and can be "enforced only when the insurer
establishes that the pertinent language is 'subject to no other
reasonable interpretation'" (Essex Ins. Co. v Grande Stone
Quarry, LLC, 82 AD3d 1326, 1327 [2011], quoting Seaboard Sur. Co.
v Gillette Co., 64 NY2d 304, 311 [1984]; see Fulmont Mut. Ins.
Co. v New York Cent. Mut. Fire Ins. Co., 4 AD3d 724, 726 [2004]).
The record here contains no specific information as to the
particular circumstances in which plaintiff's bulls caused
injuries after their escape, or how closely related those
circumstances were to the operation of transferring the bulls
from the holding pen to the trailer. Accordingly, the record
fails to establish as a matter of law that ACIC would necessarily
be able to demonstrate that the injuries fall within the scope of
the auto exclusion.

      The question whether negligence on the part of an insurance
agent or broker proximately caused a client's losses "should
generally be resolved by the factfinder" (Voss v Netherlands Ins.
Co., 22 NY3d at 737). In our view, the evidence raises triable
issues of fact as to whether plaintiff and defendant had a
special relationship and, if so, whether defendant proximately
caused plaintiff's loss by negligently failing to advise and
guide him in obtaining adequate insurance coverage for all
aspects of his rodeo operations, including his trailers (see Voss
v Netherlands Ins. Co., 22 NY3d at 736-737; South Bay
Cardiovascular Assoc., P.C. v SCS Agency, Inc., 105 AD3d 939, 942
[2013]; Axis Constr. Corp. v O'Brien Agency, Inc., 87 AD3d 1092,
1093-1094 [2011]). Therefore, defendant's cross motion for
summary judgment dismissing the complaint should not have been
                              -6-                  521434

granted.

     Peters, P.J., Egan Jr., Rose and Clark, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as granted the cross motion
by defendant Steve Cardell Agency for summary judgment dismissing
the complaint against it; said motion denied; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
