CONTINENTAL CASUALTY CO v. AON RISK SERVICES COMPANIES INC (2008)

Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered March 13, 2007, dismissing the complaint and bringing up for review an order, same court and Justice, entered January 24, 2007, which granted defendants' motion for summary judgment and denied plaintiffs' motion for summary judgment on their indemnification claim, unanimously affirmed, with costs.

 Plaintiffs' claims against insurance broker defendant AON Risk Services, Inc. of New York (AON N.Y.) for failing to deliver to their nonparty insured the terms and conditions of its insurance policy were properly dismissed for failure to state a cause of action.   While an insurance broker sometimes acts as agent for the insurer so that its acts are treated as the acts of the insurer (Guardian Life Ins. Co. of Am. v. Chemical Bank, 94 N.Y.2d 418, 423, 705 N.Y.S.2d 553, 727 N.E.2d 111 [2000] ), there is no evidence of action on plaintiffs' part from which it can be inferred that they entrusted AON N.Y. with delivering the policy documents or authorized it to represent them for any other purpose (see Travelers Ins. Co. v. Raulli & Sons, Inc., 21 A.D.3d 1299, 1300, 802 N.Y.S.2d 823 [2005];  Indian Country v. Pennsylvania Lumbermens Mut. Ins. Co., 284 A.D.2d 712, 714-715, 726 N.Y.S.2d 495 [2001] ).   Plaintiffs' claim for common-law indemnification fails for the same reason.   Nor is there any evidence that AON N.Y. exercised discretionary functions on plaintiffs' behalf or possessed superior expertise on which plaintiffs relied so as to give rise to a fiduciary duty (see Philan Ins. v. Hall & Co., 215 A.D.2d 112, 112-113, 626 N.Y.S.2d 85 [1995] ).   Plaintiffs' claim for professional malpractice is also time-barred (see Mauro v. Niemann Agency, 303 A.D.2d 468, 469, 756 N.Y.S.2d 611 [2003] ).