Gutierrez v. Gov't Emps. Ins. Co.
| Decision Date | 24 February 2016 |
| Parties | Tommy GUTIERREZ, respondent, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, appellant. |
| Court | New York Supreme Court — Appellate Division |
Picciano & Scahill, P.C., Westbury, N.Y. (Albert Graham of counsel), for appellant.
Daniel E. Rausher, Brooklyn, N.Y., for respondent.
JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.
In an action to recover damages for breach of the terms of an insurance policy and breach of the implied covenant of good faith and fair dealing, the defendant appeals from an order of the Supreme Court, Kings County (Toussaint, J.), dated February 11, 2015, which denied its motion pursuant to 3211(a)(7) to dismiss the plaintiff's second and third causes of action.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's motion which was to dismiss the third cause of action, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
This case arises from a claim for supplementary uninsured/underinsured motorist (hereinafter SUM) benefits relating to a motor vehicle accident. The complaint alleges that on February 21, 2010, the plaintiff was operating a vehicle that was insured by the defendant Government Employees Insurance Company (hereinafter GEICO), with the permission of the vehicle's owner. The vehicle collided with a vehicle insured by Allstate Insurance Company (hereinafter Allstate), allegedly causing the plaintiff serious injuries as defined in Insurance Law § 5102(d), and property damage. The plaintiff alleged that he would incur future medical expenses "in any effort to be cured" and would be "unable to pursue [his] usual duties with the same degree of efficiency as prior to this accident."
Allstate tendered its policy limits of $50,000 in settlement of the plaintiff's claim, which the plaintiff contends was insufficient to make him whole. Therefore, the plaintiff made a claim under the SUM endorsement to the GEICO policy. The plaintiff alleges that GEICO unreasonably refused to pay the claim.
In July 2014, the plaintiff commenced this action, asserting three causes of action. The first cause of action, sounding in breach of contract, demanded payment of the SUM benefits. The second cause of action sought damages in tort for GEICO's alleged breach of "its duty to act in good faith" by unreasonably withholding payment of SUM benefits. The third cause of action alleged that GEICO "breached its contract and/or policy, and absolute duties and obligations to the Plaintiff and its insureds."
GEICO moved pursuant to CPLR 3211(a)(7) to dismiss the second and third causes of action in the complaint for failure to state a cause of action. It argued, inter alia, that if the second and third causes of action sounded in breach of the implied covenant of good faith and fair dealing, that covenant was implicit in every contract, and therefore those causes of action were duplicative of the cause of action sounding in breach of contract. In the order appealed from, the Supreme Court denied GEICO's motion on the ground, inter alia, that the second and third causes of action were not duplicative of the cause of action sounding in breach of contract.
On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the pleading is afforded a liberal construction, and the court must give the plaintiff the benefit of every possible favorable inference, accept the facts alleged in the complaint as true, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Caravello v. One Mgt. Group, LLC, 131 A.D.3d 1191, 17 N.Y.S.3d 453 ). The second cause of action alleges a failure to act in good faith. Implicit in every contract is an implied covenant of good faith and fair dealing (see Elmhurst Dairy, Inc. v. Bartlett Dairy, Inc., 97 A.D.3d 781, 784, 949 N.Y.S.2d 115 ). The implied...
To continue reading
Request your trial
-
25 Bay Terrace Assocs., L.P. v. Pub. Serv. Mut. Ins. Co.
...18 N.Y.S.3d 98 )."Implicit in every contract is an implied covenant of good faith and fair dealing" ( Gutierrez v. Government Empls. Ins. Co., 136 A.D.3d 975, 976, 25 N.Y.S.3d 625 ; see Elmhurst Dairy, Inc. v. Bartlett Dairy, Inc., 97 A.D.3d 781, 784, 949 N.Y.S.2d 115 ). "The implied covena......
-
P.S. Fin., LLC v. Eureka Woodworks, Inc.
...quotation marks omitted]; see Celauro v. 4C Foods Corp., 187 A.D.3d 836, 838, 132 N.Y.S.3d 159 ; Gutierrez v. Government Empls. Ins. Co., 136 A.D.3d 975, 976, 25 N.Y.S.3d 625 ). " ‘The implied covenant of good faith and fair dealing is a pledge that neither party to the contract shall do an......
-
E. Ramapo Cent. Sch. Dist. v. N.Y. Sch. Ins. Reciprocal
...Terrace Assoc., L.P. v. Public Serv. Mut. Ins. Co., 194 A.D.3d at 672, 148 N.Y.S.3d 484, quoting Gutierrez v. Government Empls. Ins. Co., 136 A.D.3d 975, 976, 25 N.Y.S.3d 625 ; see Moran v. Erk, 11 N.Y.3d 452, 456, 872 N.Y.S.2d 696, 901 N.E.2d 187 ). "No obligation may be implied that would......
-
Brown v. Erie Insurance Company
...see Paramax Corp. v. VoIP Supply, LLC , 175 A.D.3d 939, 940, 107 N.Y.S.3d 231 [4th Dept. 2019] ; Gutierrez v. Government Empls. Ins. Co. , 136 A.D.3d 975, 976, 25 N.Y.S.3d 625 [2d Dept. 2016] ). "While the duties of good faith and fair dealing do not imply obligations ‘inconsistent with oth......