Lutz Feed Co., Inc. v. Audet & Co., Inc.
| Decision Date | 20 November 1972 |
| Citation | 72 Misc.2d 28,337 N.Y.S.2d 852 |
| Parties | LUTZ FEED COMPANY, INC., Plaintiff, v. AUDET & COMPANY, INC., et al., Defendants. AUDET & COMPANY, INC., et al., Third-Party Plaintiffs, v. Howard J. BENSON et al., Third-Party Defendants. |
| Court | New York Supreme Court |
Harlem & Terry, Oneonta, for plaintiff.
Night, Keller & O'Connor, Binghamton, for defendants and third-party plaintiffs (Thomas F. O'Connor, Binghamton, of counsel).
McNamee, Lochner, Titus & Williams, Albany, for third-party defendants (Victor A. Lord, Jr., Albany, of counsel).
There are two motions before the court, one by a third-party defendant, Eastern Federation of Feed Merchants, Inc., hereinafter the Federation, to dismiss the third-party complaint for failure to state a cause of action, and the other by a third-party defendant, Howard J. Benson, to dismiss the third-party complaint on the ground that the court has no jurisdiction over his person and that the complaint fails to state a cause of action as to him.
The court will first treat the motion by the Federation. The complaint in the main action on Lutz Feed Company, Inc., against Audet & Company, Inc. and Audet's agents, sets forth two causes of action, one in negligence, the other for breach of contract. In substance, it alleges that the defendants, general insurance agents, contracted with the plaintiff to secure and continue in effect a contract of insurance insuring plaintiff against certain risks including Workmen's Compensation claims; that defendants breached their contract with plaintiff and were negligent in that the insurance policy which had been secured expired on June 30, 1969 and defendants failed to apprise plaintiff of the expiration and, as a result thereof, plaintiff was subsequently obligated to pay a claim of an injured employee to its damage in the amount of $10,000.
The amended third-party complaint alleges that the third-party defendants in the latter part of 1967 or 1968 organized a group program for Workmen's Compensation insurance for members of the Federation; that the third-party defendants, the Federation and its executive director, Benson, requested Audet & Company to secure Workmen's Compensation insurance coverage for the Federation and certain members including the plaintiff, and that the third- party defendants submitted applications made by plaintiff and other members of the Federation for said insurance to the International Insurance Company which issued Workmen's Compensation insurance to plaintiff and certain members of the Federation for the policy period July 1, 1968 to June 30, 1969. It is further alleged that the third-party defendants acted for plaintiff in any dealings plaintiff had with the third-party plaintiffs; that the third-party defendants knew in June, 1969 that International Insurance Company would not renew its policies, and that the third-party defendants negligently failed to advise plaintiff that its insurance policy would not be renewed; and that if the third-party plaintiffs were negligent or breached their contract with plaintiff, then the third-party defendants were negligent and such negligence was a contributing proximate cause of plaintiff's damage. Thus, it is prayed that if plaintiff recovers judgment against the defendants, or any one of them, then the defendants should have judgment against third-party defendants for all or any part of such judgment.
As the court construes the third-party complaint, the third-party defendants are alleged to be joint tortfeasors with the third-party plaintiffs; it is alleged that the third-party defendants were agents of the plaintiff and owed it a certain duty which they negligently failed to perform. The factual issue of whether any of the parties involved owed a duty to the plaintiff is, of course, not before the court. But as a matter of pleading, both the complaint and the amended third-party complaint clearly allege that a duty was owed to the plaintiff and that the respective defendants and third-party defendants failed to perform that duty. Two independent agents acting for a principal in the same matter may, of course, be held to be concurrently negligent. In such case, the principal may recover against both agents (see Brown v. Poritzky, 30 N.Y.2d 289, 332 N.Y.S.2d 872, 283 N.E.2d 751). Since the respective third-party plaintiffs and third-party defendants are deemed to be joint tortfeasors, it follows under Dole v. Dow Chem....
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