Price v. Lawrence-Van Voast, Inc.
| Decision Date | 30 June 1977 |
| Docket Number | LAWRENCE-VAN |
| Citation | 58 A.D.2d 727,396 N.Y.S.2d 296 |
| Parties | Edwin PRICE, Respondent, v.VOAST, INC., Respondent, and Empire Mutual Insurance Co., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Alfred C. Saunders, Albany, for appellant.
Pemberton, Buchyn & O'Hare, Schenectady (James L. Pemberton, Schenectady, of counsel), for defendant-respondent Lawrence-Van Voast, Inc.
Frankel & Frankel, Schenectady, for plaintiff-respondent Price. (No appearance on appeal.)
Before GREENBLOTT, J. P., and SWEENEY, KANE, MAHONEY and MAIN, JJ.
MEMORANDUM DECISION.Appeal from an order of the Supreme Court at Special Term, entered January 3, 1977 in Schenectady County, which granted plaintiff's motion for summary judgment against defendant Empire Mutual Insurance Co. and dismissed the complaint as against defendant Lawrence-Van Voast, Inc.
On February 27, 1976, the plaintiff contacted the defendant, Lawrence-Van Voast, Inc., an insurance agency, and requested a change of coverage on an existing automobile insurance policy which had been issued by the defendant, Empire Mutual Insurance Co. On the same day, the defendant Lawrence-Van Voast, Inc. forwarded to Empire Mutual Insurance Co. an Action Request and its remittance draft for $93 as a premium deposit. Due to a clerical error, comprehensive rather than comprehensive and collision coverage was requested. The remittance draft in the amount of $93 was accepted by the defendant Empire Mutual Insurance Co. and was the proper premium for comprehensive and collision coverage.
On March 1, 1976 plaintiff was involved in a one-car collision. The defendant Empire Mutual Insurance Co. subsequently denied coverage.
Special Term found that a principal-agent relationship existed between the defendant Empire Mutual Insurance Co. and the defendant Lawrence-Van Voast, Inc. and that the acts of Lawrence-Van Voast, Inc. were binding upon the principal. We concur. Whether an insurance broker represents the insurer or the insured is not controlled by a statutory definition, but rather depends upon the circumstances of the particular case (29 N.Y.Jur., Insurance, § 425; see Allen v. German Amer. Ins. Co., 123 N.Y. 6, 25 N.E. 309). The facts herein compel the conclusion that the defendant, Lawrence-Van Voast, Inc., was acting as the agent of the defendant Empire Mutual Insurance Co. in procuring the additional coverage requested by the plaintiff.
The insurer, Empire Mutual Insurance Co., had in the past...
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