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Dimarino v. Wishkin

Decided: August 8, 1984.

GINA A. DIMARINO, PLAINTIFF,
v.
RUBIN WISHKIN, D/B/A RUBINS VALET SERVICE, DEFENDANT AND THIRD PARTY PLAINTIFF-RESPONDENT, V. SIDNEY KATZ, THIRD PARTY DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Atlantic County.

Fritz, Furman and Deighan. The opinion of the court was delivered by Fritz, P.J.A.D.

Fritz

This is an appeal from an interlocutory order certified by the trial judge as a final judgment -- improvidently, we believe -- pursuant to R. 4:42-2. It is brought by an insurance broker and agent*fn1 who, on the trial of a severed third party action in a negligence case, was adjudicated to be responsible to the third party plaintiff, "under either a contract or tort theory," for damages "measured by providing . . . a protection he would have had if the insurance had been placed as agreed." The broker appeals. We affirm.

Defendant and third party plaintiff Wishkin operated a laundromat. Plaintiff was injured on the premises. Katz, the third party defendant and appellant, operated an insurance agency and had first written insurance for Wishkin around 1970. In November 1978 the property and affairs of Wishkin's insurance company were taken over by the Superintendent of Insurance of the State of New York and all policies, including that of Wishkin, were cancelled, effective December 13, 1978. Katz received a notice of this on November 27, 1978.

The trial judge expressly found as a fact, as evidenced by his letter opinion supplementing his oral opinion at the conclusion of the trial, that prior to the accident alleged to have

occurred on January 19, 1979, "through his wife, Wishkin discussed with Katz the cancellation of the insurance, and requested Katz to effect a replacement policy. Katz undertook to do so." (Emphasis supplied.) Wishkin was uninsured on the date of the accident. The findings of the trial judge might reasonably have been reached on sufficient credible evidence in the whole record and we will not disturb them. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474 (1974).

Katz argues here that he had no absolute duty to provide coverage, that his undertaking to attempt to secure insurance did not impose upon him "additional responsibilities." We think this view overlooks the realities of the relationship between Katz and Wishkin. Implicit, if not express, in the findings and conclusions of the trial judge is the fact that Wishkin reasonably thought himself to be assured of coverage by virtue of the Katz promise. As the trial judge said:

In the instance [ sic ] matter, it is clear that Katz undertook to procure the insurance, and in fact, informed Wishkin that the liability insurance was difficult to obtain because it was being sought by itself and not as a part of a broader coverage package. It is clear that Katz at no time informed Wishkin that he would not be able to place the subject coverage, and that, from their prior dealings and relationships Wishkin relied upon Katz not only to effect the coverage, but to advance the premium payment and then submit a bill for reimbursement to Wishkin.

In these circumstances we consider the failure of the broker to produce the coverage or else warn the client at once that coverage could not be obtained constitutes a failure to exercise the requisite skill or diligence required of a broker to the same extent as would have obtained had there been a failure to issue a policy which the broker promised to procure. This is certainly within the spirit, if not the letter, of Bates v. Gambino, 72 N.J. 219, 225 (1977). It is notable that the Supreme Court in Bates effectively characterized the standards set forth there as minimums, eschewing any limitation of a broker's liability to the three circumstances set forth there. We consider that, in view of the relationship, the assurances

given Wishkin by Katz were, in legal effect, no less than those of Marano v. Sabbio, 26 N.J. Super. 201 (App.Div.1953).

In the second and third points of his brief, Katz argues that "plaintiff failed to present the necessary proofs relating to the standard of care to be exercised" by Katz and that the trial court "did not make the findings of fact relative to comparative negligence required by N.J.S. 2A:15-5.2." In the first place both these points ignore the fact that while the trial judge was not as ...


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