Dismissal of Insured's Suit Against Auto Insurer's EUO Counsel Affirmed

AUTO – EXAMINATION UNDER OATH – LIABILITY OF INSURER'S EUO COUNSEL – SUBSTANTIAL JUSTICE
Henig v. Bruno, Gerbino & Soriano, LLP
(App. Term, 2nd Dept., 9th & 10th Jud. Dists., decided 12/23/2010)

Plaintiff made a claim for the alleged theft of a 1990 Lincoln Town Car to his auto insurer, Encompass Insurance Company, which retained the defendant law firm to conduct an examination under oath of the plaintiff.  After the EUO was held, Encompass denied plaintiff's claim based upon his failure to demonstrate that he had an insurable interest in the subject vehicle at the time of the alleged loss.

Unhappy with that decision, plaintiff commenced this small claims action against Encompass' EUO counsel, alleging that they had misled Encompass regarding his ownership of the vehicle.  Defendant moved to dismiss this small claims action pursuant to CPLR 3211 (a) (2) [jurisdiction], (7) [fails to state cause of action] and (10) [absence of necessary party]. The District Court granted defendant's motion, and plaintiff appealed.

In AFFIRMING the action's dismissal, the Appellate Term held:

Our review is limited to whether substantial justice was done between the parties according to the rules and principles of substantive law (see UDCA 1804, 1807). Upon our review of the motion papers, we find that defendant's motion to dismiss the action was properly granted, as plaintiff failed to articulate any cognizable cause of action against defendant which would entitle him to relief. Accordingly, there is no basis for this court to reverse the District Court's order dismissing the action.

Nothing presumably prevented plaintiff from suing his insurer directly, but this action against Encompass' EUO counsel failed to state a claim upon which relief could be granted and, thus, was dismissed.  Encompass' EUO counsel owed the insured no duty and had no contractual relationship with him.  Absence the allegation of an independent tort, a claimant's or insured's suit against the insurer's coverage counsel should be subject to summary dismissal.