In an April 22, 2011 decision by Justice Schmidt, the court granted defendant-insurance brokers’ motion for summary judgment dismissing plaintiff-employers’ complaint. Defendants placed plaintiffs into a worker’s compensation self-insurance program that ultimately became insolvent, resulting in plaintiffs being assessed by the Worker’s Compensation Board more than $2.5 million as a participant in the program. Plaintiffs sued asserting claims based on, among other things, breach of fiduciary duty and fraud. The court dismissed the breach of fiduciary duty claims, finding no evidence of the requisite “special relationship” between the parties in that defendant received no compensation for insurance advice, had no exclusive contract with plaintiff, and was not otherwise delegated any special decision-making responsibility. The court also dismissed the fraud claims, finding that defendants’ alleged representations regarding the insurance program’s financial state constituted “representations of opinion or predictions for the future,” which are not actionable as fraudulent, and which, in any event, were made after plaintiffs’ decision to participate in the program.
Consolidated Bus Transit, Inc., et. al. v The Treiber Group, LLC, et. ano., Sup Ct, Kings County, April 22, 2009, Schmidt, J., Index No. 2825/09