T. & R. Carriers, Inc. v. Yorkshire Insurance

Motion by defendant Albert Bluth & Company, Inc., to dismiss the complaint as to it pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice is granted.

The first and second causes of action asserted against the codefendant, an insurance carrier, seek recovery on a burglary insurance policy. The third cause is alleged against the moving defendant.

• In connection with plaintiff’s claim, the moving defendant, as the agent of the codefendant, rendered an investigation report to the said codefendant carrier as its principal. On the basis of said report, the codefendant carrier has refused to pay plaintiff its claim. Plaintiff alleges that the report was incomplete and false and by reason thereof the moving defendant is liable to plaintiff in an amount equal to the burglary loss ■ sustained.

If, as alleged by plaintiff, the agent’s report is false, then in that event the defendant carrier could conceivably become liable to plaintiff on the policy. If, on the other hand, the agent’s report were to be sustained, clearly the moving defend*632ant would not be liable. In any event, defendant agent, coueededly defendant carrier’s representative, owed a duty only to its principal, not to the plaintiff. In the absence of any showing of a legal duty owed by the defendant agent to the plaintiff, the action against the agent is not maintainable.