Tri Town Antlers Foundation, Inc. v. Fireman's Fund Insurance

Callahan and Lawton, JJ. (dissenting).

We must respectfully dissent because, contrary to the majority view, we do not believe that the provision of the policy is ambiguous.

The provision in issue is intended to provide reimbursement to an insured for additional wages that it may be required to pay its employees for extra work incurred in preparing inventories or other loss data for completing a proof of loss. This provision is not intended to provide reimbursement to an insured for expenses incurred in retaining the optional services of a public adjuster. A "public adjuster” is defined in Insurance Law § 2101 (g) (2) as "any person, firm, association or corporation who, or which, for money, commission or any other thing of value, acts or aids in any manner on behalf of an insured in negotiating for, or effecting, the settlement of a claim or claims for loss or damage to property of the insured in this state”. The duties of a public adjuster, as shown by the foregoing definition, are not limited to those necessary for completing a proof of loss for which reimbursement is provided, but also involve expertise in evaluating, negotiating and effecting settlements of fire loss claims, for which no reimbursement is provided. A public adjuster’s contract for services and its fees are directly regulated by the Superintendent of Insurance (see, Insurance Law § 2108 [p]; 11 NYCRR 25.6, 25.13 [a]). Thus, a public adjuster is an independent contractor, not an employee, and its fees are not wages within the meaning of the disputed provision. We conclude, therefore, that plaintiff’s complaint should be dismissed. (Appeal from judgment of Supreme Court, Onondaga County, Mordue, J.— breach of contract.) Present — Dillon, P. J., Callahan, Denman, Balio and Lawton, JJ.