—In an action, inter alia, for a judgment declaring that the defendant Merchants Insurance Company of New Hampshire, Inc., is obligated to defend and/or indemnify the plaintiffs in an underlying action entitled Plato Gen. Constr. Corp. v S & J Sheet Metal, pending in the Supreme Court, Suffolk County, under Index No. 3135/94, (1) the defendant Business Insurance Agency, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Seidell, J.), dated November 22, 1999, as denied those branches of its cross motion which were for summary judgment dismissing the complaint insofar as asserted against it and on its cross claim, and the defendant Merchants Insurance Company of New Hamp
Ordered that the appeals from the order dated November 22, 1999, are dismissed, as that order was superseded by the order dated April 24, 2000, made upon reargument; and it is further,
Ordered that the order dated April 24, 2000, is modified, on the law, by deleting the provisions thereof adhering to so much of the order dated November 22, 1999, as (1) denied the motion of the defendant Merchants Insurance Company of New Hampshire, Inc., for summary judgment dismissing the complaint insofar as asserted against it, (2) denied that branch of the cross motion of the defendant Business Insurance Agency, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it, and (3) granted that branch of the plaintiffs’ motion which was for summary judgment on their third cause of action and substituting therefor provisions (1) granting the cross motion of the defendant Merchants Insurance Company of New Hampshire, Inc., (2) granting that branch of the cross motion of the defendant Business Insurance Agency, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it, and (3) denying that branch of the plaintiffs’ motion which was for summary judgment on its third cause of action; as so modified, the order dated April 24, 2000, is affirmed insofar as appealed from, the order dated November 22, 1999, is modified accordingly, and the matter is remitted to the Supreme Court, Suffolk County, for entry of a judgment declaring that Merchants Insurance Company of New Hampshire, Inc., is not obligated to defend or indemnify the plaintiffs in the underlying action; and it is further,
Ordered that the defendants are awarded one bill of costs.
The plaintiff, Structural Building Products Corp., is a company which distributes various construction related items and accessories, and the plaintiff Alan Birnbaum is its president (hereinafter collectively Structural). Plato General
We agree with Merchants’ contention that the Supreme Court misconstrued the terms of the policy to create an ambiguity, thereby creating coverage where none existed. It is clear that the claims in the Plato action do not fall within the scope of the insurance coverage provided by the Merchants’ policy. That policy provided coverage only for claims arising out of “bodily injury” or “property damage,” and the complaint in the Plato action does not seek to recover for those types of damages.
The general rule is that a commercial general liability insurance policy does not afford coverage for breach of contract, but rather for bodily injury and property damage. To hold otherwise would render an insurance carrier a surety for the performance of its insured’s work (see, Zandri Constr. Co. v Firemen’s Ins. Co.,
Based on the Merchants’ policy which provides coverage only for bodily injury and property damage, the allegations in the complaint in the Plato action do not require Merchants to defend or indemnify Structural in that action. We reach this conclusion without reliance on any exclusions contained in the Merchants’ policy.
There is also no obligation on the part of Merchants to defend or indemnify Structural in connection with the third cause of action in the Plato complaint. That cause of action alleges that Structural engaged in false advertising and misleading trade practices when it made written statements that its adhesive was asbestos-free, when in fact it contained asbestos. The “Advertising Liability Offense” section of the Merchants’ policy provides coverage for damages because of “advertising offense.” The term advertising offense “means injury incurred in the course of the [plaintiffs] advertising activities” if the injury arises out of “libel, slander, defamation, violation of a right to privacy, piracy, unfair completion or infringement of copyright, title or slogan.” The complaint in the Plato action does not allege any facts that would bring it within the coverage provided by the policy.
The Supreme Court also erred in failing to dismiss Structural’s causes of action insofar as asserted against its broker, BIA. “[A]n agent or broker may be held liable for neglect in failing to procure insurance, with liability limited to that which would have been borne by the insurer had the policy been in force” (American Motorists Ins. Co. v Salvatore,
In light of our determination we need not address the parties’ remaining contentions. Santucci, J. P., Krausman, S. Miller and Smith, JJ., concur.