Broker’s Motion to Dismiss Denied

    The broker’s argument that its liability could not be established until after the insurer was found to have breached the policy failed. Pedernal Props., LLC v. Marsh United States Inc., 2022 U.S. Dist. LEXIS 207618 (N. D. Okla. Nov. 16, 2022). 

    Marsh procured a property policy from Markel American Insurance Company naming Pedernal as the insured. Pedernal suffered a loss and submitted a claim to Market. Markel denied the tender and refused payment to Pedernal. Pedernal then filed suit against Markel for breach of contract and bad faith in its claim handling. Pedernal also alleged Marsh omitted certain information from Markel in connection with the insured property. Pedernal sought damages from Marsh for negligence.

    Marsh moved to dismiss, contending that an insured could not pursue both a coverage determination agains its insurer while also seeking recovery against the broker who procured the policy. The action against the broker could only accrue after the resolution of coverage litigation against the insurer.

    Oklahoma law did not preclude Pedernal’s action against Marsh while simultaneously seeking coverage from Markel. Contingent claims were permissible. Further, the statute of limitation period for Pedernal’s negligence claim was two years. A negligence claim accrued when any injury to a plaintiff for which an action could proceed was certain. Therefore, Pedernal’s negligence cause of action against Marsh, as its broker, could be subject to a statute of limitations argument later in the proceedings if Marsh was not included in the Complaint at this time.

    Accordingly, Marsh’s motion to dismiss was denied.