07-26-11 JOSEPH J. TRIARSI, ET AL. VS. BSC GROUP SERVICES, LLC, ET AL.
A-5047-09T1
We affirmed the dismissal of two counts of a three-count complaint alleging that an insurance broker and its agent failed to prevent the cancellation of a life insurance policy, and then failed to assist with its reinstatement. All three counts had been dismissed for failure to serve a timely affidavit of merit. The first count alleged breach of a fiduciary duty. The second alleged professional negligence. We determined that the count alleging the breach of fiduciary duty was essentially the same as the professional negligence count, relying on Aden v. Fortsh, 169 N.J. 64, 78-79 (2001), and that an affidavit of merit was required for both.
We reversed the dismissal of the third count, which alleged a breach of a "special relationship" based upon the insurance agent having "assume[ed] duties in addition to those normally associated with the agent-insured relationship" by conduct that invited plaintiff's detrimental reliance. Finding that the claim does not require proof of a deviation from a professional standard of care, but rather proof of the parties' conduct, we concluded that an affidavit of merit was not required.
We rejected plaintiff's assertion that there were "extraordinary circumstance" warranting a dismissal without prejudice, largely because plaintiff's counsel made a "judgment call" that an affidavit of merit was not required for the first two counts.
