Fireman's Fund Ins. Co. v. TD Banknorth Ins. Agency, Inc.
Annotate this CaseA construction company (Constructor) retained Defendant to arrange insurance for a new housing development. Defendant procured insurance from two insurance companies (Peerless and Hartford). Peerless denied coverage for a house destroyed by fire that was built on a lot not listed in Peerless's policy. Haynes claimed against Defendant for its negligent omission of the lot. Defendant gave notice of the loss to Plaintiff, from whom Defendant had purchased errors and omissions coverage. Defendant and Plaintiff settled with Constructor for $354,000. Constructor assigned its rights against Peerless and Hartford to Plaintiff and Defendant collectively. Defendant and Plaintiff then proceeded against the insurers for the $354,000. After the parties settled, $208,000 was deposited in an escrow account. Plaintiff sought a declaration that it was entitled to all of the escrow funds. Defendant counterclaimed for a declaration that, under Connecticut's make whole doctrine, it was entitled to recover the $150,000 deductible it contributed to the $354,000. The district court granted summary judgment for Plaintiff. The Supreme Court accepted certification from the appellate court and answered its questions by holding (1) the make whole doctrine is the default rule under Connecticut law; and (2) the make whole doctrine does not apply to insurance policy deductibles.
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