## Facts

- Benjamin and Beatrice Aden bought a condominium in New Jersey and contacted their long-time insurance broker, Robert F. Fortsh, to obtain coverage for the unit.
- The parties disputed the content of their conversations, but Aden testified he requested coverage to protect against any losses in the condominium, akin to a homeowners policy for a condo.
- Fortsh procured a unit policy; the condominium association separately maintained a master policy.
- A fire later caused severe damage to the Adens’ unit; the master policy covered only exterior/common elements, and the unit policy covered only part of interior repair costs.
- The Adens sued Fortsh for professional negligence in failing to procure adequate coverage.
- The Adens presented expert testimony that industry standards required a broker to obtain and review the master policy to ensure coordinated, adequate coverage between the master and unit policies.

## Issues

1. Whether, in a broker professional-malpractice action for failure to procure adequate coverage, the broker may assert the insured’s failure to read the policy as comparative negligence.

## Decision

- The Supreme Court of New Jersey reversed the Appellate Division and reinstated the jury verdict for the Adens.
- The court held that a professional insurance broker may not assert, as comparative negligence, that the client failed to read the policy and thereby failed to detect the broker’s alleged procurement error.
- The court clarified that the broker could still contest causation, but could not seek fault apportionment based solely on the insured’s failure to read the policy to discover the broker’s negligence.

## Legal Principles

- Insurance brokers, as professionals, owe a duty to exercise reasonable skill and diligence in procuring insurance appropriate to the client’s needs and instructions.
- In professional-malpractice claims, comparative fault generally does not apply where the plaintiff’s alleged “fault” is failure to understand or perform the very task the professional was hired to perform.
- An insured is entitled to rely on a broker’s expertise; the insured’s failure to read complex policy language is not comparative negligence when the claimed harm is the broker’s failure to obtain adequate coverage.
- The unavailability of comparative negligence in this setting does not foreclose defenses based on lack of proximate cause or on other insured conduct independent of the professional’s retained function (e.g., material misrepresentations or failure to provide necessary information).

## Conclusion

The court treated broker procurement claims as professional-malpractice actions and held that a broker cannot reduce liability by shifting responsibility to the insured for failing to read the policy to uncover the broker’s alleged failure to obtain adequate, coordinated coverage.


Aden v. Fortsh, 776 A.2d 792 (N.J. 2001)