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Decided on September 29, 2009
Supreme Court, New York County

605336/99

Attorney for The Aldrich Group of Plaintiffs: David L. Trueman, Law Offices of David L.
Trueman, P.C., Mineola, New York
Attorneys for the Defendants: Willkie Farr & Gallagher LLP, New York, New York
Shirley Werner Kornreich, J.

The present action arises from plaintiffs' involvement as investors (Names) in syndicates that are reinsurance underwriters for asbestos related risks through the Lloyd's of London (Lloyd's) insurance market. Defendants Marsh & McLennan Co., Inc., Marsh, Inc., Guy Carpenter & Co., Inc., C.T. Bowring & Co. Ltd., and Sedgwick Group, PLC, are the brokers who procured the insurance and reinsurance covering various companies' risks of exposure to asbestos claims. Defendants now move to dismiss plaintiffs' second amended verified complaint pursuant to CPLR 3211 and 3016(b). The first amended complaint, which contained causes of action for negligent misrepresentation and fraud, was dismissed by Justice Cahn as time-barred. Justice Cahn then granted plaintiffs' motion to amend the pleadings on October 15, 2007. Familiarity with Justice Cahn's previous decisions is presumed.
I.Background
Briefly, in 2002, Justice Cahn found that plaintiffs consisted of 104 individual Names and two corporate reinsurance companies. Justice Cahn further found that common to the causes of action alleged in the first complaints, were allegations that Marsh & McLennan Co., Inc. and its wholly owned subsidiary Marsh, Inc. (collectively, Marsh), as insurance broker for Johns-Manville, knew the extent of Johns-Manville's liability for asbestos related illnesses as early as 1978, but never revealed the true extent of that liability to the underwriting industry, or fraudulently misrepresented those facts to the underwriters and to reinsurers. Plaintiffs contended they first learned of the true extent of the asbestos claims against Johns-Manville in 1996, through the efforts of one of the Names, a journalist, but not a plaintiff in the action. This [*2]journalist allegedly had uncovered documentary proof of defendants' early knowledge of the true risks facing Johns-Manville and made the information known to plaintiffs.
Justice Cahn dismissed plaintiffs' claims for negligent misrepresentation based on the running of the six-year statute of limitations, which was found to have commenced at the time the injury was incurred, without any toll for injuries which were alleged to have been unknown to plaintiffs when incurred and later discovered. The claims for fraud were found to have been sufficiently pleaded and were referred to a Special Referee to hear and report on the issue of their timeliness, under the discovery rule contained in CPLR 208 (g). Justice Cahn confirmed the referee's finding that, with reasonable diligence, the plaintiffs could have discovered the defendants' alleged fraud much earlier than they did, and dismissed the remaining fraud claims based on the running of the statute of limitations. His decision was affirmed on appeal by the Appellate Division, 52 AD3d 435 (1st Dept 2008), and leave to appeal was denied by the Court of Appeals, 11 NY3d 716 (2009).
II.Second Amended Complaint
The single claim in the instant action is based on common-law indemnity against the brokers who placed the insurance. The claim is brought by 64 Names who are residents of Canada, the United Kingdom and the United States. In its ad damnum clause, plaintiffs seek a declaratory judgment of non-liability with respect to possible future damages for which they may be liable in related lawsuits, as well as indemnification, punitive and exemplary damages.
Plaintiffs again claim that they invested in syndicates that underwrote policies of reinsurance and insurance based on defendants' fraudulent or negligent omissions regarding the risks to be insured.[FN1] As a result of defendants' alleged misrepresentations of the risks to be covered and resulting failure to collect sufficient premiums, plaintiffs claim they had to pay out on covered risks both directly and by contribution to a settlement agent, or by some other payment vehicle. Plaintiffs contend defendants' conduct "breached their...duty of utmost good faith," "uberrimae fidei," owed to the syndicates and plaintiffs.
According to plaintiffs, this second amended complaint is necessitated by "material new developments" which occurred following the filing of the first amended complaint on May 22, 2001. Second Amended Complaint,

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