distance off the coastline. On July 4, 2001, BFI produced a fireworks display off the coast of Atlantic City, New Jersey. Prior to the show, BFI leased two barges to be used as fireworks platforms from Donjon Marine Co. ("Donjon"). During the show, an accident occurred that caused damage to the two barges that were situated off the coastline.
It is alleged that Frenkel, BFI's insurance broker, procured insurance that covered the July 4, 2001 display of fireworks performed in Atlantic City. Donjon, the owner of the barges, required a marine insurance policy as a condition to its charter party agreement. On July 5, 2001, BFI reported the claim to Frenkel to recover the damages that were sustained during the show. Frenkel then reported the claim to AGF, theunderwriter, and defendant Intermodal Transportation Services, Inc. ("ITS"), a marine surveyor.
Frenkel accepted the claim and undertook to have the repairs made by UDD within 21 days for a total cost of $112,000. BFI paid a $10,000 deductible to the Frenkel in connection with the claim. In October 2001 the first barge was repaired. In December 2001, the second barge was returned without any repairs having been made to it. According to BFI, the owner of the barges, Donjon, agreed to settle the claim with AGF for a lump sum payment instead of repairing the barge. On January 8, 2002, Donjon and AGF executed a general release for the physical damage sustained by the second barge with payment to Donjon in the sum of $67,000. BFI contends that it