Thus, the County contends, the breach of contract occurred as a result of a “negligent act, error or omission,” and the key to determining coverage is not the form of the pleading, but the nature of the insured’s conduct. See Touchette Corp. v. Merchants Mut. Ins. Co., 76 A.D.2d 7, 9, 429 N.Y.S.2d 952, 954 (1980). Under some circumstances, breach of a contractual duty may give rise to an independent action in tort. Preferred Mktg. v. Hawkeye Nat'I Life Ins. Co., 452 N.W.2d 389, 397 (Iowa 1990). “Only where a duty recognized by the law of torts exists between the plaintiff and defendant distinct from a duty imposed by the contract will a tort action lie for conduct in breach of the contract.” Id.; see Cottonwood Enters. v. McAlpin, 111 N.M. 793, 795-96, 810 P.2d 812, 814-15 (1991) (<HOLDING>); W. Page Keeton et al., Prosser and Keeton on
holding that where the contract affirmatively shows the parties intent to charge one party with a duty of care actionable negligence may be predicated upon that contractual duty holding tort of negligence must be based upon duty other that one imposed by contract holding that before a duty can be imposed there must be a relationship between the parties and the harm must have been foreseeable recognizing tort of negligence by words holding that to establish tort liability in a negligence action there must be a legal duty on the part of the defendant to plaintiff