| Trupo v Preferred Mut. Ins. Co. |
| 2009 NY Slip Op 00896 [59 AD3d 1044] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| Francis Trupo et al., Respondents-Appellants, v Preferred MutualInsurance Company, Appellant-Respondent. |
—[*1] Knauf Shaw LLP, Rochester (Alan J. Knauf of counsel), forplaintiffs-respondents-appellants.
Appeal and cross appeal from an order of the Supreme Court, Monroe County (Matthew A.Rosenbaum, J.), entered January 7, 2008 in a breach of contract action. The order denieddefendant's motion for summary judgment and granted in part and denied in part plaintiffs' crossmotion for summary judgment.
It is hereby ordered that the order so appealed from is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking a determination that defendant isobligated to provide coverage for damage to their home and personal property pursuant to theterms of the insurance policy issued by defendant to them. Plaintiffs' home was allegedlydamaged when approximately 75 gallons of a chemical mixture were released into theatmosphere from a nearby plant operated by the former Diaz Chemical Corporation. SupremeCourt denied defendant's motion for summary judgment dismissing the complaint and granted inpart plaintiffs' cross motion for summary judgment, determining that the insurance policy inquestion covers damages caused by or arising from the explosion. The court denied that part ofplaintiffs' cross motion for damages in the amount of approximately $144,000, and insteadordered that a hearing on damages would be conducted. We affirm.
The policy issued by defendant provided coverage for "direct physical loss" caused bycertain perils, including explosion. We agree with plaintiffs that the incident at the chemicalplant constitutes an explosion under the policy and that the alleged contamination of their homewas caused by that explosion. We further agree with plaintiffs that the exclusion relied upon bydefendant, entitled "Wear and Tear," does not apply to this case. Pursuant to that exclusion,defendant would "not pay for loss which results from wear and tear, marring, deterioration,inherent vice, latent defect, mechanical breakdown, rust, wet or dry rot, corrosion, mold,contamination or smog" (emphasis added). We reject defendant's contention that,because the damage to plaintiffs' home arises out of pollution or [*2]contamination, the exclusion for "Wear and Tear" applies. Rather,we conclude that the exclusion in question is ambiguous and thus should be construed in favor ofplaintiffs, the insureds (see generallyWhite v Continental Cas. Co., 9 NY3d 264, 267 [2007]; Belt Painting Corp. v TIGIns. Co., 100 NY2d 377, 383 [2003]). The title "Wear and Tear" would lead an averageperson to believe that the exclusion for "contamination" therein included only contamination thatoccurred over time, rather than a sudden occurrence such as the incident here. We haveconsidered defendant's remaining contentions and conclude that they are without merit.
Contrary to the contention of plaintiffs on their cross appeal, the court properly denied thatpart of their cross motion for summary judgment on damages inasmuch as there are triable issuesof fact with respect thereto (see generally Zuckerman v City of New York, 49 NY2d557, 562 [1980]).
All concur except Scudder, P.J., and Pine, J., who dissent in part and vote to modify inaccordance with the following memorandum
Scudder, P.J., and Pine, J. (dissenting in part). We respectfully dissent in part. Although weagree with the majority that the incident at the chemical plant constituted an explosion under theinsurance policy issued by defendant to plaintiffs and that the alleged contamination of plaintiffs'home was caused by that explosion, we disagree with the majority that the policy exclusionrelied upon by defendant does not apply to preclude plaintiffs' recovery under the policy. Thatexclusion is entitled "Wear and Tear," and it provides that defendant will "not pay for loss whichresults from wear and tear, marring, deterioration, inherent vice, latent defect, mechanicalbreakdown, rust, wet or dry rot, corrosion, mold, contamination or smog" (emphasisadded). We cannot agree with the majority that the exclusion in question is ambiguous. Plaintiffssuffered a loss from contamination, and the policy specifically excludes loss resulting fromcontamination. "[U]nambiguous provisions of an insurance contract must be given their plainand ordinary meaning" (White vContinental Cas. Co., 9 NY3d 264, 267 [2007]; see Kula v State Farm Fire & Cas.Co., 212 AD2d 16, 19 [1995], lv dismissed in part and denied in part 87 NY2d 953[1996]).
The majority focuses on the title of the paragraph containing the exclusion in question andconcludes that it would lead an average person to believe that the exclusion for contaminationwas only for contamination that occurred over time. We disagree. Rather, we apply the principleof statutory construction that titles are given little weight. "The title of a statute may be resortedto . . . only in case of ambiguity in meaning, and it may not alter or limit the effectof unambiguous language in the body of the statute itself" (McKinney's Cons Laws of NY, Book1, Statutes § 123 [a]). Inasmuch as the language in the exclusion in question isunambiguous and does not limit the exclusion to contamination that occurs over time, we declineto add such limiting language. We therefore would modify the order by granting defendant'smotion for summary judgment and dismissing the complaint and by denying plaintiffs' crossmotion for summary judgment in its entirety and vacating the determination in favor of plaintiffswith respect to coverage under the insurance policy. Present—Scudder, P.J., Centra,Green, Pine and Gorski, JJ.