| Jahier v Liberty Mut. Group |
| 2009 NY Slip Op 05948 [64 AD3d 683] |
| July 21, 2009 |
| Appellate Division, Second Department |
| Jefrey A. Jahier et al., Respondents, v Liberty MutualGroup et al., Appellants. |
—[*1] Kalb & Rosenfeld, P.C., Commack, N.Y. (John A. Meringolo of counsel), forrespondents.
In an action to recover damages for breach of contract and for a judgment declaring that thedefendants are obligated to provide coverage for certain damage to the plaintiffs' propertypursuant to a homeowners insurance policy issued by them to the plaintiffs, the defendantsappeal from an order of the Supreme Court, Suffolk County (Jones, J.), entered October 15,2008, which denied their motion for summary judgment dismissing the first cause of actionalleging breach of contract and declaring that they were not so obligated, and granted theplaintiffs' cross motion for summary judgment on the issue of liability on the first cause of actionalleging breach of contract and declaring that the defendants are obligated to provide coverageunder the subject homeowners insurance policy for the loss sustained by the plaintiffs.
Ordered that the order is reversed, on the law, with costs, the plaintiffs' cross motion forsummary judgment on the issue of liability on the first cause of action alleging breach of contractand declaring that the defendants are obligated to provide coverage for certain damage to theplaintiffs' property pursuant to a homeowners insurance policy issued to them is denied, thedefendants' motion for summary judgment dismissing the first cause of action alleging breach ofcontract and declaring that they are not so obligated is granted, and the matter is remitted to theSupreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that thedefendants are not obligated to provide coverage pursuant to the homeowners insurance policyissued by them to the plaintiffs, for the loss sustained by the plaintiffs.
The defendants Liberty Mutual Group and the First Liberty Insurance Corporation(hereinafter together Liberty), issued a deluxe homeowners insurance policy (hereinafter thepolicy) insuring, inter alia, the plaintiffs' residence and other structures located on their property.In April 2007, during the coverage period, the plaintiffs' inground swimming pool, thesurrounding patio area, and the plumbing which serviced the pool sustained damage when thepool lifted up several inches out of the ground. At the time of the loss, the pool was not filledwith water, as it had been drained by a contractor hired by the plaintiffs to perform maintenancework. During the time that the pool was empty, and shortly before the plaintiffs discovered thedamage, heavy rains had fallen [*2]in the area. The plaintiffsmade a claim pursuant to the policy, but Liberty disclaimed coverage based upon clauses in thepolicy which excluded losses due to "Earth Movement" and "Water Damage."
In July 2007 the plaintiffs commenced this action against Liberty, alleging breach ofcontract, and for a judgment declaring that Liberty was obligated to provide coverage under thepolicy for the claimed loss. The Supreme Court denied Liberty's motion for summary judgmentdismissing the breach of contract cause of action and declaring that it was not so obligated andgranted the plaintiffs' cross motion on the issue of liability on the breach of contract cause ofaction and declaring that Liberty was so obligated. We reverse.
"[C]ourts bear the responsibility of determining the rights or obligations of parties underinsurance contracts based on the specific language of the policies" (State of New York vHome Indem. Co., 66 NY2d 669, 671 [1985]; see Cali v Merrimack Mut. Fire Ins. Co., 43 AD3d 415, 416[2007]). An exclusion from coverage "must be specific and clear in order to be enforced" (Essex Ins. Co. v Pingley, 41 AD3d774, 776 [2007], quoting Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311[1984]; see Lee v State Farm Fire &Cas. Co., 32 AD3d 902, 903 [2006]). An ambiguity in an exclusionary clause must beconstrued most strongly against the insurer (see Ace Wire & Cable Co. v Aetna Cas. & Sur.Co., 60 NY2d 390, 398 [1983]; Breed v Insurance Co. of N. Am., 46 NY2d 351, 353[1978]). However, "the plain meaning of the policy's language may not be disregarded to find anambiguity where none exists" (AtlanticBalloon & Novelty Corp. v American Motorists Ins. Co., 62 AD3d 920, 922 [2009];see Cali v Merrimack Mut. Fire Ins. Co., 43 AD3d at 417). Where an insurer deniescoverage based upon an exclusion, the burden is on the insurer to demonstrate that the exclusionapplies in the particular case and that it is "subject to no other reasonable interpretation"(Seaboard Sur. Co. v Gillette Co., 64 NY2d at 311).
In this case, the Supreme Court erred in denying Liberty's motion for summary judgment andin granting the plaintiffs' cross motion for summary judgment. Liberty met its initial burden ofestablishing its entitlement to judgment as a matter of law by demonstrating that the "waterdamage" exclusion clearly and unambiguously applied to the plaintiffs' loss (see Reynolds vStandard Fire Ins. Co., 221 AD2d 616 [1995]; Hipper v CNA Ins. Co., 2002 NY SlipOp 40109[U] [App Term, 9th & 10th Jud Dists 2002]; see generally Cali v Merrimack Mut.Fire Ins. Co., 43 AD3d at 417; Sheehan v State Farm Fire & Cas. Co., 239 AD2d486, 487 [1997]; Kula v State Farm Fire & Cas. Co., 212 AD2d 16, 20 [1995]). Theplain language of the exclusion relieves Liberty from loss caused "directly or indirectly" by"[w]ater damage, meaning . . . [w]ater below the surface of the ground, includingwater which exerts pressure on . . . a building . . . swimming pool orother structure." Furthermore, losses due to "water damage" are excluded "regardless of anyother cause or event contributing concurrently or in any sequence to the loss." Here, the evidencedemonstrated that the plaintiffs' loss was attributable to the subsurface water pressure that wasexerted upon the empty swimming pool, even though it was precipitated by the drainage of thepool and heavy rainfall (see Cali v Merrimack Mut. Fire Ins. Co., 43 AD3d at 417-418;Sheehan v State Farm Fire & Cas. Co., 239 AD2d at 487; Reynolds v Standard FireIns. Co., 221 AD2d 616, 616-617 [1995]; Kula v State Farm Fire & Cas. Co., 212AD2d at 20-21; Hipper v CNA Ins. Co., 2002 NY Slip Op 40109[U] [App Term, 9th &10th Jud Dists 2002]; South Carolina Farm Bur. Mut. Ins. Co. v Durham, 380 SC 506,671 SE2d 610 [2009]). In opposition to Liberty's motion and in support of its cross motion forsummary judgment, the plaintiffs failed to raise a triable issue of fact or establish their primafacie entitlement to judgment as a matter of law, respectively, so as to preclude the award ofsummary judgment to Liberty (see Zuckerman v City of New York, 49 NY2d 557, 562[1980]).
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Suffolk County, for the entry of a judgment, inter alia, declaring that Liberty is notobligated to provide coverage for the loss sustained by the plaintiffs pursuant to the homeownersinsurance policy issued by it (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appealdismissed 371 US 74 [1962], cert denied 371 US 901 [1962]).
The plaintiffs' remaining contentions either are without merit or have been renderedacademic by our determination. Rivera, J.P., Skelos, Balkin and Leventhal, JJ., concur.[See 2008 NY Slip Op 32825(U).]