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Frederick J. Platek and Mary E. Platek v. Town of Hamburg

July 6, 2012

FREDERICK J. PLATEK AND MARY E. PLATEK,
PLAINTIFFS-RESPONDENTS,
v.
TOWN OF HAMBURG, ET AL., DEFENDANTS,
AND ALLSTATE INDEMNITY COMPANY, D EFENDANT-APPELLANT.



Appeal from an order of the Supreme Court, Erie County (Ralph A. Boniello, III, J.), entered May 12, 2011 in a breach of contract action.

Platek v Town of Hamburg

Decided on July 6, 2012

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ.

The order granted the motion of plaintiffs for summary judgment, declared that plaintiffs' loss is covered by the subject insurance policy, directed defendant Allstate Indemnity Company to pay plaintiffs' claim and denied the cross motion of defendant Allstate Indemnity Company for summary judgment.

It is hereby ORDERED that the order so appealed from is modified on the law by vacating the declaration and as modified the order is affirmed without costs.

Memorandum:

Plaintiffs commenced this action for, inter alia, breach of contract, alleging that defendant Allstate Indemnity Company (Allstate) breached its insurance contract with plaintiffs by failing to provide coverage for water damage to the basement of their home after an abutting water main ruptured and water flooded their property. Allstate disclaimed coverage pursuant to an exclusion in the insurance policy, denominated "item 4," which states that Allstate does not cover losses caused by "[w]ater . . . on or below the surface of the ground, regardless of its source . . . [,] includ[ing] water . . . which exerts pressure on, or flows, seeps or leaks through any part of the residence premises." Plaintiffs moved for summary judgment, seeking a declaration that the insurance policy covered their claimed loss and directing Allstate to pay their claim. Plaintiffs relied upon a provision in the insurance policy setting forth an exception to the exclusion relied upon by Allstate, which provides that Allstate covers "sudden and accidental direct physical loss caused by fire, explosion or theft resulting from item[] . . . 4 . . . ." Plaintiffs averred that the exception applies because their claimed loss was caused by an "explosion" of the water main. Allstate cross-moved for summary judgment dismissing the complaint against it on the ground that the insurance policy does not cover plaintiffs' loss.

Supreme Court granted the motion and denied the cross motion, declaring that plaintiffs' loss is covered under the insurance policy and directing Allstate to pay plaintiffs' claim in accordance with the policy provisions. Although we conclude that the court properly granted summary judgment to plaintiffs on the issue of liability, we further conclude that the court erred in "declaring" that plaintiffs' claimed loss is covered under the policy, inasmuch as the action against Allstate is for breach of contract and not a declaratory judgment (see Gravino v Allstate Ins. Co., 73 AD3d 1447, 1448, lv denied 15 NY3d 705). We therefore modify the order by vacating the declaration.

The parties disagree with respect to whether the exception to item 4 under the policy exclusions applies, and they offer conflicting interpretations of that exception. Allstate characterizes the exception as an "ensuing loss" provision, and it thus interprets the exception to provide that any initial loss to the insured's property caused by the conditions set forth in item 4, i.e., "[w]ater . . . on or below the surface of the ground," is not covered under the policy but that, in the event that there is an "explosion . . . resulting from" that initial loss, any secondary or ensuing loss caused by the explosion is covered. Plaintiffs disagree that there must be a secondary or ensuing loss, and they assert that the exception applies because there was an "explosion [of the water main] resulting from" the conditions set forth in item 4, i.e., "[w]ater . . . below the surface of the ground," and causing "sudden and accidental direct physical loss" to their property.

In our view, both interpretations are "reasonable" (Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co., 12 NY3d 302, 308), and we therefore conclude that the exception "is ambiguous and thus should be construed in favor of plaintiffs, the insureds" (Trupo v Preferred Mut. Ins. Co., 59 AD3d 1044, 1045; see generally White v Continental Cas. Co., 9 NY3d 264, 267; Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377, 383). Contrary to Allstate's contention, the relevant language of the insurance policy does not specify that the exception applies only to a secondary or ensuing loss or that the explosion must result from a loss to the insured's property caused by the conditions set forth in item 4. Rather, the policy states that the exception applies where the loss to the insured's property was "caused by [an] explosion . . . resulting from item[] . . . 4 . . . ."

We further conclude that plaintiffs established their entitlement to summary judgment by demonstrating that the exception at issue applies to their claimed loss (see generally Topor v Erie Ins. Co., 28 AD3d 1199, 1200). The term "explosion" is not defined in the insurance policy, and we thus "afford that term its plain and ordinary meaning' " (Gallo v Travelers Prop. Cas., 21 AD3d 1379, 1380). Webster's Third New International Dictionary defines "explosion" as "an act of exploding" (Webster's Third New International Dictionary 802 [2002]), and to "explode" is "to burst violently as a result of pressure from within" (id. at 801). Here, plaintiffs submitted evidence, i.e., the affidavits of plaintiff Frederick J. Platek and an expert engineer, sufficient to establish as a matter of law that there was an "explosion" of the water main abutting their property caused by the build up of pressure therein; that the pressure in the water main "result[ed] from" the conditions set forth in item 4, i.e., "[w]ater . . . below the surface of the ground"; and that the explosion of the water main caused "sudden and accidental direct ...


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