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Rokeach v. Hanover Insurance Co.

United States District Court, S.D. New York

May 19, 2015

RAFER ROKEACH d/b/a DOUBLE R WELDING, INC., Plaintiff,
v.
HANOVER INSURANCE COMPANY, Defendant.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, District Judge.

I. INTRODUCTION

Hanover Insurance Company denied the plaintiff's claim for $80, 000 in losses arising from a series of thefts on the plaintiff's property. While Hanover acknowledges that the losses were covered by its policy, it argues that the policy's deductibles provision precludes the plaintiff from obtaining any recovery. The deductibles provision requires the payment of a $1, 000 deductible for each "occurrence" that gives rise to a loss. Hanover argues that each of the multiple instances of theft was a separate "occurrence, " and that the plaintiff cannot prove that the loss in any one occurrence exceeded the $1, 000 deductible, which, in Hanover's view, bars all recovery. The plaintiff argues, among other things, that the series of thefts on his property should be treated as a single occurrence, subject to a single deductible. Because the Court finds that the meaning of the undefined term "occurrence" used in the deductibles provision of this first party property insurance policy is ambiguous, the Court denies the defendant's motion for summary judgment.

II. BACKGROUND

a. The Theft

The plaintiff, Mr. Rafer Rokeach d/b/a Double R Welding, Inc., operates a welding business in Uniondale, New York. Plaintiff's Response to Defendant's Rule 56.1 Statement ("Pl. Resp. 56.1") at ¶ 1. The plaintiff stored a considerable amount of metal in an ungated yard on his property. Id. at ¶ 2.

Mr. Rokeach's business was robbed in the summer of 2011. Mr. Rokeach first noticed that material had been stolen in mid-June, when one of his employees pointed out that a scrap bin was empty. Defendant's Response to Plaintiff's Rule 56.1 Counterstatement ("Def. Resp. 56.1") at ¶ 1, 2. After he discovered the theft, the plaintiff inspected the property and found that he was missing a "massive amount of material." Id. at ¶ 2. Mr. Rokeach's inspection also revealed to him that the thieves had staged additional material for future removal by dragging some items from one end of his property to the other. Id. at ¶ 5. Mr. Rokeach later testified that he believed that multiple people and multiple loads were required to remove the stolen materials from his property. Pl. Resp. 56.1 at ¶ 9.

Mr. Rokeach reported the theft of materials from his property to the police. Def. Resp. 56.1 at ¶ 6. Then he spoke with his neighbors, who told him that they had heard noise late at night on his property for "a few weeks." Pl. Resp. 56.1 at ¶ 5; Def. Resp. 56.1 at ¶ 6. According to Mr. Rokeach, while the neighbors had heard loud noises on the property at night over a period of weeks, "[t]hey never thought anything of it because sometimes I work around the clock." Deposition of Mr. Rafer Rokeach ("Rokeach Dep.") at 103:9-11; Def. Resp. 56.1 at ¶ 7. One neighbor, a former police officer, told Mr. Rokeach that about a week before Mr. Rokeach reported the theft to the police, the neighbor's wife had heard a lot of noise in a short period of time, and then that they had seen a truck with a trailer come into the property. Rokeach Dep. at 132:18-133:13; Pl. Resp. 56.1 at ¶ 8.

Another neighbor, who lives 200 feet from Mr. Rokeach's property, provided even more detail regarding the thefts. He stated that he saw the same two men on Mr. Rokeach's property on four separate occasions, starting in the middle of June 2011. Affidavit of Peter Arrichio, Ex. 3 to Affidavit of Roman Rabinovich ("Arrichio Aff."), Docket No. 43, at ¶¶ 2-6. He saw the two men taking metal goods from Mr. Rokeach's property and loading it into a pickup truck; they used the same pickup truck on each occasion. Id. Mr. Arrichio says that it took the men "approximately an hour each to take the items over the course of a couple trips per instance." Id. at ¶ 5. Like Mr. Rokeach's other neighbors, Mr. Arrichio did not think that the men were thieves, believing, instead, that they were they working for Mr. Rokeach.

Once they were alerted to the series of thefts from Mr. Rokeach's property, Mr. Rokeach's neighbors were "very upset." Rokeach Dep. at 52:20-25. They began to look after the property. Id. Mr. Arrichio, in particular, realized that the men he had observed on Mr. Rokeach's property were thieves. Arrichio Aff. at ¶ 10. The next time that Mr. Arrichio saw the men on the property, he called the police, and they were arrested. Id. at ¶ 11. The arrest occurred on July 21, 2011. Def. Resp. 56.1 at ¶ 8.[1]

b. The Claim

After the thieves were arrested, on July 21, 2011, Mr. Rokeach reported his losses to his insurance provider, Hanover Insurance Company, the defendant in this case. Declaration of Christopher Tivnan ("Tivnan Aff."), Docket No. 36, at ¶ 3. Mr. Rokeach claimed reimbursement for his losses under a business owner's policy issued by Hanover on November 11, 2011, which covered the period from February 22, 2011 to February 22, 2012. Pl. Resp. 56.1 at ¶ 13. As described in more depth below, the policy provided broad coverage for both property losses and claims for liability against the plaintiff's business.

The plaintiff submitted a sworn proof of loss on May 15, 2012, claiming $80, 000 in covered losses from the theft on his property. Tivnan Aff. at ¶ 5, Ex. 3. Mr. Rokeach provided a hand written inventory of the stolen property, consisting of $77, 722.16 of his own property and $3, 247.18 of property belonging to others. Def. Resp. 56.1 at ¶ 10. The plaintiff prepared that inventory of stolen goods after the thefts occurred, using replacement cost values based on the original purchase price of the items that he identified as stolen. Id. at ¶ 11.

Hanover ultimately denied the plaintiff's claim. In a letter dated June 11, 2012, Hanover explained the ...


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