D'Ambrosio, for appellant.
Charles R. Strugatz, for respondents.
Construction Company, amicus curiae.
conclude that where an insurance policy is restricted to
liability for any bodily injury "caused, in whole or in
part" by the "acts or omissions" of the named
insured, the coverage applies to injury proximately caused by
the named insured. The Appellate Division erroneously
interpreted this policy language as extending coverage
broadly to any injury causally linked to the named insured,
and wrongly concluded that an additional insured may collect
for an injury caused solely by its own negligence, even where
the named insured bears no legal fault for the underlying
harm. We reject this "but for" causation
formulation of the policy and, on this appeal, reverse the
Appellate Division's denial of summary judgment in favor
of the insurance company on the issue of coverage.
The Burlington Insurance Company (Burlington), issued an
insurance policy to nonparty Breaking Solutions, Inc. (BSI)
listing as additional insureds defendants, the New York City
Transit Authority (NYCTA) and MTA New York City Transit
(MTA). Burlington denied coverage to NYCTA and MTA on the
grounds that defendants were not additional insureds within
the meaning of the policy because NYCTA was solely
responsible for the accident that caused the injury. This
appeal requires that we interpret whether the additional
insured language of the policy provides coverage where the
named insured is not negligent.
to the undisputed facts, NYCTA contracted with BSI to provide
equipment and personnel and for BSI to perform tunnel
excavation work on a New York City subway construction
project. To comply with NYCTA's insurance requirements,
BSI purchased commercial general liability insurance from
Burlington with an endorsement that listed NYCTA, MTA, and
New York City (City) as "additional insureds."
As specified by NYCTA, BSI agreed to use language in the
endorsement adopted from the latest form issued by a trade
organization known as the Insurance Services Office (ISO),
and which provides, in relevant part, that NYCTA, MTA, and
the City are additional insureds:
"... only with respect to liability for 'bodily
injury', 'property damage' or 'personal and
advertising injury' caused, in whole or in part, by:
1. Your acts or omissions; or
2. The acts or omissions of those acting on your
the coverage period, an NYCTA employee fell off an elevated
platform as he tried to avoid an explosion after a BSI
machine touched a live electrical cable buried in concrete at
the excavation site. The employee and his spouse brought an
action against the City and BSI in federal court, asserting
Labor Law claims, negligence, and loss of consortium
(Kenny v City of N.Y., 2011 WL 4460598 [ED NY, Sept.
to BSI's policy, the City tendered its defense in the
federal action to Burlington, which Burlington accepted
subject to a reservation of rights based on the City's
qualification as an additional insured. Burlington withdrew
its reservation, however, after receiving NYCTA's letter
to BSI that it would not make payments under the contract
unless Burlington agreed to provide coverage for the
City's defense and indemnification without reservation.
the City impleaded NYCTA and MTA in the employee's action
and asserted third party claims for indemnification and
contribution, based on a lease between NYCTA and the City as
a property owner of certain transit facilities. Under Article
6, Section 6.8 of that lease agreement, NYCTA agreed to
indemnify the City for liability "arising out of or in
connection with the operation, management[, ] and control by
the [NYCTA]" of the leased property.
tendered its defense of these claims to Burlington, also as
an additional insured under the BSI policy. Burlington
accepted the defense, subject to the same reservation that
NYCTA qualify as an additional insured under the policy
endorsement. NYCTA did not demand, and Burlington did not
submit, a withdrawal of this reservation.
in the employee's federal lawsuit revealed that NYCTA
failed to identify, mark, or protect the electric cable, and
that it also failed to turn off the cable power. Documents
further established that the BSI machine operator could not
have known about the location of the cable or the fact that
it was electrified. For example, in two internal memoranda,
NYCTA acknowledged its sole responsibility for the accident.
In the first, the NYCTA superintendent explained that
"the excavation equipment operators were operating the
equipment properly and had no way of knowing that the cable
was submerged in the invert." The second memorandum
concluded that "this accident was primarily due to an
inadequate/ineffective inspection process for identifying
job-site hazards involving buried energized cables."
Based on these revelations, Burlington disclaimed coverage of
NYCTA and MTA, asserting that BSI was not at fault for the
injuries and therefore NYCTA and MTA were not additional
insureds under the policy.
district court dismissed the employee's claims against
BSI with prejudice, and the City's third-party claims
against NYCTA without prejudice. Burlington thereafter
settled the lawsuit for $950, 000 and paid the City's
commenced the underlying action in state court after
disclaiming coverage for NYCTA and MTA. Initially, Burlington
sought a declaratory judgment that it did not owe NYCTA and
MTA coverage as additional insureds under BSI's policy.
After settling the employee's action against the City,
Burlington moved to amend its complaint to add a claim for
contractual indemnification as the City's subrogee under
the lease with NYCTA.
Court granted Burlington's motion for summary judgment,
concluding that NYCTA and MTA were not additional insureds
because the policy limited liability to instances where BSI,
as the named insured, was negligent. The court also granted
Burlington's motion to amend the complaint, finding that
the anti-subrogation rule did not bar Burlington's claim
as the City's subrogee. Burlington then moved for partial
summary judgment on its contractual indemnification claim
against NYCTA, which the court granted and subsequently
entered judgment for Burlington for the $950, 000 settlement
amount, along with prejudgment interest, fees, and costs.
Appellate Division reversed, denying plaintiff's motions
for summary judgment and to amend the complaint, and granting
defendants' cross motion for summary judgment on the
first cause of action to the extent of declaring that
defendants were entitled to coverage as additional insureds
under the Burlington policy (132 A.D.3d 127');">132 A.D.3d 127 [1st Dept 2015]).
The court concluded that the named insured was not negligent,
but "the act of triggering the explosion... was a cause
of [the employee's] injury" within the meaning of
the policy (132 A.D.3d at 134-135). The court also determined
that as a consequence, it "necessarily follows that the
anti-subrogation rule bars Burlington from recovering, as the
City's subrogee" (id. at 138). We granted
Burlington leave to appeal (27 N.Y.3d 905');">27 N.Y.3d 905');">27 N.Y.3d 905');">27 N.Y.3d 905 ).
argues that under the plain meaning of the endorsement NYCTA
and MTA are not additional insureds because the acts or
omissions of the named insured, BSI, were not a proximate
cause of the injury. Put another way, Burlington maintains
that the coverage does not apply where, as here, the
additional insured was the sole proximate cause of the
response, NYCTA and MTA also rely on the policy language, but
claim that by its express terms the endorsement applies to
any act or omission by BSI that resulted in injury,
regardless of the additional insured's negligence. They
further argue that the Appellate Division properly concluded
that BSI's operation of its excavation machine provided
the requisite causal nexus between injury and act to trigger
coverage under the policy.
has the better argument. Applying the relevant legal
principles to the policy language, we conclude that there is
no coverage because, by its terms, the policy endorsement is
limited to those injuries proximately caused by BSI.
insurance agreement is subject to principles of contract
interpretation" (Universal Am. Corp. v Nat'l
Union Fire Ins. Co. of Pittsburgh, Pa., 25 N.Y.3d 675,
680 ). Therefore, "[a]s with the construction of
contracts generally, 'unambiguous provisions of an
insurance contract must be given their plain and ordinary
meaning, and the interpretation of such provisions is a
question of law for the court'" (Vigilant Ins.
Co. v Bear Stearns Companies, Inc., 10 N.Y.3d 170, 177
, quoting White v Continental Cas. Co., 9
N.Y.3d 264, 267  [citations omitted]).
policy here states, in relevant part, that an entity is
"an additional insured only with respect to liability
for 'bodily injury' caused, in whole or in part, by
[BSI's] acts or omissions." The defendants argue
that the endorsement does not limit liability to cases in
which an insured's acts or omissions are negligent or
otherwise legally actionable. Essentially, they advocate that
"caused, in whole or in part" means "but
for" causation. Under their reading of the policy, all
that is necessary for an additional insured to be covered is
that the insured's conduct be a causal link to the
injury. This is an incorrect interpretation of the policy
language, which by its terms, describes proximate causation
and legal liability based on the insured's negligence or
other actionable deed.
well established in our law that "but for"
causation, or causation in fact, is "[t]he cause without
which the event could not have occurred" (Black's
Law Dictionary [10th ed. 2014], but-for cause; Dan B. Dobbs
et al., Torts § 186 [2d ed. 2011]; see also Koehler
v Schwartz, 48 N.Y.2d 807, 808-809 ; 14 New York
Practice Series: New York Law of Torts § 8:3]). The term
refers to a link in the chain leading to an outcome, and in
the abstract does no more than state the obvious, that
"any given event, including an injury, is always the
result of many causes" (Dobbs, § 189). However, not
all "but for" causes result in liability and
"[m]ost causes can be ignored in tort litigation"
(id.). In contrast, "proximate cause"
refers to a "legal cause" to which the Court has
assigned liability (Derdiarian v Felix Contracting
Corp., 51 N.Y.2d 308, 314 ; see Hain v
Jamison, 28 N.Y.3d 524, 528-529  ["the
determination of proximate cause involves, among other
things, policy-laden considerations; that is, the chain of
causation must have an endpoint in order 'to place
manageable limits upon the liability that flows from
negligent conduct'"]) . The dissent
suggests that "proximate cause" and "but-for
cause" may be equivalent concepts (dissenting op at 14),
but the law is clear that the two are not synonymous
(see Dobbs, § 189). As the Court has explained,
"'because of convenience, of public policy, of a
rough sense of justice, the law arbitrarily declines to trace
a series of events beyond a certain point'"
(Ventricelli v Kinney Sys. Rent A Car, Inc., 45
N.Y.2d 950, 952, amended 46 N.Y.2d 770');">46 N.Y.2d 770 , quoting
Palsgraf v Long Is. R. R. Co., 248 NY 339, 352
 [Andrews, J., dissenting]).
the Burlington policy endorsement states that the injury must
be "caused, in whole or in part" by BSI. These
words require proximate causation since "but for"
causation cannot be partial. An event may not be wholly or
partially connected to a result, it either is or it is not
connected. Stated differently, although there may be more
than one proximate cause, all "but for" causes bear
some connection to the outcome even if all do not lead to
legal liability. Thus, these words - "in whole or in
part" - can only modify "proximate cause"
(see Dobbs § 189; Black's Law Dictionary,
proximate cause; Hain v Jamison, 28 N.Y.3d at 529).
Defendants' interpretation would render this modification
superfluous, in contravention of the rule that requires us to
interpret the language "in a manner that gives full
force and effect to the policy language and does not render a
portion of the provision meaningless" (Cragg v
Allstate Indem. Corp., 17 N.Y.3d 118, 122 
[internal citations omitted]).
and MTA argue that the language "in whole or in
part" was necessary in order to make clear that the
parties did not mean "solely caused by." Without
the additional language, they contend, the endorsement would
provide NYCTA and MTA coverage only if BSI's acts or
omissions were solely responsible for the loss. We find this
argument is unpersuasive because the phrases "caused, in
whole or in part, by" and "solely caused by"
are not synonymous, either by their plain meaning or legal
effect (see Argentina v Emery World Wide Delivery
Corp., 93 N.Y.2d 554, 561 n 2  [the Court
considered "the proximate cause" to mean "a