Opinion
52604/02.
Decided June 6, 2006.
Defendant, Travelers Indemnity Company of Connecticut (hereinafter, Travelers), has moved this court for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint herein. Travelers asserts that the plaintiff's insurance policy does not provide coverage on the property damage claim for water damage that the plaintiff, Sephardic Lebanese Congregation, Inc. (hereinafter, Sephardic) sustained on January 6, 2002 from a toilet overflow in its (Sephardic's) premises. More to the point, Travelers asserts that "[t]he policy excludes coverage for damages caused by water which backs up through sewers or drains when the stoppage is located in pipes off the insured premises [except where the cause of the back up originates on the insured premises]. The policy provides coverage when the stoppage is in pipes on the insured's premises. The evidence is overwhelming that the flooding plaintiff sustained was due to a stoppage, not on its premises, but in the city sewer main beneath the public thoroughfares. Given the facts of the case[,] plaintiff has no right of recovery here and its complaint must be dismissed." In support of that contention, Travelers points to three facts; to wit, 1. that a private plumber called by the plaintiff snaked its pipes, was unable to clear the stoppage, and thereupon directed Sephardic to the Department of Environmental Protection (hereinafter, DEP); 2. that DEP, which according to a deposed supervisor does not work on private sewer lines, responded to Sephardic's premises, but thereafter resolved the problem by clearing a blockage in the city sewer main outside of the plaintiff's premises; and, 3. that its privately retained professional engineer concluded ". . . within a reasonable degree of engineering certainty, [that] plaintiff's flood was due to a stoppage in the city's sewer lines underneath the public thoroughfares and not because of any condition originating within plaintiff's premises."
Sephardic interposed a cross-motion for an order, pursuant to CPLR § 3212, granting it summary judgment for the following reasons. The DEP supervisor referenced by Travelers "testified throughout his deposition that he lacks any knowledge of the events that took place at the subject premises the night of the loss. Not only was [he] not present, he was not even the supervisor assigned to the service call." The professional engineer, in turn, failed to detail any substantive tests that he conducted to determine the cause of the alleged backup. The report that he submitted is dated prior to receipt of any documents from DEP that he claims to have relied upon. Hence, his ". . . conclusions were drawn without personal knowledge and without any documentary support." Sephardic also argues that Travelers' position is flawed in that
". . . the subject policy fails to define what a back up,' as referenced to in the policy, actually is. . . . [and] Travelers has failed to offer any evidence from anyone who can testify that the origin of the water entering the premises was the result of a back up' in the City's water mains as oppose (sic) to another source." Sephardic posits that it could have been the result of the excess rain (almost an inch over four to five hours) that had fallen, as evidenced by the climatological data report for the day in question. In addition, Sephardic notes that there is no explanation given for the cause of the interruption in the water main. Finally, Sephardic asserts that ". . . no investigation was done to determine the nature of the substance that entered the premises.
Accordingly, Defendant failed to show that the substance entering Plaintiff's premises was water, as required by the policy. . . . the substance that entered the premises was not water. It was brownish in color, had an arduous smell, and contained a significant amount of dirt and other filth [sewage]." More particularly, in its memorandum of law, Sephardic highlighted that "[u]nder New York law, it is well settled that terms in insurance policies should be given their plain, ordinary meaning by the courts. Caporino v. Traveler's Insurance Co., 62 NY2d 234, 476 NYS2d 519 (1984). The tests to be applied in construing an insurance policy are common speech . . . and the reasonable expectation and purpose of the ordinary businessman. Ace Wire Cable Co., Inc. v. Aetna Casualty Surety Company, 60 NY2d 390, 469 NYS2d 655 (1983). The rationale is that if the policy language is unclear and can reasonably be interpreted in a way that affords coverage, the ambiguity should be resolved against the insurer, the draftsman of the language. Moshinko, Inc. v. Seiger Smith, Inc., 137 AD2d 170, 529 NYS2d 284 (1st Dept., 1988). In addition, Sephardic maintains that "New York courts have consistently held that under an all risk policy of insurance, losses are covered unless specifically excluded. MH Lipiner v. The Hanover Ins. Co., 869 Fed 685 (2nd Cir. 1989); Chase Manhattan Bank v. New Hampshire Ins. Co., 193 Misc 2d 580. . . . Accordingly, the insurer has [the] burden to demonstrate that the loss of covered property resulted from facts placing the loss within the exclusion in the policy in order to avoid liability. Allied Van Lines Intern. Corp. v. Centennial Ins. Co., 685 F. Supp. 344 [S.D.NY, 1988]). Furthermore, Sephardic argues that "where comprehensive words in a contract are followed by an enumeration of specific things, under the rule of ejusdem generis the things coming within the comprehensive words will be limited to those of a like nature to those enumerated." Popkin v. Security Mutual Insurance Company of New York, 48 AD2d 46, 367 NYS2d 492 [1st Dept., 1975]). Therefore, water flowing from a toilet and into the subject premises [such as here] cannot be understood to be included as an other opening' which would fall under an exclusion under the subject policy.
On the basis of the preceding, Sephardic argues that Travelers ". . . has failed to provide any conclusive proof or evidence demonstrating that a back up' constitutes water coming through the sewers and drains, regardless of its source," and/or to ". . . conclusively determine the actual cause of the water damage." In addition, Sephardic points out that an additional policy endorsement dealing with "Off Premises Services" provides for coverage for when there is loss or damage as a result of interruption to the water supply services, specifically including the water mains, which then causes a loss or damage to the subject premises. Therefore, Travelers' request for summary judgment should be denied as there are significant issues of fact to be resolved and sufficient ambiguities within the contract terms to warrant coverage in the matter sub judice.
Travelers submitted a reply affirmation, in further support of its motion for summary judgment and in opposition to Sephardic's cross-motion for such relief, wherein it's Technical Specialist (with St. Paul Travelers insurance) reiterated and clarified his deposition testimony in two ways; namely, that he knew ". . . that the back up that occurred in this case was not due to water that first went down plaintiff's pipes[;]" and, that the engineer's report clearly established that ". . . the approximately 45,300 gallons of water that entered the plaintiff's premises came from the public sewer system . . . [and] could not have come from plaintiff's own premises." Travelers also cited a series of other jurisdictional (non-New York) cases that clearly stand for the proposition that the plain and ordinary meaning of the water damage exclusion water that backs up through sewers and drains includes water containing raw sewage. Travelers also pointed to the matter of Reynolds v. Standard Fire Insurance company, 221 AD2d 616, 634 NYS2d 163 (2nd Dept., 1995), wherein the Appellate Division, Second Department allowed the subject exclusion because the insureds' loss was directly attributable to an oil tank leak which had been indirectly caused by a basement water flood. Finally, Travelers notes that its memorandum of law is clearly permissible inasmuch as Sephardic, in addition to opposing its request for summary judgment, has cross-moved for the same relief.
In its reply, Sephardic argues that the DEP supervisor indicated that there may have been multiple blockages, not limited to the water main. In addition, it reiterated its arguments that the terms water and back-up in the policy are ambiguous, and that the Power Pac Endorsement (Off Premises Services) provisions provide an alternative basis for coverage when there is an interruption in water service even where an exclusion applies.
"A party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v. Grevasioi, 81 NY2d 1062, 601 NYS2d 463; Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923). Once a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material questions of fact (see Alvarez v. Prospect Hosp., supra).
The law, as hereinabove set forth, establishes that terms in insurance policies should be given their plain, ordinary meaning by the courts ( Caporino v. Traveler's Insurance Co., supra, 62 NY2d 234, 476 NYS2d 519 (1984), and that the tests to be applied in construing an insurance policy are common speech . . . and the reasonable expectation and purpose of the ordinary businessman ( Ace Wire Cable Co., Inc. v. Aetna Casualty Surety Company, supra, 60 NY2d 390, 469 NYS2d 655 [1983]). Using those criteria, this court can find neither find a basis to conclude that the damage was caused by anything other than water inseparably mixed with raw sewage that resulted from a stoppage in the water main outside of the premises, nor can it find any unclearness in the policy language that can be reasonably interpreted in a way that affords coverage. This court therefore finds that in the instant matter, Travelers has made a prima facie showing that its exclusion applies; namely, that the stoppage in question was in pipes off the insured premises which resulted in back up therein and required the clearing of the outside city sewer main to dislodge. The absence of material facts to contradict that showing was borne out by the deposition of the owners of the premises, DEP personnel, and a retained engineer, whereas the points raised by Sephardic amount to little more than conjecture and semantics that do not persuasively raise any material issues of fact. Accordingly, Travelers' motion for summary judgment is granted and Sephardic's denied. This constitutes the decision and order of this Court.