Opinion
June 7, 1993
Appeal from the Supreme Court, Kings County (Ramirez, J.).
Ordered that the order is affirmed, with costs.
The plaintiffs seek to recover the proceeds under a livestock mortality insurance policy for the death of their horse. The horse had been delivered by the plaintiffs to a trainer who, in turn, had it stabled at a certain farm. At the farm, the horse was shot and killed by the farm owner's stepson. The defendants refused to pay out on the policy on the ground that the death of the horse fell within certain exclusionary clauses of the policy. The Supreme Court granted the plaintiffs' motion for summary judgment. We affirm.
It is well-settled that whenever the provisions of an insurance contract are unclear they must be construed against the insurer. Particularly where the ambiguity is found in an exclusionary clause, the carrier has the burden to establish that the exclusion applies in the particular case (see, Slocovich v Orient Mut. Ins. Co., 108 N.Y. 56, 66; Neuwirth v. Blue Cross Blue Shield, 62 N.Y.2d 718; AFA Protective Sys. v. Atlantic Mut. Ins. Co., 157 A.D.2d 683; Vinocur's Inc. v. CNA Ins. Cos., 132 A.D.2d 543). Here, the Supreme Court properly found that the defendants failed to satisfy their burden of establishing that the horse's death was the result of either intentional slaughter by a government entity or a malicious or willful injury by an agent or employee of the horse's owner under the pertinent exclusions. Bracken, J.P., Balletta, Rosenblatt and Miller, JJ., concur.