Summary
In Purpura, the Appellate Division of the Supreme Court of New York concluded that "change of temperature" could "reasonably refer to changes in weather."
Summary of this case from Old Town Canoe Company v. Continental Casualty CompanyOpinion
October 11, 1988
Appeal from the Supreme Court, Suffolk County (Doyle, J.).
Ordered that the order is affirmed, with costs.
In March 1985 the plaintiff Philip Purpura acquired an insurance policy from the defendants covering his business, Halesite Harbour Delicatessen Caterers. The policy, entitled "Business Account Policy-Broad Form", contains, under the heading "Perils Not Insured", the following exclusions:
"We will not pay for loss caused by, resulting from, contributed to or aggravated by any of the following * * *
"4. Windstorm, frost, hail, ice, sleet, growth failure or disease to lawns, trees, shrubs or plants. * * *
"10. Contamination, dampness of atmosphere, change of temperature, corrosion or rust" (emphasis added).
On September 27, 1985, as a result of Hurricane Gloria, a power failure occurred and continued for three days. Consequently, the plaintiff suffered the loss of perishable foods contained on the premises in the amount of $12,000. The plaintiff informed the defendants of the loss and sought to recover under the insurance policy. The defendants thereafter disclaimed coverage, asserting that the claimed loss was a result of a specifically enumerated peril not insured. The Supreme Court, Suffolk County, agreed with the insurers' denial of coverage, rejecting the plaintiff's claim that the "change of temperature" exclusion applied purely to atmospheric conditions or, at the very least, was ambiguous and, as such, should be resolved in favor of coverage. We affirm, but for a different reason.
The law is clear that before an insurance company will be permitted to avoid policy coverage by virtue of an exclusion contained within its policy, the exclusion must be stated "in clear and unmistakable" language (Kratzenstein v Western Assur. Co., 116 N.Y. 54, 59) and the insurer must establish that the exclusion applies in the particular case and that it is subject to no other reasonable interpretation (Seaboard Sur. Co. v Gillette Co., 64 N.Y.2d 304, 311).
We find the "change of temperature" exclusion contained in the policy at bar to be ambiguous since, read in context, and according it the meaning "`which would be given it by the average man'" (Stainless, Inc. v Employers Fire Ins. Co., 69 A.D.2d 27, 33, affd 49 N.Y.2d 924, quoting from Berkowitz v New York Life Ins. Co., 256 App. Div. 324, 326), it may reasonably refer to changes in the weather (cf., Kuo v Home Ins. Co., 117 A.D.2d 320; Fawcett House v Great Cent. Ins. Co., 280 Minn. 325, 159 N.W.2d 268; Michigan Sugar Co. v Employers Mut. Liab. Ins. Co., 107 Mich. App. 9, 308 N.W.2d 684), which was not the cause of the loss suffered at bar.
The defendants were, nevertheless, properly permitted to avoid policy coverage by also asserting the denial of coverage under the exclusion in the policy for losses "caused by, resulting from, contributed to or aggravated by * * * [a w]indstorm" (see, 10A Couch, Insurance 2d § 42:346, at 455). Mangano, J.P., Bracken, Spatt and Harwood, JJ., concur.