Simmons v Dryden Mut. Ins. Co.

[*1] Simmons v Dryden Mut. Ins. Co. 2009 NY Slip Op 50088(U) [22 Misc 3d 1111(A)] Decided on January 21, 2009 Supreme Court, Rensselaer County Lynch, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 21, 2009
Supreme Court, Rensselaer County

Marilyn Simmons f/k/a MARILYN DORING and ARTHUR DORING, Plaintiffs,

against

Dryden Mutual Insurance Company, Defendant.



216924



APPEARANCES:Ruffo Tabora Mainello & McKay P.C.

Attorneys for Plaintiffs

(Mark A. Mainello, Esq., of Counsel)

311 Great Oaks Boulevard

Albany, New York 12203

Bailey, Kelleher & Johnson, P.C.

Attorneys for Defendant

Pine West Plaza 5, Suite 507

Washington Avenue Extension

Albany, New York 12205

Michael C. Lynch, J.

Defendant has moved for summary judgment dismissing the instant action on the ground that there was no insurance coverage for plaintiffs' loss. Plaintiffs have cross-moved for summary judgment declaring that they have coverage for the loss.

Summary judgment is a drastic remedy which should only be granted when there clearly are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]). "[T]he proponent of a summary judgment motion 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 [*2]fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In order to succeed when seeking dismissal of a cause of action on a motion for summary judgment, a party must submit evidence which negates any meritorious cause of action encompassed by the pleadings (see Franceschi v Consolidated Rail Corp., 142 AD2d 915 [1988]; see also Hirsh v Bert's Bikes and Sports, 227 AD2d 956 [1996]; Wilder v Rensselaer Polytechnic Inst., 175 AD2d 534 [1991]). Once the movant has established a right to judgment as a matter of law, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). The Court will view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference (see Boyce v Vazquez, 249 AD2d 724, 726 [1998]; Simpson v Simpson, 222 AD2d 984, 986 [1995]).

The basic facts of the occurrence are uncontroverted. Plaintiffs owned a multi-family rental property in the City of Troy. They purchased insurance from defendant covering such property. On January 30, 2004 a city water main ruptured leaking very large quantities of water into the subsurface soils around plaintiff's property. The pictures submitted show that the massive amount of water caused a large area of ground to collapse into what would likely be considered by most people to constitute a sinkhole. The erosion and "sinkhole" undermined the foundation of the house causing a portion of the foundation to collapse. The water also infiltrated plaintiffs' basement causing significant water damage.

Plaintiffs had purchased an insurance policy covering the premises from the defendant. The declarations page expressly states that it is a "special multi-peril" policy, and not an "all-risk" policy. The declarations page also expressly states that coverage is subject to specific enumerated forms and endorsements. It states "SF-1 APPLIES to BLDG 1", the house. SF-1 is entitled "Causes of Loss - Coverage A and/or B." SF-1 provides insurance coverage only for losses caused by fire or lightning, removal, explosion, windstorm or hail, riot or civil commotion, aircraft, vehicles, smoke, vandalism, sinkhole collapse and volcanic action. SF-1 also contains an exclusion for water damage caused by flood, surface water, waves, tides, tidal water or overflow of a body of water, water which backs up through sewers or drains, and water below the surface of the ground pressing on or flowing or seeping through foundations or basements. Shortly after plaintiffs notified defendant of their loss, defendant disclaimed coverage on the ground that water damage was excluded by the policy.

Defendant now seeks summary judgment dismissing the action on such ground, and on the further ground that even if the exclusion were found inapplicable, the loss was not caused by any of the enumerated perils. It is noted that plaintiffs contend that there are significant general ambiguities in the insurance policy and that it should be read as an all risk policy. Plaintiffs' construction is strained and would render any insurance policy ambiguous. The Court finds that the declarations page expressly limits coverage to the enumerated perils in a clear and unambiguous manner.

With respect to the water damage disclaimer relied upon by defendant, essentially identical insurance policy language has been held to exclude only damage from natural causes, and not that caused by defective municipal water supply systems (see Novick v United Servs. Auto. Assn., 225 AD2d 676, 677 [1996]; Ender v National Fire Ins. Co. of Hartford, 169 AD2d 420, 421 [1991]). It is uncontroverted that the quantity of water which caused the damages was [*3]not a natural phenomenon. As such, defendant has not established that the exclusion is applicable.

Defendant also contends that the cause of the damage was not one of the enumerated covered perils. It appears that the only covered peril which might be applicable is "sinkhole collapse." This portion of the motion is supported by an affidavit from a certified professional geologist stating that the "sinkhole" on plaintiffs' property did not come within the policy coverage as it was not a true sinkhole. The policy defines coverage for sinkhole collapse as including "direct loss or damage caused by sudden settlement or collapse of earth supporting the covered property. The earth settlement or collapse must result from subterranean voids created by the action of water on a limestone or similar rock formation." The geologist has stated that technically, sinkholes are formed when soil or rock beneath the surface is removed by erosion or dissolving of minerals in the rock. Even though he states that a subsurface void may be created by physical removal, or erosion, as well as chemical dissolution, he concludes that the damages to plaintiffs' property were not caused by the collapse of ground associated with a karst-related sinkhole created in limestone, dolomite or similar calcareous rock which is subject to dissolution in water. He further opines that there is no limestone or other karstic or calcareous rock beneath plaintiffs' property and as such, the damages could not have been caused by settlement or collapse due to subterranean voids created by the action of water on a limestone or similar rock formation.

While such opinion may by technically correct, "[t]he court must ascertain the intent of the parties from the plain meaning of the language employed, giving terms their plain, ordinary, popular and non-technical meanings (United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232; Benderson Dev. Co. v Schwab Bros. Trucking, 64 AD2d 447, 456)." (Kula v State Farm Fire and Cas. Co., 212 AD2d 16, 19 [1995]). The language should be construed as would the average person on the street (see Boggs v Commercial Mut. Ins. Co., 220 AD2d 973, 974 [1995]; see also dissent in Tanzer v Health Ins. Plan of Greater NY, 238 AD2d 109 [1997] revd 91 NY2d 850 [1997]). The policy definition of a sinkhole collapse requires a subterranean void caused by the action of water on a limestone or similar rock formation. It does not limit covered sinkholes to natural phenomena or the action of water to chemical dissolution nor does it indicate the type of similarity which is required; that is, it does not expressly limit the rock formations to calcareous or karstic rock.

It is therefore determined that the policy is ambiguous as to coverage for sinkhole collapse. Such ambiguity must be resolved against defendant (see Boggs v Commercial Mut. Ins. Co., 220 AD2d at 974). The required similarity must be read as requiring a rock formation which is associated with subterranean voids caused by the action of water through physical erosion as well as chemical dissolution. Defendant's geologist has not offered any opinion as to where the earth that washed away went. He has not stated how deep the bedrock or other rock formations are directly beneath the subject property nor has he excluded the possibility that the water released from the city water system was sufficient to physically create a subterranean void within or upon a rock formation allowing the supporting earth to collapse into such void.

Defendant relies upon Cincinati Ins. Co. v Wiltshire, (472 So 2d 1276 [1985]) for the proposition that identical policy language required the existence of a limestone or calcareous formation to constitute a covered loss. However, the decision does not indicate that there was [*4]any expert witness evidence associating the earth collapse with a rock formation of any sort. The only rock formation referred to in the decision was 1100 feet below the surface. It is further unclear whether Florida law construes insurance policies in the same manner as New York. As such, the decision is not persuasive. Defendant has therefore failed conclusively to establish that the loss was not covered by a sinkhole collapse covered by the policy.

New York construes insurance policy coverage based upon "the most direct and obvious cause" (Kula v State Farm Fire and Cas. Co., 212 AD2d at 20) and not "the cause that originally sets other events in motion." (id.). The 11 covered perils do not include water main breaks. Even so, the water damage might be covered if it was caused by the collapse of the basement foundation (if the foundation collapse was caused by a sinkhole collapse), allowing the water to enter the building. Defendant has not offered any evidence with respect to how the water came to be in plaintiffs' basement and whether it preceded the foundation collapse or entered as a direct result of the collapse. While there is evidence that there was water in the basement prior to the obvious surface collapse of the driveway, there is no indication that the condition of the basement foundation could be observed at such time due to the presence of the water. Moreover, there is no evidence as to the mechanics or the progression of the type of earth collapse involved herein. It is certainly possible, if not likely, that the subsoils would collapse before the collapse became apparent on the surface. It is therefore determined that defendant has also failed to meet its burden of conclusively establishing the absence of merit of plaintiffs' water damage claims.

However, plaintiffs' bill of particulars indicates that plaintiffs seek recovery for damage to their driveway, lawn, trees, shrubbery and other plantings. The policy of insurance expressly states in form SF-20 under coverage that driveways, trees, plants, shrubs and lawns are not covered. Therefore defendant's motion for summary judgment dismissing the complaint shall be granted only to the extent that claims for damages to the driveway, trees, shrubs, plants and lawn shall be dismissed.

Plaintiffs have submitted an affidavit from a professional engineer with expertise in building construction, as well as subsurface structures such as water, storm and sanitary sewer lines, in support of their cross-motion for summary judgment. The expert agrees with many of the defendant's geologist's conclusions, but opines that the water acted upon bedrock rock formations, causing the subterranean voids which led to the earth collapse. However, nothing in the opinion indicates the depth of the bedrock directly beneath the plaintiffs' property. Plaintiff's witness has not shown any expertise in geology nor has he in any way excluded the possibility that there was sufficient depth of soils to allow the excess water to cause the soil to compact, settle, and sink, leading to the surface collapse. Certainly, if the collapse was not associated with a rock formation, but rather the settlement of soils, there would be no coverage. Plaintiffs' expert's affidavit fails to set forth all of the facts upon which his opinions are based and is therefore without probative value (see Romano v Stanley, 90 NY2d 444, 451 [1997]; M & E Mfg. Co. v Frank H. Reis Inc., 258 AD2d 9, 13 [1999]). Moreover, it fails to address or exclude a likely cause of the collapse and is excessively conclusory (see Hubert v Tripaldi, 307 AD2d 692 [2003]). It is therefore determined that plaintiffs have also failed to meet their burden on the instant motion.

Accordingly, defendant's motion for summary judgment is hereby granted to the limited extent indicated herein and is otherwise denied. Plaintiffs' cross-motion for summary judgment [*5]is hereby denied.

This Memorandum constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorneys for defendant. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

SO ORDERED!

ENTER.

Dated: Albany, New York_______________________________________

January, 2009Michael C. Lynch

J.S.C.

Papers Considered:

(1) Notice of Motion dated August 18, 2008;

(2) Affidavit of Michael Appel dated August 15, 2008 with exhibits annexed;

(3) Affirmation of Thomas J. Johnson, Esq. dated August 18, 2008 with exhibits annexed;

(4) Affidavit of Thomas M. Johnson dated August 18, 2008 with exhibits annexed;

(5) Notice of Cross-Motion dated September 8, 2008;

(6) Affirmation of Mark A. Mainello, Esq. dated September 8, 2008;

(7) Affidavit of Ronald A. Bova dated September 8, 2008 with exhibit annexed;

(8) Reply Affirmation of Thomas J. Johnson, Esq. dated September 19, 2008 with exhibit annexed;

(9) Affidavit of Dana Abbey dated September 18, 2008.