Weichert v Allstate Ins. Co.

[*1] Weichert v Allstate Ins. Co. 2009 NY Slip Op 51999(U) [25 Misc 3d 1207(A)] Decided on April 1, 2009 Supreme Court, Onondaga County Paris, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 1, 2009
Supreme Court, Onondaga County

Cyrus Weichert and Melissa Weichert, Plaintiffs,

against

Allstate Insurance Company and Allstate Indemnity Company, Defendants.



2006-4429



Appearances:

For Plaintiffs:

Walter D. Kogut, Esq.

For Defendants:

Smith, Sovik, Kendrick & Sugnet, P.C.,

Ann Magnarelli Alexander, Esq.,

of Counsel

Anthony J. Paris, J.

Commencing in 2000, Defendants issued through their agent, BONNIE HARROD, certain insurance policies insuring Plaintiffs' property located at 1160 North Road, Tully, New York. The latest such policy which is the subject of this action was Defendant's Deluxe Policy issued on September 17, 2002.

On or about June 23, 2005, while the Deluxe Policy number 903320230 was in effect, a fire occurred damaging and/or destroying the detached storage building/pole barn situated on Plaintiffs' property, and its contents.

When the first policy was issued to Plaintiffs in 2000, MS. HARROD related to MR. WEICHERT that the pole barn was not covered and wrote him a policy through another carrier specifically insuring that structure. A commission was received from both carriers by MS. HARROD and/or her agency. When the fire loss was incurred, Plaintiffs duly reported said loss to Defendants who denied coverage for the structure under this policy but did pay for the [*2]contents. Plaintiffs did secure payment for a portion of the loss of the pole barn through the other policy, but said policy did not cover the full value of the loss.

Subsequently while adjusting the fire loss, Plaintiffs discovered what appears to be coverage or the lack of an exclusion from coverage for the storage building/pole barn under the subject policy and seek recovery for the balance of their loss in the approximate amount of $45,281.00 plus interest from the date of loss.

Subsequent to the joinder of issue, pretrial discovery was conducted and Plaintiffs now move for summary judgment pursuant to CPLR 3212. Defendants oppose said motion and have cross moved for summary judgment dismissing Plaintiffs' complaint.

In their motion for summary judgment, Plaintiffs contend that despite what MS. HARROD may have related to MR. WEICHERT, the terms of the policy are clear and unambiguous in that the pole barn is a covered structure and was not excluded from coverage by any specific endorsement to the policy that Defendants issued to them and for which they paid a premium.

In their opposition to Plaintiffs' motion and in support of their cross motion, Defendants contend that as MS. HARROD advised MR. WEICHERT that the storage building was not covered, there is no coverage despite what the policy provides or does not specifically exclude. Defendants further contend that a specific policy exclusion, in this case endorsement AP 54, is not really necessary and it is not their practice to have the insured sign the AP 54.

In a motion for summary judgment, the initial burden of proof is on the moving party to come forth with evidence in admissible form to show entitlement to judgment as a matter of law. The burden of proof next shifts to the non-moving party to likewise come forth with evidence in admissible form to show an issue of fact so as to avoid summary judgment. In such motions, the Court must view the evidence so submitted in the light most favorable to the non-moving party. ZUCKERMAN v. CITY OF NEW YORK, 49 NY2d 557(1980).

Plaintiffs have met their initial burden; however, Defendants have not met their shifting burden even when the evidence is viewed in the light most favorable to them. Consequently, Defendants have not met their initial burden on their cross motion.

In reviewing insurance policies vis-a-vis motions for summary judgment, Professor Samuel Donnelly instructs that there are two rules to follow:

First: Read the policy.

Second: Read the policy again.

It appears that the Court of Appeals agrees with Professor Donnelly as it has held in TAG 380, LLC v. COMMET 380, INC., 10 NY3d 507 (2008), that it is for the Court to determine the parties' rights and obligations under an insurance policy based on the specific language of the policy.

To negate coverage pursuant to an exclusion, a carrier must establish that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case. Policy exclusions are to be narrowly construed and any ambiguity must be resolved against the insurer. BELT PAINTING CORP. v. TIG INSURANCE COMPANY, 100 NY2d 377 (2003).

Also, in construing an endorsement to an insurance policy, the endorsement and the policy must be read together, and the words of the policy remain in full force and effect except as [*3]altered by the words of the endorsement. COUNTY OF COLUMBIA v. CONTINENTAL INSURANCE COMPANY, 83 NY2d 618 (1994).

In this particular case, it is impossible for the policy and the endorsement to be read together as the endorsement AP 54 which allegedly excluded the pole barn from coverage was never attached to the policy or presented to Plaintiffs. Furthermore, when a copy of AP 54 was requested, all that Defendants could produce was a blank form without any entries describing the structure or evidencing a signature by either Plaintiff. Also, the policy provides for "other structures" protected in the amount of forty-one thousand nine hundred seventy-two dollars ($41,972.00).

Therefore, the policy language commands and it clearly and unambiguously states that under Coverage B at Page six of the policy that structures at Plaintiffs' address separated by clear space are covered.

The Court notes that the only other structure on Plaintiffs' property separated by clear space is the pole barn. The Court further notes that pursuant to CPLR 3123 Defendants have admitted that the policy and endorsements in Plaintiffs' Exhibit L are the policy endorsements that are the subject of this action. The AP 54 endorsement is not contained therein.

Where the language of the policy is clear and unambiguous, parole and extrinsic evidence may not be considered. STATE OF NEW YORK v. HOME INDEMNITY COMPANY, 66 NY2d 669 (1985); KENNEDY v. VALLEY FORGE INSURANCE COMPANY, 203 AD2d 930 (4th Dept., 1994).

Even if the Court went "outside the box" and considered evidence extrinsic to the policy, what can be considered?

How about the deposition testimony of MR. HUDSON, Defendants' adjustor, with twenty-four (24) years of experience, who testified that AP 54 is used to exclude structures otherwise covered. So if AP 54 is not issued, then, there is coverage. Also, if AP 54 is not filled in and addressed to a particular structure, there is coverage.

How about the deposition testimony of MR. BEALE, who never found nor could secure AP 54 from the Company and was never given an explanation as to why it could not be located. Most likely because it did not exist.

How about MS. GLEASON'S testimony, the Defendants' supervisor, who denied coverage because the Company computer told her to do so. Sounds a little like the teleprompter thing that Rush talks about.

And let's not forget the testimony of MS. HARROD who told Plaintiff, CYRUS WEICHERT, that the pole barn was not covered because of size and intended use, but never secured information regarding size or intended use, and collected a double commission, one from Defendants and one from the other carrier who duplicated coverage.

In addition, MS. HARROD testified that she never read the policies that she wrote for plaintiffs in 2000 or 2002. Had she done so, she would have realized that there was coverage under the policies, specifically, Coverage B.

Defendants cannot defeat Plaintiffs' motion for summary judgment on the mere allegation that there was no coverage because MS. HARROD said so, especially when the language of the policy specifically provides for such coverage.

The fact that she was in error and caused Plaintiffs to pay a double premium cannot [*4]be held against Plaintiffs who relied on Defendants' agent's mistaken statements. Fortunately for Defendants, Plaintiffs had another policy that covered part of the loss to the pole barn and only seek excess or secondary coverage.

If an insured cannot recover when he or she does not read the policy and alleges that the agent told the insured there was coverage that's not in the language of the policy, how can an insurance company avoid coverage by saying its agent told the insured there wasn't coverage when the agent did not read the policy that specifically contains coverage and does not exclude such coverage. What the policy says is what the policy means; and the Court will cite the case of GOOSE v. GANDER, at 19 AJP 814.

Therefore, by reason of the foregoing, Plaintiffs' motion for summary judgment is GRANTED and Defendants' cross motion is DENIED.

ANTHONY J. PARIS

J.S.C.

DATED: April 1, 2009

Syracuse, New York