Trupo v. Preferred Mutual Insurance

Appeal and cross appeal from an order of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.), entered January 7, 2008 in a breach of contract action. The order denied defendant’s motion for summary judgment and granted in part and denied in part plaintiffs’ cross motion for summary judgment. It is hereby ordered that the order so appealed from is affirmed without costs. Memorandum: Plaintiffs commenced this action seeking a determination that defendant is obligated to provide coverage for damage to their home and personal property pursuant to the terms of the insurance policy issued by defendant to them. Plaintiffs’ home was allegedly damaged when approximately 75 gallons of a chemical mixture were released into the atmosphere from a nearby plant operated by the former Diaz Chemical Corporation. Supreme Court denied defendant’s motion for summary judgment dismissing the complaint and granted in part plaintiffs’ cross motion for summary judgment, determining that the insurance policy in question covers damages caused by or arising from the explosion. The court denied that part of plaintiffs’ cross motion for damages in the amount of approximately $144,000, and instead ordered that a hearing on damages would be conducted. We affirm. The policy issued by defendant provided coverage for “direct physical loss” caused by certain perils, including explosion. We agree with plaintiffs that the incident at the chemical plant constitutes an explosion under the policy and that the alleged contamination of their home was caused by that explosion. We [1045] further agree with plaintiffs that the exclusion relied upon by defendant, entitled “Wear and Tear,” does not apply to this case. Pursuant to that exclusion, defendant would “not pay for loss which results from wear and tear, marring, deterioration, inherent vice, latent defect, mechanical breakdown, rust, wet or dry rot, corrosion, mold, contamination or smog” (emphasis added). We reject defendant’s contention that, because the damage to plaintiffs’ home arises out of pollution or contamination, the exclusion for “Wear and Tear” applies. Rather, we conclude that the exclusion in question is ambiguous and thus should be construed in favor of plaintiffs, the insureds (see generally White v Continental Cas. Co., 9 NY3d 264, 267 [2007]; Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377, 383 [2003]). The title “Wear and Tear” would lead an average person to believe that the exclusion for “contamination” therein included only contamination that occurred over time, rather than a sudden occurrence such as the incident here. We have considered defendant’s remaining contentions and conclude that they are without merit. Contrary to the contention of plaintiffs on their cross appeal, the court properly denied that part of their cross motion for summary judgment on damages inasmuch as there are triable issues of fact with respect thereto (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). All concur except Scudder, PJ., and Pine, J., who dissent in part and vote to modify in accordance with the following memorandum