Lane v. Security Mutual Insurance

—Order insofar as appealed from reversed on the law without costs and motion denied. Memorandum: In March 1997 plaintiffs home was destroyed by fire. Defendant insurer disclaimed coverage under plaintiffs homeowner’s policy because the fire was allegedly set by plaintiffs 17-year-old son. Plaintiff commenced this action seeking declaratory relief and damages. Supreme Court erred in granting plaintiffs motion for partial summary judgment on the first cause of action and declaring that the loss is covered under the policy. The policy is a contract (see, Reed v Federal Ins. Co., 71 NY2d 581, 588), and its unambiguous terms should be given effect (see, Allstate Ins. Co. v Mugavero, 79 NY2d 153, 164). The policy defines “insured” to include “any * * * person under the age of 21 in your care or in the care of your resident relatives”. The policy excludes from coverage losses resulting from intentional acts committed by “an insured”. Plaintiff conceded for purposes of her motion that the fire was intentionally set by her son who lives in her home. Thus, plaintiffs son is “an insured” under the policy, and the loss is not covered (see, Branch v Chenango Mut. Ins. Co. [appeal No. 2], 225 AD2d 1079; see also, Allstate Ins. Co. v Mugavero, supra, at 164). We reject plaintiffs contention that any policy of fire insurance that excludes from coverage losses resulting from intentional acts committed by “an insured”, as opposed to “the insured”, violates Insurance Law § 3404 (f) (1) (A) by providing significantly less coverage than the standard fire insurance [1101] policy set forth in Insurance Law § 3404 (e). The standard policy is silent with respect to such an exclusion, and it does not define the term “insured”. “The extent of the application of insurance under [the standard] policy * * * and any other provision or agreement not inconsistent with the provisions of this policy, may be provided for in writing added hereto” (standard policy, lines 42-47). Defendant insurer complied with this provision, and its policy form was approved by the Superintendent of Insurance pursuant to Insurance Law § 2307 (b) and § 3404 (f) (1) (see, Matter of Liberty Mut. Ins. Co. [Hogan], 82 NY2d 57, 61). Plaintiff further contends that, because she is the sole owner of the insured residence, she is the only person with an insurable interest and her son’s wrongdoing may not be imputed to her. Proof that the son is not an owner, however, is not conclusive on whether he has an insurable interest. The statutory definition of “insurable interest” is broad (see, Insurance Law § 3401) and liberally construed (see, Scarola v Insurance Co., 31 NY2d 411, 413). “A legal or equitable interest in the property insured is not necessary to support an insurable interest” (Weissman v Galway Constr. Corp., 239 AD2d 410, 411). In any event, because the son resides with plaintiff, he has an insurable interest in the property (see, Ellis v New York Cent. Mut. Fire Ins. Co., 226 AD2d 1131; Kradjian v American Mfrs. Mut. Ins. Co., 206 AD2d 801, 803). Finally, we note that “[o]nly the insurer can raise the objection of want of insurable interest” (68A NY Jur 2d, Insurance, § 936, at 626). All concur except Hayes and Pigott, Jr., JJ., who dissent and vote to affirm in the following Memorandum.