Copr. © West 2000 No Claim to Orig. U.S. Govt. Works
671 N.Y.S.2d 66
1998 N.Y. Slip Op. 03278, 1998 N.Y. Slip Op. 03279
(Cite as: 241 A.D.2d 66, 671 N.Y.S.2d 66)
Supreme Court, Appellate Division, First
Department, New York.
THROGS NECK BAGELS, INC., etc.,
GA INSURANCE COMPANY OF NEW YORK,
And a Third-Party Action.
April 9, 1998.
Tenant operating a retail store sued its business owners' insurer for property coverage after the building was damaged in a fire which began when gasoline spilled from a tank truck after a collision in a nearby intersection and ignited. The Supreme Court, Bronx County, McKeon, J., granted summary judgment to tenant, and insurer appealed. The Supreme Court, Appellate Division, Ellerin, J., held that: (1) the fire was the efficient cause of the tenant's losses, and (2) as a matter of first impression, the policy's "ordinance or law" exclusion was not triggered by a "Peremptory Vacate Order" which a government agency directed to all occupants of the building after the fire.
 Insurance k1806
 Insurance k1813
An insurance contract is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the intent of the parties as expressed in the language employed in the policy.
 Insurance k1823
Generally, the court will construe the limitations of an insurance contract in the light of the speech of common people.
 Insurance k1832(1)
Any ambiguities in the limitations of an insurance policy will be resolved against the insurer, as drafter of the policy.
 Insurance k1817
The touchstone for interpreting insurance contracts, as with other contracts, is the reasonable expectation of the parties.
 Insurance k2143(1)
 Insurance k2165(1)
Fire which began when gasoline spilled from a tank truck after a collision and ignited was the efficient cause of losses suffered by a tenant of retail space in a nearby building damaged by the fire, which losses consisted of the tenant's costs of removing property and of making improvements that could not be removed, together with its business losses; thus, since fire was an included property hazard under the tenant's business owners' policy, coverage existed unless an exclusion applied.
 Insurance k2103(1)
In determining whether a particular loss was caused by an event covered by an insurance policy where other, non-covered events operate more closely in time or space in producing the loss, the question of whether the covered event was sufficiently proximate to the loss to require that the insurer compensate the insured will depend on whether it was the dominant and efficient cause.
 Insurance k2117
Where an insured has met its burden of showing that a valid insurance policy was in full force and effect and that it incurred a presumptively covered loss, the burden of proof shifts to the insurer to demonstrate that an exclusion contained in the policy defeats the claim.
 Insurance k2098
 Insurance k1823
To negate coverage by virtue of an exclusion, an insurer 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, and that its interpretation of the exclusion is the only construction that could fairly be placed thereon.
 Insurance k2158
"Peremptory Vacate Order" which a government agency directed to all occupants of a fire-damaged commercial building did not trigger an exclusion in one tenant's business owners' policy barring property coverage for loss or damage caused by enforcement of an ordinance or law, where the order served merely as a confirmation of the circumstances which actually caused the loss: the fact that the premises had been rendered structurally unsound and unfit for continued use as a result of the fire. **67 *67 Molly Klapper, of counsel (Weg & Myers, P.C., attorneys), for plaintiff-respondent.
Renee M. Plessner, of counsel (Arthur N. Brook, on the brief, Mound, Cotton & Wollan, attorneys), for defendant-appellant.
Before SULLIVAN, J.P., and ROSENBERGER, ELLERIN and NARDELLI, JJ. ELLERIN, Justice.
The question before us, one that does not appear to have been previously addressed by our courts, involves the scope and import of the "enforcement of ordinance or law exclusion" in a business owners' insurance policy that provides underlying coverage for losses to property due to specified perils including fire or explosion.
Plaintiff was the owner and operator of a bagel store in leased premises located in a building containing six stores at the corner of East Tremont Avenue and Bruckner Boulevard in the Bronx. On May 20, 1991, an accident between an automobile and a gasoline tank truck owned by the third-party defendant occurred at the intersection where the building was located. As a result, 1500 gallons of gasoline spilled into the street and ignited, resulting in a conflagration that caused five deaths and destroyed three of the six stores located in the building containing plaintiff's bagel shop.
The bagel shop itself and its contents, although damaged by smoke and water, were not consumed in the blaze. However, on the date of the fire, the Department of Buildings immediately issued a Peremptory Vacate Order addressed to all owners, lessees, tenants and occupants of the building directing that all persons occupying the building vacate it forthwith and until it was declared safe by the Department, under pain of fine or imprisonment, specifically noting:
This order is issued because there is IMMINENT DANGER TO THE SAFETY AND LIFE OF THE OCCUPANTS IN THAT A SECTION 50' X 871/2' HAS SUFFERED SEVERE STRUCTURAL DAMAGE AS A RESULT OF BEING STRUCK BY A GASOLINE TRUCK WHICH IGNITED A FIRE. ENTIRE ROOF STRUCTURE HAS COLLAPSED LEAVING EXTERIOR WALLS IN IMMINENT DANGER OF COLLAPSE. * *UNAFFECTED AREAS TO BE REOCCUPIED *68 UPON COMPLETION OF DEMOLITION OPERATIONS.* * (Emphasis in original)
Ten days later, plaintiff was notified by its landlord that its tenancy was being cancelled and it was ordered to immediatelyvacate the premises. [FN1]
FN1. Although the cancellation notice referred to Paragraph 9 of the lease, this appears to be an error, since that paragraph only refers to plate glass coverage. Elsewhere, in Paragraph 5, the lease did in fact provide for cancellation in the event of "substantial damage by fire or other casualty."
Plaintiff thereupon removed its equipment from the premises and ceased doing business. Plaintiff then filed a claim under the business owners' policy that had been issued by defendant insurer and which provided for coverage for losses resulting from specified perils, including fire or explosion. In its claim, plaintiff alleged loss caused by fire and its effects and sought to recover approximately $127,500 for property damage, including the actual damage caused by smoke and water, the cost of removal of other, undamaged **68 equipment, the cost of the improvements and betterments that plaintiff had made to the store and that could not be removed and $100,000 for business interruption loss, which was also specifically covered by the policy subject to certain limitations not at issue here. In response, defendant offered plaintiff the sum of $13,622.75, which, it alleged, represented the actual damage to plaintiff's stock, supplies, furniture, fixtures and equipment.
In denying the remainder of the claim, defendant relied upon the following exclusion contained in the policy:
1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.
a. Ordinance or Law
The enforcement of any ordinance or law: (1) Regulating the construction, use or repair of any property; or (2) Requiring the tearing down of any property, including the cost of removing its debris.
Plaintiff brought this action seeking recovery under the policy and defendant denied liability based solely on the *69 ordinance or law exclusion [FN2]. The parties moved for summary judgment and the IAS court granted plaintiff's motion for the relief demanded in the complaint and denied defendant's motion on the ground that the damage or loss was due to the fire and explosion resulting from the collision between the vehicle and the gasoline truck and that the ordinance or law exclusion did not apply to such sudden or unforeseen events. This appeal ensued.
FN2. Defendant did not deny liability on the ground that any part of plaintiff's loss was caused by the landlord's cancellation of its lease. Under the policy, lease cancellation, unlike the enforcement of a law or ordinance, is not a "cause" that is subject to the concurrent loss provisions, although it is subject to a limited "Business Income and Extra Expense Exclusion".
 In the absence of prior appellate authority on the precise issue before us, we look first to the general principles governing the interpretation of insurance policies. An insurance contract is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the intent of the parties as expressed in the language employed in the policy (Breed v. Insurance Co. of N. America, 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280). Generally, the court will "construe the limitations of an insurance contract in the light of the speech of common [people]" (Gittelson v. Mut. Life Ins. Co. of NY, 266 A.D. 141, 145, 41 N.Y.S.2d 478, citing Lewis v. Ocean Acc. & G. Corp., 224 N.Y. 18, 120 N.E. 56) and any ambiguities will be resolvedagainst the insurer, as drafter of the policy (Greaves v. Public Serv. Mut. Ins. Co., 5 N.Y.2d 120, 125, 181 N.Y.S.2d 489, 155 N.E.2d 390). The touchstone for interpreting insurance contracts, as with other contracts, is the reasonable expectation of the parties (Bird v. St. Paul Fire & Mar. Ins. Co., 224 N.Y. 47, 51, 120 N.E. 86).
 In accord with these fundamental principles, we first turn to the question of whether plaintiff's losses were, in the first instance, caused by a covered event, in this case fire and/or explosion, so as to bring the losses within the ambit of the policy. In determining whether a particular loss was caused by an event covered by an insurance policy where other, noncovered events operate more closely in time or space in producing the loss, the question of whether the covered event was sufficiently proximate to the loss to require that the insurer compensate the insured will depend on whether it was the dominant and efficient cause (see, Standard Oil Co. of New Jersey v. United States, 340 U.S. 54, 58, 71 S.Ct. 135, 137-138, 95 L.Ed. 68, quoting Dole v. New England Mut. Marine Ins. Co., 2 Cliff. 394, 7 Fed. Cas. 837, 853 [proximate cause "does not necessarily refer to the cause nearest in point of time to *70 the loss. But the true meaning of that maxim is, that it refers to that cause which is most nearly and essentially connected with the loss as its efficient cause"]; see also, Tonkin v. California Ins. Co., 294 N.Y. 326, 62 N.E.2d 215; Home Ins. Co. v. American Ins. Co., 147 A.D.2d 353, 354, 537 N.Y.S.2d 516 [the " 'concept of proximate cause when applied to insurance policies **69 is a limited one' ... [and] 'the causation inquiry stops at the efficient physical cause of the loss; it does not trace events back to metaphysical beginnings' "(citations omitted) ]; Granchelli v. Travelers Ins. Co., 167 A.D.2d 839, 561 N.Y.S.2d 944; Molycorp, Inc. v. Aetna Cas. & Surety Co., 78 A.D.2d 510, 431 N.Y.S.2d 824; Cresthill Ind. v. Providence Wash. Ins. Co., 53 A.D.2d 488, 498-499, 385 N.Y.S.2d 797).
Specifically in reference to fire insurance, it has been said: Loss by fire within the policy's coverage is not limited to fire damage; rather, all losses are covered which are directly, proximately, or immediately caused by a fire or combustion. In other words, the damage for which fire insurers are liable is not confined to loss by actual burning and consuming, but they are liable for all losses which are the immediate consequences of fire or burning, or for all losses of which fire is the proximate cause. This follows from the fact that the fair and reasonable interpretation of a policy of insurance against loss by fire will include within the obligation of the insurer every loss which necessarily follows from the occurrence of the fire, to the amount of the actual injury to subject of the risk, whenever that injury arises directly and immediately from the peril, or necessarily from incidental and surrounding circumstances, the operation and influence of which could not be avoided (10A Couch, Insurance 2d § 42.30).
Under these principles, and the most fundamental principle that the intent of the parties is paramount (Bird v. St. Paul Fire & Mar. Ins. Co., 224 N.Y., supra, at 51, 120 N.E. 86; Kula v. State Farm Fire & Cas. Co., 212 A.D.2d 16, 21, 628 N.Y.S.2d 988, appeal denied, appeal dismissed 87 N.Y.2d 953, 641 N.Y.S.2d 827, 664 N.E.2d 892), there is here no issue of fact that, in the first instance, the fire was the efficient cause of all the losses for which plaintiff seeks coverage in this action, i.e., the cost of removing property, the improvements that could not be removed and business losses. Such losses "necessarily follow[ed]" from the fact that the fire had taken place in the building, rendering the premises unsafe. Thus, since fire is one of the hazards for which plaintiff purchased coverage, those losses will be covered unless they are elsewhere subject to an exclusion.
 Where an insuredhas met its burden of showing that a valid insurance policy was in full force and effect and that it incurred *71 a presumptively covered loss, the burden of proof shifts to the insurer to demonstrate that an exclusion contained in the policy defeats the claim (see, Moneta Dev. Corp. v. Generali Ins. Co., 212 A.D.2d 428, 429, 622 N.Y.S.2d 930). To negate coverage by virtue of an exclusion, an insurer 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 (Continental Cas. Co. v. Rapid-American Corp., 80 N.Y.2d 640, 652, 593 N.Y.S.2d 966, 609 N.E.2d 506), and that its interpretation of the exclusion is the "only construction that [could] fairly be placed thereon" (Vinocur's Inc. v. CNA Ins. Cos., 132 A.D.2d 543, 544, 517 N.Y.S.2d 277, lv. denied 71 N.Y.2d 803, 527 N.Y.S.2d 769, 522 N.E.2d 1067, quoting American Home Assur. Co. v. Port Auth., 66 A.D.2d 269, 276, 412 N.Y.S.2d 605; see also, Sincoff v. Liberty Mut. Fire Ins. Co., 11 N.Y.2d 386, 390, 230 N.Y.S.2d 13, 183 N.E.2d 899).
 Here, defendant argues that it does not matter whether the fire was, in the first instance, the efficient cause of the losses, since the policy excludes coverage for losses caused, either directly or indirectly, by ordinance or law, and does so "regardless of any other cause or event that contributes concurrently or in any sequence to the loss." Thus, defendant argues that since plaintiff's vacatur of the premises was in immediate response to an order of the Department of Buildings, all of plaintiff's losses that stem from that vacatur were caused, at least in part, by that order.
The viability of defendant's position rests on the assumption that the order of the Department of Buildings was, in fact, a contributing cause of the loss. Defendant, however, has failed to meet its burden of establishing that such was the case. In reality, **70 the order served merely as a confirmation of the circumstances regarding the actual cause of the loss, i.e., the fact that the premises had been rendered structurally unsound and unfit for continued use as a result of the fire. (Authorities in other jurisdictions on this point are instructive. See, e.g., DiGravina v. Merchants Mutual Ins. Co., 1991 WL 90737 [S.D.N.Y.]; Norfolk & Dedham Mutual Fire Ins. Co. v. deMarta, 799 F.Supp. 33, 36 [E.D.Pa.], affd. 993 F.2d 225 [3d Cir.]; Frontis v. Milwaukee Ins. Co., 156 Conn. 492, 500, 242 A.2d 749, 753; cf., Feinbloom v. Camden Fire Ins. Assn., 54 N.J.Super. 541, 149 A.2d 616, lv. denied 30 N.J. 154, 152 A.2d 172.) It cannot logically be claimed that plaintiff would not have vacated a building rendered structurally unsound but for an order from the Department of Buildings. On the contrary, when the order was served, the need to vacate the premises and all the immediate and consequential losses stemming from *72 the fire and explosion, both direct and indirect, had already been "caused".
To construe the exclusion in the manner urged by defendant insurer would be to render the underlying coverage nugatory in a host of cases where it would reasonably be expected to apply. The Department of Buildings or other governmental agency could be expected to frequently issue various orders and decrees in response to the consequences of any catastrophic event affecting public safety, and an insurer could avoid coverage by simply claiming that such an order was one of the "causes" of the loss. Indeed, to apply defendant's interpretation here would mean that even if plaintiff's store had been one of those that had been completely destroyed by the fire, defendant could have declined coverage on the identical ground that the issuance of the vacate order was a concurrent "cause" of the loss. To hold that the law or ordinance exclusion applies under circumstances such as here present would be an unreasonable construction that would frustrate the underlying purpose of the policy.
Since we find that the order of the Department of Buildings was not a cause of the loss here, we need not reach the argument, relied upon by the motion court, that the law or ordinance exclusion applies only to losses caused by governmental orders issued as a result of deterioration discovered upon regular inspection and does not apply to losses caused by governmental orders occasioned by sudden or catastrophic events (see, Danzeisen v. Selective Ins. Co. of America, 298 N.J.Super. 383, 689 A.2d 798). Such a distinction would be of particular import where, unlike the vacate order at issue here, a governmental decree issued after a catastrophic loss actually did contribute to an insured's losses, such as where an order issued after a fire or other catastrophe required repairs or rebuilding to be performed in accordance with new building codes resulting in higher costs than simple replacement would have required (id.).
Accordingly, the order of the Supreme Court, Bronx County (Douglas McKeon, J.), entered June 18, 1996, which granted plaintiff's motion for summary judgment and denied defendant's crossmotion for summary judgment on the issue of liability, should be affirmed, without costs.
Order, Supreme Court, Bronx County, entered June 18, 1996, affirmed, without costs or disbursements.
SULLIVAN, J.P., and ROSENBERGER and NARDELLI, JJ., concur.