(dissenting). Plaintiff secured from defendant-appellant its insurance policy, which contained the following paragraph: “ COVERAGE H — COMPREHENSIVE INSURANCE To pay for loss to the owned automobile [except for collision with another object or upset] but including * * * loss caused by * * * water, flood ” (emphasis supplied). An indorsement was added to said policy, and in a paragraph entitled “ COVERAGE R— $50 DEDUCTIBLE COMPREHENSIVE ”, the insurer in subdivision 3 thereof expressly agreed to “ pay for all other loss to the owned automobile [except for collision with another object or upset, and a $50 .deduction] * * * Loss caused by * * * water, flood * * * shall not be deemed loss caused by collision or upset ”. An additional premium was charged for this coverage, the total premium paid having been $94.07.
There is no qualification in the policy that the water had to be in the form of rain or in any other form; that it had to operate “ as an active agent, in moving against or falling upon the automobile ”, that the coverage embraces “ only hazards naturally associated with water’s distinctive and peculiar properties and engendered by the destructive power of water as such, as in cases of submersion, inundation or leakage ” as stated in the prevailing opinion; or that the damage had to be a “ water damage ” as stated in the dissenting opinion of the Appellate Division. There was no qualification whatever.
Courts have no right to make contracts for people, nor ivrite provisions into them. We concern ourselves “ with what the parties intended, but only to the extent that they evidenced what they intended by what they wrote ” (Raleigh Associates v. Henry, 302 N. Y. 467, 473). Here the insurance company, in the clearest language, wrote that it would “ pay for loss * * * caused by * * * water, flood ”, but, recognizing that collision could occur between this insured automobile and water, it additionally provided so as to remove all ambiguity, and without any qualification, “ Loss caused by * * * water * * * shall not be deemed loss caused by collision or upset ”. How much more plainly can language be written?
In the instant case, plaintiff, accompanied by his wife and daughter, was driving his comparatively new car from Montauk, *79Long Island, during a heavy rain. He was traveling on the right or outside lane of Eoute 39, a three-lane highway, at between 40 and 45 miles per hour and approached Southampton at about 2:30 p.m. Since it had been raining heavily all day, there was sufficient water to create a flooded condition. He saw a sign reading “ Flood area, caution.” As he turned a bend in the road, in the right lane, the right side of his car came into contact with a sheet of water 50 feet long and two thirds of a foot deep. Plaintiff tried to turn to the left, away from the flood waters, but his car pulled to the right, turned over and ended up on an embankment. It was established below that the water damaged the tie rod of plaintiff’s car, as a result of which he lost control. Plaintiff was rightfully on the highway traveling in the proper lane, well within the speed limit permitted by law, and were it not for the water which flooded the highway, he would not have suffered the damage to his automobile. Thus, since the policy expressly provides unequivocally that ‘ ‘ Loss caused by * * * water, flood * * * shall not be deemed loss caused by collision- or upset ”, I agree with the three courts below that plaintiff was entitled to recover.
Tonkin v. California Ins. Co. (294 N. Y. 326) is definitely controlling here. There plaintiff had a comprehensive insurance policy virtually identical with that in the case before us. A gust of smoke from fire under the dashboard of plaintiff’s auto caused him to lose control of the vehicle so that it collided with another car. The defendant conceded the fire damage amounting to $38, but disclaimed liability for the damage attributable to the subsequent collision in the sum of $477.30, on the ground that the latter was expressly excluded from the policy coverage. We rejected that contention, saying (p. 329): “The policy language is definite enough to exclude loss when collision is the primary and exclusive cause, and it would do so here except for the fact that fire — the hazard insured against — was the factor causing the driver to lose control of the vehicle and was so closely associated with it in point of time and character as to constitute the proximate producing cause of the collision.” (Emphasis supplied.) The proximate consequence of the precise hazard insured against was within the policy’s compass in both cases, except that it was fire in the Tonkin case (supra) and *80water in this case; both hazards caused the drivers to lose control of their cars after doing nominal damage initially — $38 in the Tonkin case, a bent tie rod in this case.
Finally, even assuming that the language employed by defendant in its insurance policy were doubtful or uncertain in its meaning (which I do not concede), the law is firmly established that all ambiguity must be resolved in favor of the policyholder and against the insurer. (Tonkin v. California Ins. Co., supra, 294 N. Y., at pp. 328-329; Hartol Products Corp. v. Prudential Ins. Co., 290 N. Y. 44, 49 [and cases therein cited]; Lachs v. Fidelity & Cas. Co. of N. Y., 306 N. Y. 357, 365-366; Royal Ins. Co. v. Martin, 192 U. S. 149, 162; Liverpool etc. Ins. Co. v. Kearney, 180 U. S. 132, 136.)
The judgment appealed from should be affirmed, with costs.
Conway, Ch. J., Desmond, Van Voorhis and Burke, JJ., concur with Fuld, J.; Froessel, J., dissents in an opinion in which Dye, J., concurs.
Judgments reversed, etc.