Trupo v. Preferred Mutual Insurance

Scudder, PJ., and Pine, J. (dissenting in part).

We respectfully dissent in part. Although we agree with the majority that the incident at the chemical plant constituted an explosion under the insurance policy issued by defendant to plaintiffs and that the alleged contamination of plaintiffs’ home was caused by that explosion, we disagree with the majority that the policy exclusion relied upon by defendant does not apply to preclude plaintiffs’ recovery under the policy. That exclusion is entitled “Wear and Tear,” and it provides that defendant will “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 cannot agree with the majority that the exclusion in question is ambiguous. Plaintiffs suffered a loss from contamination, and the policy specifically excludes loss resulting from contamination. “[U]nambiguous provisions of an insurance contract must be given their plain and ordinary meaning” (White v Continental Cas. Co., 9 NY3d 264, 267 [2007]; see *1046Kula v State Farm Fire & Cas. Co., 212 AD2d 16, 19 [1995], lv dismissed in part and denied in part 87 NY2d 953 [1996]).

The majority focuses on the title of the paragraph containing the exclusion in question and concludes that it would lead an average person to believe that the exclusion for contamination was only for contamination that occurred over time. We disagree. Rather, we apply the principle of statutory construction that titles are given little weight. “The title of a statute may be resorted to . . . only in case of ambiguity in meaning, and it may not alter or limit the effect of unambiguous language in the body of the statute itself’ (McKinney’s Cons Laws of NY, Book 1, Statutes § 123 [a]). Inasmuch as the language in the exclusion in question is unambiguous and does not limit the exclusion to contamination that occurs over time, we decline to add such limiting language. We therefore would modify the order by granting defendant’s motion for summary judgment and dismissing the complaint and by denying plaintiffs’ cross motion for summary judgment in its entirety and vacating the determination in favor of plaintiffs with respect to coverage under the insurance policy. Present—Scudder, EJ., Centra, Green, Pine and Gorski, JJ.