IQ Originals, Inc. v. Boston Old Colony Insurance

OPINION OF THE COURT

Lupiano, J.

Defendant insurer issued a policy of insurance covering “all risks of physical loss or damage to the insured property from any cause whatsoever” (emphasis supplied) to the plaintiff, a wholesaler of merchandise. The policy contains a clause limiting liability in pertinent part as follows: . “This company shall not be liable hereunder for more than A $20,000.00 in any one shipment, but not exceeding B $40,000.00 in any loss, disaster or casualty.” This limitation of liability clause was subsequently amended on consent to increase the respective “one shipment” and “loss” limitations to $60,000 each. The amended clause reads in pertinent part: “This company shall not be liable hereunder for more than: A. In any one shipment; $60,000.00 *** B. But in any loss, disaster or casualty for not *22exceeding $60,000.00.” Plaintiff’s five separate shipments of goods worth respectively $21,584; $69,135; $48,147; $39,620; and $88,095, were picked up by ESK Transportation Corp., who acting on instructions of its client Saks Fifth Avenue Corp., plaintiff’s customer; consolidated the five shipments by repacking them on one truck at its New Jersey warehouse. On October 1,1979 the truck containing these shipments was hijacked.

Defendant’s contentions to the contrary notwithstanding, it is clear that five shipments and not one shipment are involved for purposes of coverage. The limitation of liability clause is unambiguous and its construction presents a question of law. It is clear from the clause that the term “shipment” is not synonymous with the term “loss” and that while “one shipment” may be the equivalent of a “loss,” it does not necessarily follow that a “loss” is the equivalent of a “shipment”. To hold otherwise renders the limitation in respect of “any loss, disaster or casualty” mere surplusage. It is noted that utilization of capitalized letters “A” and “B” denoting the two respective areas of limitations further supports the manifest and unambiguous intent that different limits on liability are placed respecting “shipment” and “loss”. Under “B” the term “loss” is grouped with the terms “disaster” and “casualty”. This clearly evidences an “event” approach (cf. Hartford Acc. & Ind. Co. v Wesolowski, 33 NY2d 169). “Casualty” is defined in Webster’s New Collegiate Dictionary [2d ed] as, inter alia, “accident” and “an unfortunate occurrence” while “disaster” is defined as a “sudden and extraordinary misfortune”, “an event or situation regarded as a terrible misfortune” (emphasis supplied). The hijacking of the truck constituted one event or occurrence, not five separate events or occurrences. “Loss, disaster of casualty” as construed by the ordinary business person when he purchases and pays for insurance describes an event (cf. Johnson Corp. v Indemnity Ins. Co. of North Amer., 7 NY2d 222).

The circumstances delineated in the record viewed against the terms of this unambiguous insurance policy mandate the conclusion that one loss involving five shipments occurred. Accordingly, under the limitation of liability clause in the policy, plaintiff’s recovery must be limited *23to $60,000. The judgment of the Supreme Court, New York County (Ascione, J.), entered May 13, 1981, after a non-jury trial in the amount of $229,351 against the defendant should be modified, on the law, to the extent of reducing the amount of the award to $60,000 and, as so modified the judgment should be affirmed, with costs.