Utica Fire Insurance v. Gozdziak

Callahan, J.

(dissenting in part). I agree with Supreme Court that the language of the exclusionary clause is ambiguous. "[Wjhere the meaning of a policy of insurance is in doubt or is subject to more than one reasonable interpretation, all ambiguity must be resolved in favor of the policyholder and against the company which issued the policy” (Little v Blue Cross, 72 AD2d 200, 203). When an insurer wishes to exclude certain coverage from its policy obligations, it must do so in clear and unmistakable language (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311; McCarthy v New York Prop. Ins. Underwriting Assn., 158 AD2d 961, 962; Suba v State Farm Fire & Cas. Co., 114 AD2d 280, 282, lv denied 67 NY2d 610).

The exclusionary clause herein provides that coverage "does not apply to: 1. bodily injury to you, and if residents of your household, your relatives, and persons under the age of 21 in your care or in the care of your resident relatives” (emphasis added). It is unclear, however, whether the phrase, "and if residents of your household”, which is set off by commas, is intended to modify the phrases, "persons under the age of 21 in your care”, or just "relatives”. Thus, the terms of the exclusionary clause are at least ambiguous, and that ambiguity should be resolved in favor of the policyholder and against the insurer (see, Paychex, Inc. v Covenant Ins. Co., 156 AD2d 936). Because the injured infant was not a resident of the covered premises, he was not within the exclusion. (Appeals from Judgment of Supreme Court, Erie County, Wolf, Jr., J.— Declaratory Judgment.) Present — Denman, P. J., Callahan, Balio, Boomer and Boehm, JJ.