Monday, February 4, 2019

The Polar Vortex and Reasonable Care to Maintain Heat

Wasn't it the under-apple-tree-sitting Sir Isaac Newton who first said that what goes down must come up?  (Physics wasn't my thing in high school.)  In addition to being a mathematician, physicist, astronomer, theologian, author and pome fruit lover, I understand that Sir Isaac provided expert cause of loss evaluation services to insurance companies1 in the late 17th and early 18th centuries.

Had I opened my law office in, let's say, Florida, I wouldn't be getting calls like the one I got yesterday.  With air temperatures having risen back into the guess-I-no-longer-have-an-excuse-not-to-shovel-my-walkway-and-sidewalk range, water that had gone from liquid to solid state in enclosed hollow metal cylinders (aka pipes) is moving back into its liquid state.  And hence, the resulting freezing/water losses.  And associated coverage questions.

Homes that are vacant, unoccupied or under construction are generally not covered for freezing losses unless their owners have used reasonable care to either maintain heat or shut off the home's water supply and drain the pipes.  A typical homeowners policy provision provides:


A. Coverage A – Dwelling And Coverage B – Other Structures

     1. We insure against risk of direct physical loss to property described in Coverages A and B.

     2. We do not insure, however, for loss:

          c. Caused by:
     (1) Freezing of a plumbing, heating, air conditioning or automatic fire protective sprinkler system or of a household appliance, or by discharge, leakage or overflow from within the system or appliance caused by freezing. This provision does not apply if you have used reasonable care to:
                    (a) Maintain heat in the building; or
                    (b) Shut off the water supply and drain all systems and appliances of water.

Mom goes into a nursing home, the 'rents are snowbirding in Florida, or the tenants recently moved out.  Or the seasonal home in the Adirondacks is shuttered for the winter.  If the water is not shut off and the pipes drained, what constitutes "reasonable care to maintain heat"?  In a "normal" New York winter?  During the polar vortex?

Is "reasonable care to maintain heat" during winter in New York the same as "reasonable care to maintain heat" during winter in Minnesota?  Probably not, because the care required is "to maintain heat" and the reasonableness of an insured's conduct in that regard is measured and determined by the particular circumstances and conditions in which the vacant or unoccupied home and its plumbing system find themselves.  Maintaining heat to keep water pipes from freezing in a home in Minnesota in the wintertime requires greater care (and more fuel) than doing so in New York.  Right?

(Fun fact:  there are 10 reported state and federal court cases in New York on the question of what constitutes "reasonable care to maintain heat" in a vacant or unoccupied structure but only 1 reported case in Minnesota.  Someone please explain that to me.  I would have bet the under.)

For those dealing with insurance losses or claims from frozen pipes in New York, here's a survey of the 10 reported New York cases, in reverse chronological order:

>> Philadelphia Indem Ins. v. Adirondack Ins.Exch. (Sup. Ct., NY Co., 6/20/18)

Condo unit loss.
Summary judgment to property's insurer.

This was an action to collect on a default judgment Philadelphia, a condominium complex's insurer, had obtained against the owner of a vacant condo unit in which pipes froze and burst, causing water damage to the complex.  Adirondack insured the unit owner.

Adirondack denied liability coverage to its insured because, as she had moved out of and no longer resided in the unit prior to the loss, the premises did not meet the policy's definition of "residence premises" (defined as "the unit where you reside as shown as the `residence premises' in the Declarations").

In granting Adirondack's cross motion for summary judgment and dismissing the complaint, Supreme Court agreed that the unit did not meet the policy's definition of "residence premises" and noted with respect to first-party property coverage:
In any event, even if defendant's policy was in effect at the time of the incident, frozen pipe bursts caused by owner's failure to properly drain and maintain heat are specifically excluded from coverage (Def. Exh. 1 — Policy Form SH 23 25 01 06 at 1, §1(2)(c)). The record shows that Iglupas did not use reasonable care to maintain heat in the building or shut off the water supply, as indicated by the lack of gas usage on the utility bill. Therefore, the relevant policy would not apply to this loss.
>> Stephenson v. Allstate Indem. Co. (3rd Dept., 4/19/18, lv. to appeal denied 9/13/18)

Personal residence/homeowners loss.
Summary judgment to insurer.

I previously blogged about this case here.  Read that post for more details.  As I said in there, in affirming summary judgment to Allstate the Third Department held:
We conclude that decedent failed to use reasonable care, as a matter of law, to maintain heat in the premises while it was unoccupied for three months during the winter heating season, because it is undisputed that she did not arrange for inspection of the premises or take any other action to ensure that adequate levels of heat were actually maintained during that time period[.]
Adequate to do what? Keep the water pipes from freezing.

The facts that supported summary judgment in this case were:
  • the Binghamton, NY home was unoccupied for three months during the wintertime;
  • the home's water supply had not been shut off;
  • the plumbing system had not been drained; 
  • the insured had made no arrangements to have the home inspected while she was gone; and
  • an expert opined that the home's natural gas consumption was insufficient to maintain a level of heat adequate to prevent freezing of the plumbing system.

>> Read Prop. Grp., LLC v. Hamilton Ins. Co. (EDNY, 3/30/18)

Rental property loss.
Summary judgment to the insurer.

In January 2016 a bathroom pipe froze and burst at one of plaintiff's 362 residential rental properties insured by Hamilton.  The policy's Protective Safeguards--Heat Maintained endorsement required that heat be maintained at an "ambient temperature of not less than 50 degrees Fahrenheit at all times throughout any building identified in the Schedule by use of a gas-fired, coal-fired, electric or similar heating system."  Hamilton's investigation of the reported loss revealed that the water pipes had frozen and burst due to the failure of both furnaces in the house.  Heating bills disclosed in discovery showed zero gas usage for November and December 2015.

In opposition to Hamilton's motion and support of its own cross motion for summary judgment plaintiff argued: (1) that the word "maintain" in the endorsement is undefined and ambiguous; (2) Hamilton's interpretation of the endorsement/exclusion is against public policy; and (3) the undisputed facts showed that plaintiff took reasonable steps to maintain the heat in the premises.

The District Court GRANTED Hamilton's motion for summary judgment, dismissing the complaint, finding:
  • that the word "maintain" as used in the policy is not ambiguous ("it is thus plain that any insured reading the first part of the Endorsement—particularly a sophisticated business seeking to insure 362 properties, such as the plaintiff—would understand the following to impose an absolute obligation to ensure that the temperature in the insured premises is always at or above 50 degrees Fahrenheit if the policy is to provide coverage for certain kinds of losses");

  • the endorsement is not contrary to public policy ("Moreover, even if it were appropriate to consider abstract notions of fairness rather than the specific policies established by the state legislature, there is nothing fundamentally unfair in enforcing the contract as written. Plaintiff is a sophisticated organization that purchased a policy of insurance to cover 362 properties, some of which were vacant.");

  •  plaintiff did not maintain the ambient temperature in the residence at at least 50 degrees Fahrenheit; water does not freeze if the ambient temperature is 50 degrees or higher ("Defendant's evidence that pipes cannot freeze if the temperature in the building is at or above fifty degrees Fahrenheit is undisputed.")
Note that this is not a "reasonable care to maintain heat" but a "maintain an ambient temperature of not less than" case.

>> Brennor v. Metropolitan Prop.  & Cas. Ins. (Sup. Ct., Westchester Co., 5/12/14)

Rental property loss.
Summary judgment to insurer.

Plaintiff owned rental property.  Tenants moved out in February 2009 and plaintiff has the gas and electric utilities account transferred to her.  In March 2009 plaintiff received a letter from the utility company requesting a deposit.  Beginning that month, each gas and electric bills threatened to terminate the service if the deposit is not paid.  Plaintiff never paid the deposit but did pay the monthly utility service charges.  In January 2010, the utility company terminated the gas and electric service to the premises, which caused the pipes to freeze. Metropolitan denied coverage, citing plaintiff's failure to use reasonable care to maintain heat.

In granting Metropolitan's motion for summary judgment, Supreme Court reasoned:
In opposition, plaintiff contends that she did not believe that Con Edison would turn off the gas and electric service because she was paying her monthly bills and Con Edison had not terminated the service for 10 months. Based on this, plaintiff contends that a "jury may deem reasonable [plaintiff's] belief that Con Edison would not turn off the service at any time because of her refusal to pay the security deposit because of Con Edison's course of conduct during the period of close to 10 months."

Plaintiff has failed to raise a triable issue of fact. The subject policy excludes coverage for damage caused by freezing of a plumbing system, unless plaintiff has used reasonable care to maintain heat at the Premises. While it is true that the resolution of whether a party's actions are "reasonable" frequently presents a triable issue of fact, that is not always the case (see, e.g., MacWhinnie v Nugent, 28 AD3d 431, 432 [2d Dept 2006]; Schuster v Amboy Bus Co., Inc., 267 AD2d 448, 449 [2d Dept 1999]). This is not a case where there is an issue as to whether plaintiff knew that the power might be terminated (see McCabe v Allstate Ins. Co., 260 AD2d 850, 852 [3d Dept 1999]) or where there is an issue as to whether plaintiff thought s/he had done everything necessary to restore the power (see Billitier v Merrimack Mut. Fire Ins. Co., 777 F Supp 2d 488, 491 [WDNY 2011]) or where there is an issue as to whether the damage was in fact caused by the freezing of the plumbing system (see Farrell v. American Intern. Ins. Co., 2010 WL 2517240 (Sup Ct, NY County 2010). Here, the question of whether plaintiff used reasonable care to maintain the heat at the Premises does not depend on triable issues of fact. Plaintiff was repeatedly warned that Con Edison would terminate the gas and electric service if she did not pay a certain amount of money. Plaintiff did not contact Con Edison to dispute or even address the amount that was supposedly due. Instead, plaintiff simply did not pay the amount that Con Edison claimed was due, notwithstanding Con Edison's repeated threats to terminate the gas and electric service. As a matter of law, plaintiff failed to use reasonable care to maintain heat at the Premises.
You can file this decision in the no shit, Sherlock, folder.

>> Leone v. State Farm Fire & Cas. Co. (Sup. Ct., Suffolk Co., 9/4/13)

Personal residence/homeowners loss.
Question of fact found; summary judgment to insurer denied.

The insured residence was a home the plaintiffs had purchased more than three years before the loss but had not yet moved into. The insureds claimed that they intended to renovate it and make it their primary residence, sometimes staying overnight in the home during the renovation process.  Mr. Leone testified that they had started the process of moving furniture into the subject property and that they stayed there as much as time permitted. He further testified that the temperature in the house was kept at 65 degrees to 68 degrees and that the heat was always on.

The insureds purchased the home in 2006, insured it with State Farm under a homeowners policy at the end of November 2009, and reported a frozen/burst water pipe loss to State Farm in January 2010, claiming $175,000 in damages.

State Farm retained a licensed engineer (not named Sir Isaac Newton, see Footnote 1 below) to investigate and determine the cause of property damage to the home.  The engineer opined that a shower cap valve had frozen and burst due to a failure to maintain adequate heat within the building during a period of subfreezing weather.  The engineer based his opinion on weather and utility records and his calculations of heating output within the home.

The primary issue in this case was residency, on which Supreme Court ruled there were triable questions of fact.  In denying summary judgment to State Farm and on the issue of whether the insureds had used reasonable care to maintain heat, Supreme Court held:
Finally, a question of fact exists as to whether plaintiffs used reasonable care to maintain heat in the subject property, as both plaintiffs testified that the heat was always on in the house, and Mr. Leone specifically testified that the temperature of the house remained at 65 degrees to 68 degrees at all times.
>> Billitier v. Merrimack Mut. Ins. Co. (WDNY, 4/18/11)

Rental property loss.
Question of fact found; summary judgment to insurer denied.

Tenants of plaintiff vacated the insured property in early December 2007 and disconnected their utility service.  Plaintiff inspected the property within days of his former tenants' departure and discovered that the utilities had been disconnected.  He allegedly called the utility company right away and requested that power be restored.  He testified that a representation of the utility company assured him that power would be restored within "a couple of days" or within "a matter of days," or by "the week of [December] 9th."

On December 12th a service call to restore power was unsuccessfully attempted at the property, but  plaintiff was not present and that keys to the property, which plaintiff had previously provided to the utility company for access, allegedly did not work.  Plaintiff disputed that he had been told he would need to be at the property for power to be restored, and the utility company allegedly did not notify plaintiff that power had not been restored.

Plaintiff testified that in late December and early January, he made about two trips to inspect that Property's exterior to ensure that it remained in good condition for eventual sale or rental to new tenants, and noticed nothing unusual. In mid-January, he accompanied friends on an out-of-town golfing trip, and was unable to visit or inspect the property for approximately two weeks.  On or around January 24, 2008, plaintiff again visited the property, and discovered extensive water damage. While the precise timing of the ruptured pipes at the property is unclear, it was believed to have occurred sometime between plaintiff's physical inspection of the property's interior after his tenants left in or around the first week of December 2007, and his discovery of the water damage on or about January 24, 2008.

In finding triable questions of fact and DENYING summary judgment to Merrimack, the District Court held:
Here, I find that summary judgment would be inappropriate, because resolution of whether Billitier used "reasonable care" under the circumstances presented and within the meaning of the Policy exclusion does depend on triable issues of fact. It would be inappropriate for the Court, on this record, to rule as a matter of law that plaintiff failed to exercise reasonable care to maintain heat at the Property. Assessing whether "reasonable care" was taken necessarily includes a fact-intensive analysis of, among other things, the parties' credibility, the extent of RG & E's representations or instructions to Billitier, Billitier's actions to ensure the provision and continuation of electric service to the Property when it was unoccupied, the reasonableness of Billitier's reliance on RG & E's statements in connection with the request for power restoration, the impact of RG & E's failure to ever notify Billitier that it had been unable to restore service, and the reasonableness of Billitier's decision not to drain the plumbing or provide for an interim heat source, viewed in light of prevailing weather conditions in December 2007, which are alleged to have been unseasonably warm. Resolution of such material questions of fact is best reserved for the jury.
>> Farrell v. American Intl. Ins. Co. (Sup. Ct., Suffolk Co., 5/31/10)

Guest cottage loss.
Question of fact found; summary judgment to insurer denied.

On February 12, 2007, plaintiffs brother-in-law, discovered a burst hot water pipe supplying the washing machine in a vacant and unoccupied guest cottage on plaintiff's property.  The brother-in-law claimed he would be at the cottage frequently because he stored stored machinery and equipment for his business there and had not noticed anything unusual about the temperature in the cottage the day he discovered the burst pipe and water loss.  He also claimed that the thermostat was always set at 55 degrees.

A plumber retained by the plaintiff reported that the water pipe had frozen and burst open "like a clam."  A mechanical engineer hired by the insurer to inspect and opine on the cause of the burst pipe reported that the cottage was in "deplorable condition", had windows missing panes of glass on the first floor, some of which were adjacent to the hot water pipe at issue, and showed signs of exposure to high humidity and low temperatures for far longer than the time between February 12, 2010, and the date of his inspection.  The engineer's analysis of plaintiff's utility bills concluded that "there was literally no heat in the cottage for most of" the six-month period ending in mid-January.

Twenty-eight months after the incident, through her public adjuster, plaintiff submitted a contractor's "Water Damage, Mold Remediation, Building Repair Estimate" for $486,412.84 that included "new cedar shingle siding and gutters, new chandeliers, new windows, new kitchen cabinetry, a refrigerator, dish washer, freestanding range, new gas lines for the entire house, and over $100,000 for water extraction and remediation."  The parties disputed whether the extensive mold growth throughout the cottage was due to the February 2007 burst pipe/water loss or the insured's failure to take appropriate remedial measures.

Supreme Court denied summary judgment to AIIC on its failure to mitigate and mold exclusion coverage defenses.  As to AIIC's defense that the plaintiff failed to use reasonable care to maintain heat in the cottage, in denying summary judgment to AIIC on that ground, as well, the court held:
In this case the plain meaning of the policy provision quoted above required the insured to use "reasonable care" to maintain heat in the premises, in order for coverage to be available in the case of water freezing in a plumbing system. Defendant AIIC has presented a prima facie case that the cottage was vacant or unoccupied for many months before the incident, very little heat was used in the cottage in early 2007, and the temperatures were cold enough to cause freezing. There is also testimony that a frozen pipe that bursts has the appearance, as the pipe allegedly did here, of a "clam" (Plumber Leotta) or a "fishmouth" (Engineer Levine)." 
The burden then shifts to plaintiff to raise a triable issue of fact. Plaintiff's engineer denies that the pipe burst because it froze, because the pipe at issue did not abut an exterior wall and he derides the Mpemba effect as "an old wives tale"(Rosner affidavit, par. 16). Plaintiff's engineer further argues that, based on the utility bills, the heating system continued to function and produce a reasonable amount of heat up until the time it stopped running as a result of water infiltration (Rosner affidavit, par. 18). 
Plaintiff's plumber opines that is "highly unlikely that a freeze up would occur to a pipe adjacent to an interior wall when no other pipe, especially those that are adjacent to exterior walls, froze also" (Zinnia affidavit, par 11). The plumber continues, that "it is much more likely that there was an original leak that occurred unrelated to the temperature" and that when a large quantity of water accumulated in the basement, it caused the heating unit to shut down (Zinnia affidavit, par. 14). 
Mr. Seib insists that he was in and out of the cottage frequently (Seib affidavit par. 5), and never noticed a temperature drop or broken windows (Seib affidavit, par. 15-16). According to Mr. Seib, the temperature in the cottage was maintained at 55 degrees (Seib affidavit, par. 10). Mr. Seib also testified that when he first discovered the water leaking from the pipe, he got his pliers and used them to pinch the copper tubing to reduce the water flow to a trickle (Seib transcript, p. 40). In reviewing heating bills plaintiff testifies that he never saw any indication that gas was not being consumed or that the heat was not being maintained (Farrell affidavit, par. 6). 
On this record, plaintiff has raised a triable issue of fact as to whether he used "reasonable care" to maintain heat in the cottage [McCabe v Allstate Ins. Co., 260 AD2d 850 (3rd Dept. 1999)]. This is a matter for the jury.
You probably saw some videos this past week suggesting that there may be some validity to the Mpemba effect--folks throwing boiling water into the sub-zero air of Michigan or other polar-vortexed places.

>> Landsman v. Dryden Mut. Ins. Co. (Sup. Ct., Broome Co., 12/8/09)

Rental property loss.
Judgment after non-jury trial to insurer.

I previously blogged about this case here.  You can read that post for more details and commentary.

Plaintiff, a New York City attorney, bought and rented a farmhouse to tenants in Hancock, New York, near Binghamton.  The tenants fell behind on their rent and plaintiff commenced eviction proceedings against them in November 2004.  On January 23, 2005, one of the tenants called and left plaintiff a voice message indicating that there was a problem with the furnace.  On January 30, 2005 plaintiff traveled from New York City to check on the property.  He saw some personal property within the property on that day and the next but did not go inside.  Upon returning to New York City on January 31, 2005 he found a telephone message waiting for him from the property's utility company advising that they had turned off the power to the property that day for nonpayment.  Despite that notification, plaintiff did nothing to reestablish power to the property until it was again rented to tenants.  When heat and power were reinstated by the new tenants in mid-February, multiple leaking pipes were discovered.  Plaintiff made a claim for the damage to Dryden Mutual, the property's insurer.

Supreme Court denied Dryden Mutual's motion for summary judgment on the freezing peril defense and the action proceeded to a non-jury trial.  This decision is the court's verdict.  In finding in favor of Dryden Mutual and dismissing the complaint, the court concluded:
The next question is whether defendant properly found that plaintiff did not use "reasonable care to maintain heat in the residence or to shut off all water and to completely drain the system and domestic appliances". Again, the facts elicited at trial answer the question. As noted hereinabove, plaintiff knew on January 31, 2005, in the dead of an upstate New York winter, that there was no heat or electric utility to the Property and did not return to the Property that day or the next. In and of itself, the court finds this knowledge on behalf of plaintiff to be a basis for concluding that plaintiff did not use reasonable care to maintain heat in the Property. Plaintiff's argument that he could not access the Property because Curry and Colwell had until February 4, 2005 to vacate is unpersuasive. As noted above, there was no reasonable basis for plaintiff to believe that Curry and Colwell were in the Property since they had never finalized the settlement agreement and were not present at the Property on either January 30 or 31, 2005. 
Consequently, the court finds that once NYSEG had shut off the heat as of January 31, 2005, plaintiff knew or should have known that he should return to the Property without delay to make sure that the heat and utilities were reinstated or to drain the pipes and other plumbing fixtures. Moreover, the court finds that a reasonable landlord in plaintiff's position would have entered the premises on January 30 or 31, 2005 under the provision of the lease permitting inspections. The court finds that plaintiff's failure to do so is unreasonable when faced with this winter scenario. Quite simply, plaintiff's failure to act in this situation was the equivalent of ignoring the obvious and burying one's head in the sand. Finally, what the court found most telling was plaintiff's own testimony when explaining why he did not return to Hancock after he received the call from NYSEG on January 31, 2005 which was as follows: 
Q: You didn't make arrangements to go have NYSEG turn it [the power] on. 
A: I did. They said no — I said, put it on in my name. 
Q: They said we'll do it if you are there to let us in. And you wouldn't drive up there to let them in. 
A: I was just there. (Trial Transcript, pp 39-40). 
Based on the credible evidence and documentary proof submitted, the court is satisfied that defendant has met their burden of proof that the Property was vacant and unoccupied at the time of this loss and that plaintiff failed to use reasonable care to maintain heat in the residence or to shut off all water and to completely drain the system and domestic appliances.
>> Gallo v. Midstate Mut. Ins. Co. (4th Dept., 11/23/07)

Rental property loss.
Summary judgment to insured.

in AFFIRMING Supreme Court's grant of partial summary judgment on liability to plaintiff and denial of summary judgment to Midstate Mutual, the Fourth Department held:
Inasmuch as it is undisputed that plaintiff's loss was the direct result of the freezing of water pipes in the insured property, the loss is covered by the "Perils Section" of the policy. That section includes the peril of "Freezing of a plumbing ... system" even if the property is vacant, so long as the insured "has used reasonable care to ... maintain heat in the building," and, here, plaintiff established as a matter of law that he used reasonable care to maintain heat in the building. In support of his motion, plaintiff submitted the deposition testimony of his property manager, who testified that, in late December 2004, he restored electric power to the building himself by removing certain tabs in the electric meter. Plaintiff also submitted the deposition testimony of the property manager's rental agent, who testified that, on January 22, 2005, the electricity was on and the furnace blower was operating properly to heat the building. 
In opposition to the motion, defendant submitted Rochester Gas & Electric (RG & E) records indicating that RG & E had "no record of electric service being delivered to [the property] between December 21, 2004 and May 4, 2005." That evidence, however, is insufficient to raise an issue of fact whether plaintiff's property manager took reasonable care to maintain heat in the building at the time the plumbing system froze, between January 22, 2005 and January 24, 2005. We note that defendant's contention that the act of plaintiff's property manager in restoring electricity to the building himself cannot, as a matter of law, constitute reasonable care to maintain heat because such act constitutes theft of services is raised for the first time on appeal and thus is not properly before us (see Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]). 
We thus conclude that plaintiff's loss is specifically covered under the policy, and we further conclude that the exclusions relied on by defendant under paragraph 15 of the "Perils Section," "Accidental Discharge or Overflow of Liquids or Steam from a plumbing ... system," do not unambiguously apply in this case (see generally Seaboard Sur. Co., 64 NY2d at 311; Oot v Home Ins. Co. of Ind., 244 AD2d 62, 70-71 [1998]).
And who says crime doesn't pay?

>> McCabe v. Allstate. Ins. Co. (3rd Dept., 4/15/99)

Seasonal/vacation home loss.
Question of fact found; summary judgment to insurer denied.

Plaintiffs, residents of Virginia, owned a vacation home in upstate New York, which suffered substantial damage as the result of frozen pipes in the winter of 1996. In 1991, plaintiffs orally contracted with a heating oil company for automatic fuel oil delivery service. Pursuant to the agreement, the heating oil company made periodic oil deliveries to plaintiffs' home until December 1994, at which time the heating oil company claimed plaintiffs terminated the service. Plaintiffs denied terminating the arrangement. In March 1996, plaintiffs discovered that their home had suffered approximately $43,500 in plumbing and water damage caused by frozen and bursting pipes after the heating system's fuel tank ran dry. Allstate denied coverage and plaintiffs sued both Allstate and the heating oil company.

In affirming Supreme Court's denial of the defendants' motions for summary judgment, the Third Department held:
We next review Allstate's contention that it was entitled to summary judgment due to the following loss exclusion: "Freezing of plumbing, fire protective sprinkler systems, heating or air conditioning systems or household appliances, or discharge, leakage or overflow from within the systems or appliances caused by freezing, while the building structure is vacant, unoccupied or being constructed unless you have used reasonable care to: (a) maintain heat in the building structure; or (b) shut off the water supply and drain the system and appliances." We find plaintiffs' assertion that their house was not "unoccupied" in light of their continuing, albeit seasonal use of the premises, to be unavailing. Inasmuch as plaintiffs' primary residence was in Virginia and they concede that no one resided at or visited the house in Edinburg from September 1995 until March 1996, their claim falls squarely within the exclusion provision. This Court has previously determined that use of the word "unoccupied" in an insurance policy carries its ordinarily accepted meaning and that "[i]t is the regular presence of inhabitants that makes occupancy" (Coutu v Exchange Ins. Co., 174 AD2d 241, 244; see, Page v Nationwide Mut. Fire Ins. Co., 15 AD2d 306, 306-307). 
Therefore, the salient issue is whether plaintiffs took reasonable measures to maintain heat in the structure during their absence. Allstate claims that merely arranging for automatic fuel oil service does not constitute reasonable care within the meaning of the policy exclusion. Additionally, Northville alleges that the contract for fuel delivery was terminated at the end of 1994 which, if true, would establish the lack of reasonable care in this case if no other measures were taken. Plaintiffs, on the other hand, argue that the automatic fuel oil delivery contract remained in effect since they did not request its termination and was sufficient to satisfy their duty of maintaining heat in the house. In light of the question of fact which exists with respect to the status of the fuel oil delivery contract, we conclude that Supreme Court's denial of plaintiffs' and Allstate's respective summary judgment motions was proper.

For those keeping score, the property insurers batted .500 on their not-reasonable-care-to-maintain-heat defenses in these 10 cases.  Summary judgment was denied as often as it was granted.  If one studies the cases and their facts, their outcomes turned on what the property owners knew about heat within the vacant or unoccupied structures and what they did or did not do to maintain that heat during periods when the state of water within enclosed hollow cylinders can turn from liquid to solid.

If you've made it down this far in this post, you must be interested in this type of loss/claim.  To follow new New York federal and state court decisions on this issue, create your own Google Scholar alert like I did by clicking here.  If my gmail email address auto-populates the form, change it to your preferred email.  Or if you want to follow this issue in all federal and state courts, click here to create your Google Scholar alert.  For why you should be using Google Scholar, read my August 30, 2015 post.

1. According to Wikipedia:

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