Court Unmoved By Earth Movement Exclusion

PROPERTY – EARTH MOVEMENT EXCLUSION – SUMMARY JUDGMENT TO INSURED – DECLARATORY JUDGMENT
Pioneer Tower Owners Assn. v. State Farm Fire & Cas. Co.
(2nd Dept., decided 5/6/2008)

Plaintiff insured moved and defendant insurer cross-moved for summary judgment based on what presumably was the policy's earth movement exclusion. In AFFIRMING the lower court's grant of summary judgment to the insured and denial to State Farm, the Second Department held:

The Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability, and denied the defendants' cross motion for summary judgment dismissing the complaint. The plaintiff met its initial burden of establishing its entitlement to judgment as a matter of law by demonstrating that the insurance policy exclusions did not clearly and unambiguously apply to the loss in this case (see Lee v State Farm Fire & Cas. Co., 32 AD3d 902; 242-44 E. 77th St., LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100, 103-104; Burack v Tower Ins. Co. of N.Y., 12 AD3d 167). In opposition, the defendants failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562).

Although this decision does not indicate or quote the particular "insurance policy exclusions" at issue in this case, the decisions cited by the court involved the earth movement and negligent work exclusions (Lee, 242-44 E. 77th St. LLC, and Burack). One or both of those exclusions presumbly formed the basis of State Farm's coverage denial to the plaintiff insured.

The parties apparently had stipulated to damages in the amount of $122,500 in the event coverage were found to exist, but the appellate court reminded that "[s]ince this is, in part, a declaratory judgment action, the Supreme Court's judgment should have included an appropriate declaration in favor of the plaintiff[.]"

May 1, 2009 -- The New York Court of Appeals unanimously affirmed this decision on April 30, 2009. Read about that decision here.