Weissman v. Employers Insurance of Wausau , 60 A.D.2d 855 ( 1978 )

In an action on” an insurance policy, defendant Employers Insurance of Wausau appeals from an interlocutory judgment of the Supreme Court, Nassau County, entered June 9, 1977, which, after a trial limited to the issue of liability only, is in favor of plaintiffs, upon a directed verdict. Interlocutory judgment affirmed, with costs. On the record adduced at the trial, it was proper to hold that no issues of fact were raised to be submitted to the jury. The uncontradicted evidence established that the loss to the plaintiffs-respondents’ property resulted from a loose coupling from an underground pipe which was part of the plaintiffs’ plumbing system. There can be no reasonable dispute that the coincidental rainfall was not an efficient or significant contributory cause of the loss. The risk of water leakage was expressly insured against by paragraph 16 of the policy section entitled "Perils Insured Against”. The lost property was properly held to come within "Coverage A” of the policy, which refers to building equipment, fixtures and outdoor equipment. While a retaining wall is abstractly structural in nature, in the context of the insurance policy, it is apparent that it should be included in "Coverage A”. The policy includes retaining walls with such items as fences, awnings, patios, cesspools and septic tanks, after the more general term of outdoor equipment. In addition, loss of trees and shrubs are included in "Coverage A”. These factors indicate that retaining walls were intended to be insured under "Coverage A”. To the extent that there is some ambiguity on this issue, the policy should be liberally construed in favor of coverage (cf. Miller v Continental Ins. Co., 40 NY2d 675; Cantanucci v Reliance Ins. Co., 43 AD2d 622, affd 35 NY2d 890). Latham, J. P., Damiani, Cohalan and Hawkins, JJ., concur.