Harris v. Allstate Insurance , 309 N.Y. 72 ( 1955 )

Fuld, J.

Driving in a heavy rainstorm, in a section where there were signs, “ Flood area, caution,” plaintiff ran into a puddle of water some 50 feet long and 8 inches deep. The right side of his car hit the water, traveling at a speed of about 45 miles an hour, and he felt the car pull to the right. He tried to steer to the left in order to stay on the highway, but the car kept pulling to the right, then mounted an embankment, turned over, and was substantially demolished.

In this action, plaintiff seeks to recover for the damage under an automobile insurance policy issued by defendant, which embraced “ loss caused by * * * water,” but excluded damage caused by “ collision ” or “ upset ” of the vehicle. More precisely, the policy proper provided — in “ Coverage H ” — that defendant insurance company would “ pay for loss to the owned automobile * * * caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion ” explicitly excluding loss occasioned by collision between it and another object or by its upset. A rider to the policy —1 ‘ Coverage E ’ ’— similarly recited that defendant would ‘ ‘ pay for all other loss to the owned automobile, except loss caused by collision between it and another object or by its upset, and except that $50 shall be deducted from the amount of each loss. Loss caused by missiles, falling objects, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset.” The term “ loss ” was defined as “ each direct and accidental loss of or damage to the automobile.”

An automobile mechanic, who examined the car after the accident, found that the tie rod controlling the steering mechanism had been bent, and he testified that such damage to the rod could have been caused by the impact of plaintiff’s speeding car with the puddle of water. The trial court denied defendant’s motion to dismiss the complaint, and instructed the jury to find for the plaintiff if it concluded that the tie rod was bent as a result of its ‘ ‘ coming in contact ’ ’ with the water and that the accident was occasioned by “ the damage to the tie rod.” Following a verdict for plaintiff for the value of the car, and successive affirmances by the Appellate Term and the Appellate Division, defendant has appealed to this court by leave of the Appellate Division.

There can be no doubt, under the evidence and the theory on which the case was submitted to the jury, that any damage to the tie rod of plaintiff’s car resulting from contact with the puddle of water was caused, not by any destructive action of the water as such, but solely by reason of the impact or collision of the fast-moving car with the body of water. There was no claim or suggestion that the water itself, as water, could have bent the tie rod. Bather, it was the force of the collision with the puddle of water, as just another tangible body or object, that brought about the accident.

The question for decision is, of course, the meaning of the policy terms embracing “ loss caused by * * * water,” in their interrelation with the provisions excluding damage resulting from ‘ ‘ collision ” or ‘ ‘ upset. ’ ’ In approaching that inquiry, account must he taken of “ the reasonable expectation and purpose of the ordinary business man ” in making the contract. (Bird v. St. Paul Fire & Marine Ins. Co., 224 N. Y. 47, 51.) The words of the policy are to be read in context, the language construed fairly and reasonably, with an eye to the object and purpose sought to be accomplished by the writing. Wise is the caution that courts are “ not to make a fortress out of the dictionary ” (Cabell v. Markham, 148 F. 2d 737, 739), for, to cull from an opinion of Mr. Justice Holmes, “ A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content ” according to the circumstances in which it is used. (Towne v. Eisner, 245 U. S. 418, 425.)

To ascribe to the concept of “ water ” damage the broad content urged by plaintiff, embracing any accident in any way traceable to water, would not only extend the coverage far beyond that contemplated by the policy, but would nullify the specific exclusion of the hazards of “ collision ” and “ upset.” In view of the much lower premium payable because of such exclusion, the insured could not reasonably have expected the coverage of the policy to extend, nevertheless,'to the peril of “ collision” with a body of water or any other body or object. It might just as well be contended that the policy protects against a collision or upset occasioned by skidding on a wet or watery road. There could, of course, be no possible basis for any such claim, and the difference between a skid and what here occurred is one simply of degree, not of kind. The only fair and reasonable interpretation is that “ loss caused by * * * water ” within the sense of this policy covers only hazards naturally associated with water’s distinctive and peculiar properties and engendered by the destructive power of water as such, as in cases of submersion, inundation or leakage.

Nor is plaintiff’s broad construction warranted by the language of “ Coverage R,” reciting that loss caused by water or any of the other specified risks 11 shall not be deemed loss caused by collision or upset.” Quite apart from the considerations noted above, the word “ water ” in that clause must be read and considered in relation to the other hazards with which it is there grouped, under the familiar principle of noscitur a sociis. (See, e. g., Aikin v. Wasson, 24 N. Y. 482, 484; Maryland Cas. Co. v. Finch, 147 F. 388, 395.) All of the other risks listed with "water ” — namely, "missiles,” “ falling objects,” “ explosion,” "earthquake,” “ windstorm,” "hail,” "flood,” "vandalism,” "riot ” and “civil commotion - represent forces that would produce damage by being propelled against, or by actively operating upon, the insured automobile. The vehicle encountering one of these hazards would thus be the object of the destructive action insured against, rather than itself an operative agency or instrumentality. In this context, then, regardless of whether it might have a broader scope in some other context, the term “ loss caused by * * * water ” must be taken to comprehend only the damaging effect of “ water ” when it operates, as an active agent, in moving against or falling upon the automobile, and not, as in the present case, when its role is merely that of an object which the vehicle itself moves against or strikes. It is in the former situation alone that the policy provision in question assumes meaning and purpose.

Our decision in Tonkin v. California Ins. Co. (294 N. Y. 326) does not call for any different result; its resemblance to the present situation is purely superficial. In that case, as plaintiff was driving along, a gust of smoke from a fire that had broken out under the dashboard of his car obscured his vision and caused him to lose control and to collide with another vehicle. Plaintiff brought suit under a policy which covered loss by fire, but excluded the hazard of collision. We held that the damage resulting from both the collision and the fire was brought about by the fire and, accordingly, came within the fire coverage of the policy.

The collision in Tonkin, though not in itself an insured peril, was, nevertheless, within the policy’s compass, since it was the proximate consequence of the precise hazard, i.e., fire, designated in the policy. Here, on the other hand, the upset of plaintiff’s car and the ensuing demolition stemmed, not from an eventuality covered by the policy, but, primarily and exclusively, from the specifically excepted peril of impact with an object which happened to be liquid. The loss is, therefore, not one for which recovery may be had under this policy. As Presiding Justice Peck, also eschewing an overly literal interpretation of the terms of the policy, aptly wrote in his dissent below, “ There was no water damage in the sense that anyone would think of water damage.”

The judgments should be reversed and the complaint dismissed, with costs in all courts.