Kaminski v. Zurich Insurance

Judgment unanimously affirmed, with costs. Memorandum: Plaintiff brought an action to reform a fire insurance contract to include his name as an insured following a fire loss on the premises which he owned under a contract to purchase. The evidence at the trial of this equitable action demonstrated that the defendant insurance company, through its agent, was aware that there were two owners’ names regarding the insured premises. Plaintiff was the occupant of the insured single family dwelling at 4121 Highland Parkway and not Vern Ackerman, the named insured, from whom plaintiff Kaminski had purchased the property. The insurance company agent testified that his agency became aware before the fire loss that Ackerman was not the occupant and that their company had a policy that homeowner’s insurance be issued only in the name of the resident owner. He said the agency attempted to ascertain the name of the occupant. Ackerman testified that he gave the insurance company plaintiffs name as the resident occupant and that he spoke with a Mrs. Munchauer and gave her the spelling of plaintiffs last name. Further, the insurance company accepted the premium paid by plaintiff through the Buffalo Savings Bank escrow account prior to the fire loss. This evidence stands unrefuted in the record. Defendant did not present any proof at the trial. There was sufficient evidence of mistake on the part of the insurance company to warrant reformation of the contract. We find no question of fact raised in the record. The trial court properly directed a verdict reforming the insurance policy to designate plaintiff as the named insured and granted judgment awarding him the amount of the full policy limits for the fire loss incurred against the defendant Zurich. We find no other error in the disposition of this case. (Appeal from judgment of Erie Trial Term in action on insurance policy.) Present—Cardamone, J. P., Simons, Mahoney and Del Vecchio, JJ.