Boxer v. Commonwealth Land Title Insurance

Casey, J. (dissenting).

Implicit in the majority’s holding is its conclusion that the term "mean level” contained in the relevant exclusion has some special meaning other than its common ordinary definition. The word mean is synonymous with the word average (see, Roget’s International Thesaurus 32.3, at 16 [4th ed]; Black’s Law Dictionary 1131 [4th ed 1968]), and there is nothing in either the insurance policy or the record on appeal to suggest that some other meaning was intended by the use of the word mean as a modifier of the word level in the exclusion. It is our view that the exclusion was intended to apply to the underlying action, which is based upon the following allegations:

"6. Upon information and belief, the Dam and the Usual Depth of Barrett Pond materially benefit plaintiffs who have improved their properties and continue to improve their properties in reliance upon the continued maintenance of Barrett Pond at the Usual Depth.

"7. Upon information and belief, on or about July 17, 1990, defendants unilaterally * * * began lowering the Usual Depth of Barrett Pond by siphoning out water, and defendants continue to do so, to plaintiffs’ damage.”

The term "usual depth” is defined in the complaint in the underlying action by referring to the average depth of the pond. In our view, the underlying action falls squarely within the exclusion and, therefore, Supreme Court’s orders and judgment should be affirmed.

Levine, J., concurs. Ordered that the order entered April 2, 1991 and judgment are reversed, on the law, with costs, motion denied, cross motion granted and plaintiff awarded partial summary judgment. Ordered that the appeal from order entered May 22, 1991 is dismissed, as academic.