Harrington v. Amiga Mutual Insurance

223 A.D.2d 222, 645 N.Y.S.2d 221
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 12, 1996
StatusPublished
Cited by27 cases

This text of 223 A.D.2d 222 (Harrington v. Amiga Mutual Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harrington v. Amiga Mutual Insurance, 223 A.D.2d 222, 645 N.Y.S.2d 221 (N.Y. Ct. App. 1996).

Opinions

OPINION OF THE COURT

Wesley, J.

This case presents an issue of first impression in New York, whether the replacement cost provisions of a homeowner’s insurance policy require an insured to rebuild his home before he can recover on a claim for that cost. We hold that they do.

I

The essential facts are not in dispute. In February 1977 plaintiff, Alan M. Harrington, purchased a home at 3610 Oran Delphi Road in the Town of Pompey. Plaintiff purchased insurance for the property from defendant, Arnica Mutual Insurance Company, which he kept in force through February 1992.

The replacement cost provisions of the policy require that defendant

"pay the cost to repair or replace [the building], after application of deductible and without deduction for depreciation, but not more than the least of the following amounts:

"(a) the limit of liability under this policy that applies to the building;

"(b) the replacement cost of that part of the building damaged for like construction and use on the same premises; or

"(c) the necessary amount actually spent to repair or replace the damaged building.”

The policy further provides that defendant would pay no more than the actual cash value of the damage unless "actual repair or replacement [was] complete”, or the cost to repair or replace the damage was both less than 5% of the amount of insurance and less than $1,000.

On November 30, 1991, a fire totally destroyed plaintiff’s home. Plaintiff notified defendant of the fire the next day and contracted with National Fire Adjustment Company to negotiate a settlement with defendant.

[224]*224In a letter dated February 14, 1992, defendant estimated plaintiffs total replacement cost at $104,963.16. The estimate included $5,775 for debris removal. Defendant stated in the letter that it would pay no more than the actual cash value of the damages until the actual repair or replacement was complete, and assigned an actual cash value of 70% of the loss, or $73,474.21. Plaintiff does not contest the actual cash value figure.

Prior to his receipt of defendant’s estimate of the replacement cost, plaintiff entered into a land contract with Walter Lindow for the sale of the premises. The sale price was $22,500, payable over five years. In the contract, Lindow acknowledged that he was aware of the condition of the property, that he would maintain fire and liability insurance, and that he would bear any risk of loss. Although Lindow was allowed to enter into possession of the premises on March 1, 1992, delivery of the deed would not occur until after the final installment was paid. If Lindow defaulted on the agreement, plaintiff would be entitled to regain possession and to retain all payments previously made. Plaintiff also had the right to retain any improvements made by Lindow as liquidated damages for a default. After Lindow and his wife took possession of the premises, they rebuilt the dwelling, completing work by early 1993.

Plaintiff never advised defendant that he had entered into the land contract, that the Lindows had possession of the premises, and that the Lindows were making the improvements to the property. Defendant first learned of the sale after arranging for final inspection of the repairs. The Lindows informed defendant that plaintiff had not made the repairs, and plaintiff admitted at his deposition that he had not paid for the repairs.

By letter dated April 13, 1993, defendant notified plaintiff that it would not pay him anything more than the actual cash value that it had previously paid, because plaintiff had not paid for replacement of the dwelling. Plaintiff commenced this action seeking the $31,488.95 retained by defendant, asserting causes of action for breach of contract, negligent misrepresentation, promissory estoppel and unjust enrichment.

Plaintiff moved for summary judgment on the causes of action for breach of contract, promissory estoppel and unjust enrichment. Plaintiff argued that nothing in the policy required him to perform the repairs himself in order to receive the entire replacement cost. He argued that his interpretation of the policy is reasonable, and that he had relied on that interpretation in entering into the land contract with Lindow.

[225]*225Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint. Defendant argued that estoppel does not apply because plaintiff had entered into the land contract before defendant issued its estimate of the replacement cost and had concealed the existence of the land contract from defendant. Defendant reiterated its position that it had fulfilled its obligations under the policy by paying plaintiff the actual cash value of the property, and asserted that plaintiff was not entitled to any additional replacement cost coverage because he had sustained no pecuniary loss in connection with the replacement of the dwelling by the Lindows.

Supreme Court denied the motion and granted the cross motion, relying on Paluszek v Safeco Ins. Co. (164 Ill App 3d 511, 517 NE2d 565). Plaintiff appeals.

II

In Paluszek v Safeco Ins. Co. (supra), the insurer, relying upon a similar insurance policy provision, paid the plaintiff and her then husband (the Coxes) the actual cash value of the dwelling. The next month, the Coxes sold their home in "as is” condition without any repairs having been made. Thereafter, they commenced an action for the additional cost of repairs. The insurer subsequently learned that the home had been repaired by the purchaser.

The Illinois appellate court held that the insurer was entitled to summary judgment dismissing the complaint, even though the insurance policy did not specify who was to make the repairs (Paluszek v Safeco Ins. Co., 164 Ill App 3d, supra, at 515-516, 517 NE2d, supra, at 567-568). The court noted that the fundamental purpose of insurance coverage is to indemnify the insured for an actual loss. The court held that, when the insurer paid the insureds the actual cash value of the house, the insurer had paid all that it was obligated to pay until the repairs were completed, and that the insurer had fulfilled its obligation for the loss that the insureds had suffered (Paluszek v Safeco Ins. Co., 164 Ill App 3d, supra, at 516, 517 NE2d, supra, at 568). Another court, relying on Paluszek, has reached the same result (see, Athena Rest. v Sheffield Ins. Co., 681 F Supp 561).

Similarly, in cases where no repairs were done, courts have held that the measure of a plaintiff’s damages is the actual cash value, not the replacement cost (see, e.g., Hess v North Pac. Ins. Co., 122 Wash 2d 180, 859 P2d 586; Harbor House [226]*226Condominium Assn. v Massachusetts Bay Ins. Co., 915 F2d 316, 320; Higginbotham v American Family Ins. Co., 143 Ill App 3d 398, 493 NE2d 373; National Tea Co. v Commerce & Indus. Ins. Co., 119 Ill App 3d 195, 456 NE2d 206; Huggins v Hanover Ins. Co., 423 So 2d 147, 150 [Ala]; see also, Ferrara v Insurance Co. of N. Am., 135 AD2d 366, 368-369; Annotation, Construction and Effect of Property Insurance Provision Permitting Recovery of Replacement Cost of Property, 1 ALR5th 817, §§ 12-14; 15 Couch, Insurance 2d § 54:148 [rev ed]; cf., Zaitchick v American Motorists Ins. Co., 554 F Supp 209, 217, affd

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Bluebook (online)
223 A.D.2d 222, 645 N.Y.S.2d 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrington-v-amiga-mutual-insurance-nyappdiv-1996.