22-3142-cv Lee v. Union Mut. Fire Ins. Co.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of October, two thousand twenty-three. Present: PIERRE N. LEVAL, SUSAN L. CARNEY, WILLIAM J. NARDINI, Circuit Judges.
_____________________________________ FRED LEE, ANN LEE, Plaintiffs-Appellees, v. 22-3142-cv UNION MUTUAL FIRE INSURANCE COMPANY, Defendant-Appellant. 1 _____________________________________
For Plaintiffs-Appellees: TODD D. KREMIN, Greenblatt Agulnick Kremin P.C., Melville, N.Y.
For Defendant-Appellant: BRIAN D. BARNAS (Eric T. Boron, Agnieszka Wilewicz, on the brief), Hurwitz Fine P.C., Buffalo, N.Y.
1 The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
1 Appeal from a judgment of the United States District Court for the Eastern District of New
York (Margo K. Brodie, Chief Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Union Mutual Fire Insurance Company (“Union Mutual”) appeals
from a judgment of the United States District Court for the Eastern District of New York (Margo
K. Brodie, Chief Judge), entered on December 1, 2022. Plaintiffs-Appellees Fred Lee and Ann
Lee (the “Lees”) sued Union Mutual for breach of contract and deceptive business practices under
New York General Business Law § 349, claiming that Union Mutual, the provider of a commercial
property insurance policy for the Lees, wrongfully denied coverage for fire damage to their
property. The district court granted summary judgment in favor of the Lees on the breach of
contract claim and in favor of Union Mutual on the deceptive business practices claim. See Lee v.
Union Mut. Fire Ins. Co., No. 20-CV-3191, 2022 WL 3370086, at *8–10 (E.D.N.Y. Aug. 16,
2022). This appeal followed. We assume the parties’ familiarity with the case.
“We review a district court’s decision to grant summary judgment de novo, construing the
evidence in the light most favorable to the party against which summary judgment was granted
and drawing all reasonable inferences in its favor.” Harris v. Miller, 818 F.3d 49, 57 (2d Cir.
2016). 2 Affirmance is warranted “only if there is no genuine issue of material fact and the
prevailing party was entitled to judgment as a matter of law,” and summary judgment “must be
2 Unless otherwise indicated, case quotations omit all internal quotation marks, alteration marks, footnotes, and citations.
2 rejected if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id.
Union Mutual challenges the district court’s ruling on the breach of contract claim. At the
core of that claim is a question on the application for the commercial property insurance policy at
issue, which asked “How many apartment units are there?” App’x at 978. The Lees answered
that their property had two apartment units. In so answering, they excluded the property’s finished
basement from their count. Union Mutual deemed this answer to be a material misrepresentation
because, in its view, the finished basement was an apartment unit, and therefore the property had
a total of three apartment units. On the basis of this purported misrepresentation, Union Mutual
denied coverage under and rescinded the commercial property insurance policy. In determining
whether Union Mutual breached its contract with the Lees, the district court concluded that the
application question regarding the number of units was ambiguous; that a “reasonable person” in
the Lees’ position could have interpreted the question as they did, namely, that the question
“refer[red] only to units that are either occupied or could legally be occupied as apartments”; and
that therefore, Union Mutual could not deny coverage and rescind the policy based on the Lees’
response to that question. Lee, 2022 WL 3370086, at *7–8.
“Under New York law, an insurer may rescind an insurance policy if it was issued in
reliance on material misrepresentations.” Fid. & Guar. Ins. Underwriters, Inc. v. Jasam Realty
Corp., 540 F.3d 133, 139 (2d Cir. 2008). “A misrepresentation in an application for insurance is
defined as a false statement as to past or present fact, made to the insurer by, or by the authority
of, the applicant for insurance or the prospective insured, at or before the making of the insurance
contract as an inducement to the making thereof.” Id. (quoting N.Y. Ins. Law § 3105(a)).
However, “[a]n answer to an ambiguous question on an application for insurance cannot be the
3 basis of a claim of misrepresentation by the insurance company against its insured where . . . a
reasonable person in the insured’s position could rationally have interpreted the question as he or
she did.” Dam Props. Holding Corp. v. Union Mut. Fire Ins. Co., 177 N.Y.S.3d 626, 627 (2d
Dep’t 2022).
The threshold question of whether a provision in an insurance policy is ambiguous is a
“question of law to be determined by the court.” Parks Real Est. Purchasing Grp. v. St. Paul Fire
& Marine Ins. Co., 472 F.3d 33, 42 (2d Cir. 2006). “Insurance contracts must be interpreted
according to common speech and consistent with the reasonable expectation of the average
insured.” Dean v. Tower Ins. Co. of N.Y., 19 N.Y.3d 704, 708 (2012). A provision is ambiguous
if it is “susceptible of two reasonable interpretations.” Concordia Gen. Contracting Co. v.
Preferred Mut. Ins. Co., 46 N.Y.S.3d 146, 148 (2d Dep’t 2017). “The policy must . . . be construed
in favor of the insured, and ambiguities, if any, are to be resolved in the insured’s favor and against
the insurer. But where the provisions of a policy are clear and unambiguous, they must be given
their plain and ordinary meaning, and courts should refrain from rewriting the agreement.” 10012
Holdings, Inc. v. Sentinel Ins. Co., 21 F.4th 216, 220 (2d Cir. 2021) (quoting U.S. Fid. & Guar.
Co. v. Annunziata, 67 N.Y.2d 229, 232 (1986)).
Union Mutual first argues that the district court erred in finding that the question regarding
the number of units was ambiguous. We disagree. The application for the insurance policy does
not define “apartment units” and the context of the application does not clarify the question. When
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22-3142-cv Lee v. Union Mut. Fire Ins. Co.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of October, two thousand twenty-three. Present: PIERRE N. LEVAL, SUSAN L. CARNEY, WILLIAM J. NARDINI, Circuit Judges.
_____________________________________ FRED LEE, ANN LEE, Plaintiffs-Appellees, v. 22-3142-cv UNION MUTUAL FIRE INSURANCE COMPANY, Defendant-Appellant. 1 _____________________________________
For Plaintiffs-Appellees: TODD D. KREMIN, Greenblatt Agulnick Kremin P.C., Melville, N.Y.
For Defendant-Appellant: BRIAN D. BARNAS (Eric T. Boron, Agnieszka Wilewicz, on the brief), Hurwitz Fine P.C., Buffalo, N.Y.
1 The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
1 Appeal from a judgment of the United States District Court for the Eastern District of New
York (Margo K. Brodie, Chief Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Union Mutual Fire Insurance Company (“Union Mutual”) appeals
from a judgment of the United States District Court for the Eastern District of New York (Margo
K. Brodie, Chief Judge), entered on December 1, 2022. Plaintiffs-Appellees Fred Lee and Ann
Lee (the “Lees”) sued Union Mutual for breach of contract and deceptive business practices under
New York General Business Law § 349, claiming that Union Mutual, the provider of a commercial
property insurance policy for the Lees, wrongfully denied coverage for fire damage to their
property. The district court granted summary judgment in favor of the Lees on the breach of
contract claim and in favor of Union Mutual on the deceptive business practices claim. See Lee v.
Union Mut. Fire Ins. Co., No. 20-CV-3191, 2022 WL 3370086, at *8–10 (E.D.N.Y. Aug. 16,
2022). This appeal followed. We assume the parties’ familiarity with the case.
“We review a district court’s decision to grant summary judgment de novo, construing the
evidence in the light most favorable to the party against which summary judgment was granted
and drawing all reasonable inferences in its favor.” Harris v. Miller, 818 F.3d 49, 57 (2d Cir.
2016). 2 Affirmance is warranted “only if there is no genuine issue of material fact and the
prevailing party was entitled to judgment as a matter of law,” and summary judgment “must be
2 Unless otherwise indicated, case quotations omit all internal quotation marks, alteration marks, footnotes, and citations.
2 rejected if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id.
Union Mutual challenges the district court’s ruling on the breach of contract claim. At the
core of that claim is a question on the application for the commercial property insurance policy at
issue, which asked “How many apartment units are there?” App’x at 978. The Lees answered
that their property had two apartment units. In so answering, they excluded the property’s finished
basement from their count. Union Mutual deemed this answer to be a material misrepresentation
because, in its view, the finished basement was an apartment unit, and therefore the property had
a total of three apartment units. On the basis of this purported misrepresentation, Union Mutual
denied coverage under and rescinded the commercial property insurance policy. In determining
whether Union Mutual breached its contract with the Lees, the district court concluded that the
application question regarding the number of units was ambiguous; that a “reasonable person” in
the Lees’ position could have interpreted the question as they did, namely, that the question
“refer[red] only to units that are either occupied or could legally be occupied as apartments”; and
that therefore, Union Mutual could not deny coverage and rescind the policy based on the Lees’
response to that question. Lee, 2022 WL 3370086, at *7–8.
“Under New York law, an insurer may rescind an insurance policy if it was issued in
reliance on material misrepresentations.” Fid. & Guar. Ins. Underwriters, Inc. v. Jasam Realty
Corp., 540 F.3d 133, 139 (2d Cir. 2008). “A misrepresentation in an application for insurance is
defined as a false statement as to past or present fact, made to the insurer by, or by the authority
of, the applicant for insurance or the prospective insured, at or before the making of the insurance
contract as an inducement to the making thereof.” Id. (quoting N.Y. Ins. Law § 3105(a)).
However, “[a]n answer to an ambiguous question on an application for insurance cannot be the
3 basis of a claim of misrepresentation by the insurance company against its insured where . . . a
reasonable person in the insured’s position could rationally have interpreted the question as he or
she did.” Dam Props. Holding Corp. v. Union Mut. Fire Ins. Co., 177 N.Y.S.3d 626, 627 (2d
Dep’t 2022).
The threshold question of whether a provision in an insurance policy is ambiguous is a
“question of law to be determined by the court.” Parks Real Est. Purchasing Grp. v. St. Paul Fire
& Marine Ins. Co., 472 F.3d 33, 42 (2d Cir. 2006). “Insurance contracts must be interpreted
according to common speech and consistent with the reasonable expectation of the average
insured.” Dean v. Tower Ins. Co. of N.Y., 19 N.Y.3d 704, 708 (2012). A provision is ambiguous
if it is “susceptible of two reasonable interpretations.” Concordia Gen. Contracting Co. v.
Preferred Mut. Ins. Co., 46 N.Y.S.3d 146, 148 (2d Dep’t 2017). “The policy must . . . be construed
in favor of the insured, and ambiguities, if any, are to be resolved in the insured’s favor and against
the insurer. But where the provisions of a policy are clear and unambiguous, they must be given
their plain and ordinary meaning, and courts should refrain from rewriting the agreement.” 10012
Holdings, Inc. v. Sentinel Ins. Co., 21 F.4th 216, 220 (2d Cir. 2021) (quoting U.S. Fid. & Guar.
Co. v. Annunziata, 67 N.Y.2d 229, 232 (1986)).
Union Mutual first argues that the district court erred in finding that the question regarding
the number of units was ambiguous. We disagree. The application for the insurance policy does
not define “apartment units” and the context of the application does not clarify the question. When
the question is viewed “according to common speech,” Dean, 19 N.Y.3d at 708, we find that the
question is readily susceptible to more than one reasonable meaning. For example, the question
could refer to the number of (i) spaces that legally could be occupied as apartments, as defined by
the applicable regulations, and therefore could be rented out as apartments; or (ii) spaces with the
4 minimum structural configuration necessary for an apartment, which includes a full bathroom,
kitchen, bedroom, and a separate entryway. The first possibility is particularly plausible here in
the context of a commercial real estate policy, where the space in question had never been used as
an apartment and could not lawfully be rented as an apartment. In such circumstances, the question
might reasonably be interpreted to ask how many apartment units could be lawfully rented in
commerce. The district court therefore properly found that the question regarding the number of
units was ambiguous.
Union Mutual contends, however, that under New York law, a question regarding the
number of units unambiguously refers to the “structural configuration of [the] building[] to be
insured,” App’t Br. at 37, or, in other words, the number of spaces in the building with “its own
kitchen, bathroom[,] and separate entrance,” id. at 40. In support of its argument, Union Mutual
asserts that cases applying New York law interpret the phrase, “family dwelling,” as such. Its
argument, however, is not persuasive, in part because it depends on the meaning of a different
term, and because some of the New York authorities examined “the actual . . . use of the premises
at the time of the application or the loss,” in addition to the “structural configuration” of the unit.
Koczwara v. Nationwide Gen. Ins. Co., No. 20-CV-2579, 2022 WL 1471121, at *6 (S.D.N.Y. May
10, 2022). Here, the actual use of the Lees’ finished basement suggests that it was not an apartment
unit because it was used only for storage purposes, “never used as a residence,” and “never
occupied.” App’x at 52.
Union Mutual next argues that the district court erred in finding that a “reasonable person”
in the Lees’ position could have interpreted the question to “refer[] only to units that are either
occupied or could legally be occupied as apartments,” where there was no evidence of how they
interpreted the question. App’t Br. at 24. We are unpersuaded. The “reasonable person” standard
5 is an objective one. See Mostow v. State Farm Ins. Cos., 88 N.Y.2d 321, 326–27 (1996); Morgan
Stanley Grp. Inc. v. New England Ins. Co., 225 F.3d 270, 275 (2d Cir. 2000). The district court
therefore was not required to determine the Lees’ subjective views on the question; it only needed
to determine how a “reasonable person” in their position could have interpreted the question at
issue, as it did.
Finally, Union Mutual claims that the district court erred by citing New York cases
concerning life insurance rather than commercial property insurance, because the doctrine set forth
in the life insurance cases is inapplicable to commercial property insurance cases. We disagree.
The district court cited the life insurance cases for the general proposition that “[a]n answer to an
ambiguous question cannot be the basis of a claim of misrepresentation where a reasonable person
in the position of the insured could have rationally interpreted the question as the insured did.”
Lee, 2022 WL 3370086, at *7. New York courts regularly have applied this proposition in cases
involving commercial property insurance policies. See, e.g., Dam Props. Holding Corp., 177
N.Y.S.3d at 627 (applying that standard in a commercial property insurance case); Starr Indem. &
Liab. Co. v. Monte Carlo, LLC, 139 N.Y.S.3d 57, 58 (1st Dep’t 2021) (same). Union Mutual has
provided no persuasive reason why this standard should not apply in this case.
* * *
We have considered Union Mutual’s remaining arguments and find them unpersuasive.
For the reasons stated above, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk