Roundabout Theatre Co. v. Continental Casualty Co.

302 A.D.2d 1, 751 N.Y.S.2d 4, 2002 N.Y. App. Div. LEXIS 11526
CourtAppellate Division of the Supreme Court of the State of New York
DecidedNovember 26, 2002
StatusPublished
Cited by159 cases

This text of 302 A.D.2d 1 (Roundabout Theatre Co. v. Continental Casualty Co.) 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
Roundabout Theatre Co. v. Continental Casualty Co., 302 A.D.2d 1, 751 N.Y.S.2d 4, 2002 N.Y. App. Div. LEXIS 11526 (N.Y. Ct. App. 2002).

Opinion

OPINION OF THE COURT

Gonzalez, J.

This appeal requires us to determine whether the business interruption clause of an insurance policy issued to plaintiff theatre company covers losses occasioned by an order of the City of New York closing the street and denying access to the insured’s theatre due to a construction accident in the area, notwithstanding the absence of any physical damage to the theatre premises. Because the language of the business interruption clause in the policy clearly and unambiguously provides coverage only where there is direct physical loss or damage to the insured’s property, we reverse the IAS court’s determination and grant summary judgment to defendant insurer declaring that plaintiffs’ losses are not covered by the subject policy.

In February 1998, plaintiff Roundabout, a nonprofit theatre company, began staging a production of the musical Cabaret at the Eüt Kat Klub (the theatre), located at 124 West 43rd Street. [3]*3On the morning of July 21, 1998, a portion of a 48-story exterior elevator being used in the construction of the Conde Nast building, located 65 feet west on the south side of West 43rd Street, collapsed into the street and adjacent buildings. As the Conde Nast building and the theatre were separated by one building, the theatre sustained only minor damage to its roof and air conditioning system, which was repaired within one day. However, because of the substantial damage to the area and the danger from the partially collapsed scaffold, the City’s Office of Emergency Management closed West 43rd Street between Broadway and 6th Avenue until August 18, 1998. As a result, the theatre became inaccessible to the public and Roundabout was forced to cancel 35 performances of Cabaret. Roundabout sustained substantial monetary losses in the form of ticket and production-related sales as well as additional expenses incurred in reopening the production.

At the time of the accident, defendant Continental insured Roundabout under a “Theatrical Package Policy,” which included, inter alia, business interruption coverage. The “Insuring Agreement” provided:

“The Company agrees to pay to the Insured such loss * * * as the Insured shall necessarily incur in the event of interruption, postponement or cancellation of an Insured Production as a direct and sole result of loss of, damage to, or destruction of property or facilities (including the theatre building occupied * * * by the Insured, and [certain equipment]), contracted by the Insured for use in connection with such Production, caused by the perils insured against, and occurring during the term of coverage * * *” (emphasis added).

The “Perils Insured” clause of the policy provided: “This coverage insures against “all risks of direct physical loss or damage to the property described in Paragraph I [i.e., the theatre building or facilities] * * *, except as hereinafter excluded!” (emphasis added).

The policy further included a “War Risk and Governmental Authority and Civil Commotion Exclusion” which provided: “The Company shall not be liable for any loss caused directly or indirectly by * * * Civil Commotion assuming the proportions of or amounting to a popular rising, riot, martial law of [sic] the act of any lawfully constituted authority.”

[4]*4On August 20, 1998, Roundabout, through its insurance broker J&H Marsh & McLennan (J&H Marsh),1 provided notice of its loss to Continental. On August 31, 1998, Continental disclaimed coverage on the ground that the policy provided coverage only where there had been “physical damage to the property or facilities contracted by the Insured,” and because the loss was not covered due to the civil commotion exclusion.

On March 4, 1999, Roundabout commenced an action against its former insurance broker DeWitt, alleging that DeWitt was negligent in failing to obtain coverage for business interruption loss resulting from off-site property damage. In its complaint, Roundabout alleged that although DeWitt had obtained from Chubb Group the necessary coverage for losses due to off-site property damage with respect to a different property, DeWitt had failed to follow its instructions to obtain the same coverage for the Kit Kat Klub location.2 Roundabout and DeWitt reached a settlement in this action whereby DeWitt agreed to pay Roundabout $990,063 in exchange for an assignment to DeWitt of Roundabout’s rights and causes of action against Continental.

In February 2000, Roundabout and DeWitt, as assignee of the rights of Roundabout, commenced the instant action against Continental for breach of the insurance contract, and against J&H Marsh for breach of contract and negligence in failing to properly determine Roundabout’s insurance needs.3 In its answer, Continental’s second and fourth affirmative defenses asserted, consistent with its disclaimer, that the policy did not provide coverage for business interruption loss resulting from off-site property damage or from the act of any lawfully constituted authority.

In June 2001, Continental moved for summary judgment and a for a declaration that the loss arising out of the collapse of the elevator at the Conde Nast building was not covered under the Continental policy. It argued there was no coverage because there was no direct, physical loss to Roundabout’s fa[5]*5cilities and because the loss was excluded under the policy’s civil commotion exclusion. Plaintiffs cross-moved for summary judgment on the issue of coverage, arguing that coverage existed because this was an “all risk” policy, the loss at issue was “fortuitous,” and because the policy’s reference to “loss of, damage to, or destruction of property or facilities” should be read to include “loss of use” of the premises. Plaintiffs also contended that the civil commotion exclusion applies only to actions by government “in violent, war-like circumstances,” which are not present here.

In its order entered January 16, 2002, the IAS court denied Continental’s motion and granted summary judgment to Roundabout on the issue of coverage only. It found that because the Continental policy was an “all risk” policy, the loss was presumptively covered and the burden shifted to the insurer to demonstrate that the loss was expressly excluded by the terms of the policy. The court rejected Continental’s argument that the policy required physical damage to the insured’s property, finding that the language “loss of, damage to, or destruction of [the insured’s] property or facilities” encompasses a “loss of use” of the property. Otherwise, the court concluded, the phrase “loss of’ would be redundant to “destruction of’ the property. The court also ruled that the civil commotion exclusion did not apply since it was intended to cover occurrences arising from “war, civil insurrection or actions by government in violent, war-like circumstances.” This appeal followed.

Continental makes two arguments in support of reversal. First, it argues that the IAS court misconstrued the unambiguous policy language requiring physical damage to the insured’s property for covered losses and erroneously placed the burden on the insurer to demonstrate the applicability of a policy exclusion. Second, it contends that the civil commotion exclusion is applicable to the circumstances of this case and excludes coverage. We find sufficient merit in Continental’s first argument to reverse the order on appeal, and, given this result, we do not reach the second argument.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Madison Sq. Garden Sports Corp. v. Factory Mut. Ins. Co.
2023 NY Slip Op 00732 (Appellate Division of the Supreme Court of New York, 2023)
Hartford Fire Ins. Co. v. Moda, LLC
Supreme Court of Connecticut, 2023

Cite This Page — Counsel Stack

Bluebook (online)
302 A.D.2d 1, 751 N.Y.S.2d 4, 2002 N.Y. App. Div. LEXIS 11526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roundabout-theatre-co-v-continental-casualty-co-nyappdiv-2002.