Insured Establishes Reasonable Care in Maintaining Heat to Vacant Premises
In an action for coverage for damage sustained to vacant property resulting from freezing water pipes, the court held that the insured established he used reasonable care to maintain heat in his building at the time the plumbing system froze. In Gallo v. Midstate Mut. Ins. Co. (NY App., 4th Dept., Nov. 23, 2007), plaintiff submitted testimony of his property manager stating that he had restored electricity to the building before the loss by removing tabs in the electric meter. Plaintiff also submitted the testimony of the rental agent stating the electricity was on and the furnace blower was operating properly to heat the building at the time of loss. The utility company’s documents indicating it had no record of electrical service to the property were deemed insufficient to raise an issue of fact. Thus, the court conlcuded that summary judgment on the issue was properly granted in favor of the insured. The insurer’s contention—that the property manager’s acts in restoring electricity to the building could not constitute reasonable care because they constituted theft of services—was not considered by the court, as the argument was raised for the first time on appeal. The court also concluded that an exclusion for accidental discharge or overflow of liquids or steam from a plumbing system did not unambiguously apply in this case.
