This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 57
The Burlington Insurance Company,
            Appellant,
        v.
NYC Transit Authority, et al.,
            Respondents.




           Joseph D'Ambrosio, for appellant.
           Charles R. Strugatz, for respondents.
           Turner Construction Company, amicus curiae.




RIVERA, J.:
           We conclude that where an insurance policy is
restricted to liability for any bodily injury "caused, in whole
or in part" by the "acts or omissions" of the named insured, the
coverage applies to injury proximately caused by the named
insured.   The Appellate Division erroneously interpreted this


                               - 1 -
                                 - 2 -                        No. 57

policy language as extending coverage broadly to any injury
causally linked to the named insured, and wrongly concluded that
an additional insured may collect for an injury caused solely by
its own negligence, even where the named insured bears no legal
fault for the underlying harm.    We reject this "but for"
causation formulation of the policy and, on this appeal, reverse
the Appellate Division's denial of summary judgment in favor of
the insurance company on the issue of coverage.


                                 I.
          Plaintiff, The Burlington Insurance Company
(Burlington), issued an insurance policy to nonparty Breaking
Solutions, Inc. (BSI) listing as additional insureds defendants,
the New York City Transit Authority (NYCTA) and MTA New York City
Transit (MTA).   Burlington denied coverage to NYCTA and MTA on
the grounds that defendants were not additional insureds within
the meaning of the policy because NYCTA was solely responsible
for the accident that caused the injury.    This appeal requires
that we interpret whether the additional insured language of the
policy provides coverage where the named insured is not
negligent.
          According to the undisputed facts, NYCTA contracted
with BSI to provide equipment and personnel and for BSI to
perform tunnel excavation work on a New York City subway
construction project.   To comply with NYCTA's insurance


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                                - 3 -                         No. 57

requirements, BSI purchased commercial general liability
insurance from Burlington with an endorsement that listed NYCTA,
MTA, and New York City (City) as "additional insureds."1   As
specified by NYCTA, BSI agreed to use language in the endorsement
adopted from the latest form issued by a trade organization known
as the Insurance Services Office (ISO), and which provides, in
relevant part, that NYCTA, MTA, and the City are additional
insureds:
            ". . . only with respect to liability for
            'bodily injury', 'property damage' or
            'personal and advertising injury' caused, in
            whole or in part, by:
            1. Your acts or omissions; or
            2. The acts or omissions of those acting on
            your behalf."

            During the coverage period, an NYCTA employee fell off
an elevated platform as he tried to avoid an explosion after a
BSI machine touched a live electrical cable buried in concrete at
the excavation site.    The employee and his spouse brought an
action against the City and BSI in federal court, asserting Labor
Law claims, negligence, and loss of consortium (Kenny v City of
N.Y., 2011 WL 4460598 [ED NY, Sept. 26, 2011]).
            Pursuant to BSI’s policy, the City tendered its defense


     1
       The record contains two separate documents referred to as
"endorsements" to the Burlington policy. Although only one lists
NYCTA, MTA, and the City as additional insureds, on this appeal
the parties treat all three as listed under an "endorsement."
Since the disputed causation language is identical in both
documents, we adopt the parties' reference to the source of
coverage as a single "endorsement."

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in the federal action to Burlington, which Burlington accepted
subject to a reservation of rights based on the City’s
qualification as an additional insured.   Burlington withdrew its
reservation, however, after receiving NYCTA's letter to BSI that
it would not make payments under the contract unless Burlington
agreed to provide coverage for the City's defense and
indemnification without reservation.
          Meanwhile, the City impleaded NYCTA and MTA in the
employee's action and asserted third party claims for
indemnification and contribution, based on a lease between NYCTA
and the City as a property owner of certain transit facilities.
Under Article 6, Section 6.8 of that lease agreement, NYCTA
agreed to indemnify the City for liability "arising out of or in
connection with the operation, management[,] and control by the
[NYCTA]" of the leased property.2
          NYCTA tendered its defense of these claims to
Burlington, also as an additional insured under the BSI policy.
Burlington accepted the defense, subject to the same reservation
that NYCTA qualify as an additional insured under the policy
endorsement.   NYCTA did not demand, and Burlington did not


     2
       MTA is not a named party to the lease because that entity
did not exist at the time NYCTA and the City entered the
agreement. However, NYCTA is an affiliate of MTA pursuant to
section 1263 of the Public Authorities Law, added in 1965, which
renders MTA the "parent agency" of NYCTA (see Metropolitan
Transit Authority, New York City Transit - History and
Chronology, web.mta.info/nyct/facts/ffhist.htm [last visited May
2, 2017]; Public Authorities Law § 1263).

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                               - 5 -                           No. 57

submit, a withdrawal of this reservation.
          Discovery in the employee's federal lawsuit revealed
that NYCTA failed to identify, mark, or protect the electric
cable, and that it also failed to turn off the cable power.
Documents further established that the BSI machine operator could
not have known about the location of the cable or the fact that
it was electrified.   For example, in two internal memoranda,
NYCTA acknowledged its sole responsibility for the accident.     In
the first, the NYCTA superintendent explained that "the
excavation equipment operators were operating the equipment
properly and had no way of knowing that the cable was submerged
in the invert."   The second memorandum concluded that "this
accident was primarily due to an inadequate/ineffective
inspection process for identifying job-site hazards involving
buried energized cables."   Based on these revelations, Burlington
disclaimed coverage of NYCTA and MTA, asserting that BSI was not
at fault for the injuries and therefore NYCTA and MTA were not
additional insureds under the policy.
          The district court dismissed the employee's claims
against BSI with prejudice, and the City's third-party claims
against NYCTA without prejudice.   Burlington thereafter settled
the lawsuit for $950,000 and paid the City's defense costs.
          Burlington commenced the underlying action in state
court after disclaiming coverage for NYCTA and MTA.   Initially,
Burlington sought a declaratory judgment that it did not owe


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                               - 6 -                           No. 57

NYCTA and MTA coverage as additional insureds under BSI's policy.
After settling the employee's action against the City, Burlington
moved to amend its complaint to add a claim for contractual
indemnification as the City's subrogee under the lease with
NYCTA.
          Supreme Court granted Burlington's motion for summary
judgment, concluding that NYCTA and MTA were not additional
insureds because the policy limited liability to instances where
BSI, as the named insured, was negligent.   The court also granted
Burlington's motion to amend the complaint, finding that the
anti-subrogation rule did not bar Burlington's claim as the
City’s subrogee.   Burlington then moved for partial summary
judgment on its contractual indemnification claim against NYCTA,
which the court granted and subsequently entered judgment for
Burlington for the $950,000 settlement amount, along with
prejudgment interest, fees, and costs.
          The Appellate Division reversed, denying plaintiff's
motions for summary judgment and to amend the complaint, and
granting defendants' cross motion for summary judgment on the
first cause of action to the extent of declaring that defendants
were entitled to coverage as additional insureds under the
Burlington policy (132 AD3d 127 [1st Dept 2015]).   The court
concluded that the named insured was not negligent, but "the act
of triggering the explosion . . . was a cause of [the employee's]
injury" within the meaning of the policy (132 AD3d at 134-135).


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The court also determined that as a consequence, it "necessarily
follows that the anti-subrogation rule bars Burlington from
recovering, as the City's subrogee" (id. at 138).    We granted
Burlington leave to appeal (27 NY3d 905 [2016]).


                                II.
          Burlington argues that under the plain meaning of the
endorsement NYCTA and MTA are not additional insureds because the
acts or omissions of the named insured, BSI, were not a proximate
cause of the injury.   Put another way, Burlington maintains that
the coverage does not apply where, as here, the additional
insured was the sole proximate cause of the injury.
          In response, NYCTA and MTA also rely on the policy
language, but claim that by its express terms the endorsement
applies to any act or omission by BSI that resulted in injury,
regardless of the additional insured’s negligence.    They further
argue that the Appellate Division properly concluded that BSI’s
operation of its excavation machine provided the requisite causal
nexus between injury and act to trigger coverage under the
policy.
           Burlington has the better argument.   Applying the
relevant legal principles to the policy language, we conclude
that there is no coverage because, by its terms, the policy
endorsement is limited to those injuries proximately caused by
BSI.


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                                A.
          "An insurance agreement is subject to principles of
contract interpretation" (Universal Am. Corp. v Nat'l Union Fire
Ins. Co. of Pittsburgh, Pa., 25 NY3d 675, 680 [2015]).
Therefore, "[a]s with the construction of contracts generally,
'unambiguous provisions of an insurance contract must be given
their plain and ordinary meaning, and the interpretation of such
provisions is a question of law for the court'" (Vigilant Ins.
Co. v Bear Stearns Companies, Inc., 10 NY3d 170, 177 [2008],
quoting White v Continental Cas. Co., 9 NY3d 264, 267 [2007]
[citations omitted]).
          The policy here states, in relevant part, that an
entity is "an additional insured only with respect to liability
for 'bodily injury' caused, in whole or in part, by [BSI's] acts
or omissions."   The defendants argue that the endorsement does
not limit liability to cases in which an insured's acts or
omissions are negligent or otherwise legally actionable.
Essentially, they advocate that "caused, in whole or in part"
means "but for" causation.   Under their reading of the policy,
all that is necessary for an additional insured to be covered is
that the insured's conduct be a causal link to the injury.    This
is an incorrect interpretation of the policy language, which by
its terms, describes proximate causation and legal liability
based on the insured's negligence or other actionable deed.




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                                  B.
           It is well established in our law that "but for"
causation, or causation in fact, is "[t]he cause without which
the event could not have occurred" (Black's Law Dictionary [10th
ed. 2014], but-for cause; Dan B. Dobbs et al., Torts § 186 [2d
ed. 2011]; see also Koehler v Schwartz, 48 NY2d 807, 808-809
[1979]; 14 New York Practice Series: New York Law of Torts §
8:3]).   The term refers to a link in the chain leading to an
outcome, and in the abstract does no more than state the obvious,
that "any given event, including an injury, is always the result
of many causes" (Dobbs, § 189).    However, not all "but for"
causes result in liability and "[m]ost causes can be ignored in
tort litigation" (id.).   In contrast, "proximate cause" refers to
a "legal cause" to which the Court has assigned liability
(Derdiarian v Felix Contracting Corp., 51 NY2d 308, 314 [1980];
see Hain v Jamison, 28 NY3d 524, 528-529 [2016] ["the
determination of proximate cause involves, among other things,
policy-laden considerations; that is, the chain of causation must
have an endpoint in order 'to place manageable limits upon the
liability that flows from negligent conduct'"]).    The dissent
suggests that "proximate cause" and "but-for cause" may be
equivalent concepts (dissenting op at 14), but the law is clear
that the two are not synonymous (see Dobbs, § 189).     As the Court
has explained, "'because of convenience, of public policy, of a
rough sense of justice, the law arbitrarily declines to trace a


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series of events beyond a certain point'" (Ventricelli v Kinney
Sys. Rent A Car, Inc., 45 NY2d 950, 952, amended 46 NY2d 770
[1978], quoting Palsgraf v Long Is. R. R. Co., 248 NY 339, 352
[1928] [Andrews, J., dissenting]).
           Here, the Burlington policy endorsement states that the
injury must be "caused, in whole or in part" by BSI.   These words
require proximate causation since "but for" causation cannot be
partial.   An event may not be wholly or partially connected to a
result, it either is or it is not connected.   Stated differently,
although there may be more than one proximate cause, all "but
for" causes bear some connection to the outcome even if all do
not lead to legal liability.   Thus, these words -- "in whole or
in part" -- can only modify "proximate cause" (see Dobbs § 189;
Black's Law Dictionary, proximate cause; Hain v Jamison, 28 NY3d
at 529).   Defendants' interpretation would render this
modification superfluous, in contravention of the rule that
requires us to interpret the language "in a manner that gives
full force and effect to the policy language and does not render
a portion of the provision meaningless" (Cragg v Allstate Indem.
Corp., 17 NY3d 118, 122 [2011] [internal citations omitted]).
           NYCTA and MTA argue that the language "in whole or in
part" was necessary in order to make clear that the parties did
not mean "solely caused by."   Without the additional language,
they contend, the endorsement would provide NYCTA and MTA
coverage only if BSI's acts or omissions were solely responsible


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for the loss.   We find this argument is unpersuasive because the
phrases "caused, in whole or in part, by" and "solely caused by"
are not synonymous, either by their plain meaning or legal effect
(see Argentina v Emery World Wide Delivery Corp., 93 NY2d 554,
561 n 2 [1999] [the Court considered "the proximate cause" to
mean "a proximate cause" since "there may be more than one
proximate cause of an injury"]; see also NY PJI 2:70, Comment
Caveat 1).
          The endorsement's reference to "liability" caused by
BSI's acts or omissions further confirms that coverage for
additional insureds is limited to situations where the insured is
the proximate cause of the injury.     Liability exists precisely
where there is fault (Dobbs, § 2 ["torts are traditionally
associated with wrongdoing" and "[i]n the great majority of cases
today, tort liability is grounded in the conclusion that the
wrongdoer was at fault in a legally recognizable way"]).     That
the policy extends coverage to an additional insured "only with
respect to liability" establishes that the "caused, in whole or
in part, by" language limits coverage for damages resulting from
BSI's negligence or some other actionable "act or omission."
          Since the endorsement language stands on its own, we
reject the parties' and the dissent's central premise that if the
parties meant "proximate causation," they would have included




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                              - 12 -                           No. 57

those words in the endorsement.3   This argument ignores the
import of the endorsement's actual language and the rule that we
must interpret that language "in a manner that gives [it] full
force and effect . . . and does not render a portion of the
provision meaningless" (Cragg, 17 NY3d at 122).   As our law makes
clear, it is enough that the parties used words that convey the
legal doctrine of proximate causation.   The fact that the parties
could have used different language to communicate that legal
concept is not fatal to Burlington's argument.    Giving the words
chosen by the parties their plain and ordinary meaning, the
endorsement describes proximate cause (see Vigilant Insurance, 10
NY3d at 177).   Contrary to the dissent's view, our reference to
legal terminology does not signal a departure from the rule that
we apply a "plain and ordinary meaning" to the policy language
(dissenting op at 12, 18).   The endorsement expresses in lay
terms what the courts have long defined as "proximate causation."
Our conclusion as to the legal import of the parties' chosen
words does not subject the policy to some heightened standard of
contract interpretation.
          We similarly reject defendants' invitation to adopt the
First Department's conclusion, based on its prior decisions, that
the phrase "'caused by' 'does not materially differ from the


     3
       We find the dissent's assertion of this argument
especially perplexing given that the dissent claims our analysis
is flawed for applying legal meaning to the plain words contained
in the endorsement (dissenting op at 12).

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phrase, 'arising out of'" and results in coverage even in the
absence of the insured's negligence (Burlington Ins. Co. v NYC
Transit Authority, 132 AD3d at 135, citing W & W Glass Sys., Inc.
v Admiral Ins. Co., 91 AD3d 530 [1st Dept 2012]; National Union
Fire Ins. Co. of Pittsburgh, PA v Greenwich Ins. Co., 103 AD3d
473 [1st Dept 2013]).   Since the parties did not use the phrase
"arising out of," the First Department's analogy is inapt.     All
that matters is the language adopted by the parties to the
insurance policy at issue in this appeal.   For the reasons we
have explained, "caused, in whole or in part" as used in the
endorsement, requires the insured to be the proximate cause of
the injury giving rise to liability, not merely the "but for"
cause.   Furthermore, "arising out of" is not the functional
equivalent of "proximately caused by" (see Maroney v New York
Cent. Mut Fire Ins. Co., 5 NY3d 467, 472 [2005], citing Aetna
Cas. & Sur. Co. v Liberty Mut. Ins. Co., 91 AD2d 317, 320-321
[4th Dept 1983] [reasoning that the phrase "arising out of" is
"ordinarily understood to mean originating from, incident to, or
having connection with"]; see also Worth Construction Co., Inc. v
Admiral Ins. Co., 10 NY3d 411, 415 [2008], quoting Maroney, 5
NY3d at 472; Regal Construction v National Union Fire Ins. Co. of
Pittsburg, PA, 15 NY3d 34, 38 [2010], quoting Maroney, 5 NY3d at
472).
           While we agree with the dissent that interpreting the
phrases differently does not compel the conclusion that the


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endorsement incorporates a negligence requirement (dissenting op
at 17 n 9), it does compel us to interpret "caused, in whole or
in part" to mean more than "but for" causation (see Maroney, 5
NY3d at 472; Regal Constr., 15 NY3d at 39).   That interpretation,
coupled with the endorsement's application to acts or omissions
that result in liability, supports our conclusion that proximate
cause is required here.
          Case law from other jurisdictions makes a similar
distinction.   The Texas Supreme Court, for example, has held that
"'arise out of' means that there is simply a 'causal connection
or relation,' which is interpreted to mean that there is but for
causation, though not necessarily direct or proximate cause"
(Utica Nat. Insc. Co. of Texas v American Indem. Co., 141 SW3d
198, 203 [Tex Sup Ct 2004]).   Similarly, the Pennsylvania Supreme
Court has explained that, "'arising out of' means causally
connected with, not proximately caused by" (Manufacturers Cas.
Ins. Co. v Goodville Mut. Cas. Co., 403 Pa 603, 607–608 [Sup Ct
1961]).   Furthermore, federal courts have rejected the
interpretation espoused by the First Department.   For example, in
National Union Fire Ins. Co. of Pittsburgh, PA v XL Ins. America,
Inc., the Southern District of New York expressly disapproved the
First Department's approach, and held that "'caused by' requires
a showing that [the named insured]'s operations proximately
caused the bodily injury for which" indemnity was sought (2013 WL
1944468 at *7 [SD NY 2013]; see also Wausau Underwriters Ins. Co.


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                              - 15 -                          No. 57

v Old Republic Gen. Ins. Co., 122 F Supp 3d 44, 52 [SD NY 2015]
["whether an injury was legally caused by a party's actions is a
much more demanding question than whether the injury arose out of
those actions"]).   The Eastern District of Pennsylvania, when
presented with the same additional insured endorsement language
at issue in this appeal, held that "caused by" required
"proximate cause" in order to trigger coverage (Dale Corp. v
Cumerbland Mut. Fire Ins. Co., 2010 WL 4909600 at *7 [ED PA
2010]).
          Here, BSI was not at fault.   The employee's injury was
due to NYCTA's sole negligence in failing to identify, mark, or
deenergize the cable.   Although but for BSI’s machine coming into
contact with the live cable, the explosion would not have
occurred and the employee would not have fallen or been injured,
that triggering act was not the proximate cause of the employee's
injuries since BSI was not at fault in operating the machine in
the manner that led it to touch the live cable.4




     4
       The dissent argues that "the policy contains coverage for
defendants with respect to the underlying matter inasmuch as the
accident was produced by and would not have occurred absent BSI's
operation of its excavation equipment" (dissenting op at 15
[internal citations omitted]). This interpretation would extend
coverage to any and all but-for causes, including turning on and
checking the machine the morning of the accident. Certainly the
plain meaning of the phrase "caused by" does not ordinarily
extend so far, nor could the dissent mean for coverage to extend
to such remote circumstances.

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                               III.
          The dissent's concern that our "approach could threaten
the stability and certainty of our bedrock rules of insurance
policy interpretation" (dissenting op at 17) is unwarranted.       Our
opinion adheres to contract principles that the plain and
ordinary meaning applies and that the parties may freely
negotiate the terms of the policy.     There is also no basis for
the dissent's speculation that our decision may have a
"destructive" impact on liability insurance coverage (dissenting
op at 18).   Our analysis should come as no surprise to the
industry because the drafters of the language used here intended
it to mean proximate causation.
          In crafting the additional insured endorsement, NYCTA
required that the policy include additional insured coverage
using the latest ISO "Form CG 20 10 or equivalent."     In 2004 --
four years before the parties entered the construction contract
and BSI purchased insurance from Burlington -- the version of
this ISO form was amended to replace the language "arising out
of" with "caused, in whole or in part."     The change was intended
to provide coverage for an additional insured's vicarious or
contributory negligence, and to prevent coverage for the
additional insured's sole negligence (see Dale, 2010 WL 4909600,
at *5 ["The ISO introduced this revised version of its widely
used additional insured endorsements as a response to courts'
interpretations of its prior version"]).     In describing its


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                              - 17 -                          No. 57

motivation for the 2004 amendment, ISO explained that it had
"monitored various court decisions and found that courts in many
disputes between insurers and insureds have construed broadly the
phrase arising out of," and further that "some courts have ruled
that . . . the current additional insured endorsements do respond
to injury or damage arising from the additional insureds sole
negligence" (Coverage for Additional Insured-Vendors: Recent
Markdowns by ISO and New York's High Court, 19-36 Mealey's Litig.
Rep. Ins. 11 [2005]).   This, the ISO explained was "contrary to
the original intent of the additional insured endorsements"
(id.).   At the heart of the amendment, therefore, was "the
preclusion of coverage for an additional insured's sole
negligence" (id.).
           It is therefore defendant's interpretation that would
lead to unanticipated results.   The purpose of additional insured
coverage is to "apportion risks" (Trisha Strode, From the Bottom
of the Food Chain Looking Up: Subcontractors and the Full Costs
of Additional Insured Endorsements, Constr. Law., Summer 2005, at
21, 21–22).   "By hiring a subcontractor, a general contractor
exposes itself to . . . liability risks, including vicarious
responsibility for its subcontractor's negligence" and
"[a]dditional insured endorsements represent a way to apportion
contractually these risks" (id.).   The rationale is to "make the
party with the most control over the risk responsible for
suffering the financial loss should it fail to prevent the loss"


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(id.).   Therefore, to extend coverage to the additional insureds
under the circumstances of this case may frustrate the clear
purpose of obtaining additional insured insurance in the first
place (see 3 Couch on Ins. § 40:26 ["coverage for an additional
insured is typically limited to liability arising out of the
named insured's work or operations" and "additional insured
status does not provide coverage to an additional insured for the
additional insured's own work or operations"]).   It would allow
NYCTA to compel a subcontractor to pay for injuries to its
employee which NYCTA proximately caused -- an outcome not
intended by the parties and contrary to the plain language of the
endorsement.
          Of course, if the parties desire a different allocation
of risk, they are free to negotiate language that serves their
interests.   Our decision should not be interpreted to limit the
venerable right to contract on terms agreed to by the parties
(see Chimart Assocs. v Paul, 66 NY2d 570, 574 [1986]).


                                IV.
          Accordingly, the judgment appealed from, and order of
the Appellate Division brought up for review should be reversed,
with costs, plaintiff's motion for summary judgment on the first
cause of action is granted, defendants' cross motion for summary
judgment on the first cause of action is denied, and the case
remitted to the Appellate Division for further proceedings in


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                                - 19 -   No. 57

accordance with this opinion.




                                - 19 -
The Burlington Ins. Co. v NYC Tr. Auth.
No. 57




FAHEY, J.(dissenting):
           I respectfully dissent.   Bedrock principles of
insurance contract interpretation demand that we conclude that
defendants are entitled to coverage with respect to the
underlying matter as additional insureds under the policy of
insurance issued to nonparty Breaking Solutions, Inc. (BSI) by
plaintiff.
                               Facts
           This declaratory judgment action overlies a personal
injury action that had its genesis in the excavation of a subway
tunnel in Brooklyn.   In July 2008, defendant New York City
Transit Authority (NYCTA) contracted with BSI for the supply of
"concrete breakers" and related labor in connection with the
project.   Pursuant to the contract's insurance requirements, BSI
was to obtain, among other things, $2 million in general
liability insurance, with respect to which NYCTA, defendant MTA
New York City Transit (MTA), and the City of New York (City) were
to be named as additional insureds.
           BSI honored that commitment and obtained from plaintiff
a policy of insurance that, as relevant here, provided an


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                               - 2 -                          No. 57

aggregate of $2 million in general liability coverage and
contained an endorsement naming defendants as additional insureds
thereunder.   The subject endorsement (which bears form No. IFG-I-
0160 1100) provides, in pertinent part, that defendants are
additional insureds under the policy "with respect to liability
for 'bodily injury' . . . caused, in whole or in part, by[]
[BSI's] acts or omissions . . . ." (emphasis added).1
          In February 2009, nonparty Thomas P. Kenny was employed
by MTA in furtherance of the subject construction project.
During the course of that work, an explosion and fire occurred
when the drill of one of the machines supplied by BSI contacted a
live electrical cable.   At the time of the explosion, Kenny was



     1
       This dispute actually implicates multiple additional
insured endorsements. The endorsement on which defendants (and
the majority [see majority op at 3]) rely bears form No. IFG-I-
0160 1100 and confers additional insured status upon entities
with respect to which BSI had "agreed in writing in a contract
[would] be added as an additional insured on [the] policy." As
noted, this conferral of coverage is a qualified one; pursuant to
this endorsement, such entities are entitled to coverage as
additional insureds "with respect to liability for 'bodily
injury' . . . caused, in whole or in part, by[] [BSI's] acts or
omissions . . . ." (emphasis added).
     Plaintiff relies on a different endorsement, which bears
form No. CG 20 26 07 04 and which designates NYCTA as an
additional insured. Similar to the "other" endorsement, this
amendment provides coverage with respect to liability for bodily
injury "caused, in whole or in part, by [BSI's] acts or omissions
. . . ." Inasmuch as the coverage afforded under each such
endorsement essentially is the same, for the purposes of my
analysis it is of no moment that the parties rely on different
amendments in seeking to establish what, if any, coverage
plaintiff may owe defendants with respect to the underlying
action (cf. majority op at 16-17).

                               - 2 -
                                - 3 -                         No. 57

perched on a benchwall, and he fell from that elevated work
location while trying to evacuate the tunnel following that
incident.
            Kenny and his wife subsequently commenced the
underlying action (in which they asserted causes of action for
common-law negligence and violation of Labor Law §§ 200, 240 [1],
and 241 [6], as well as for loss of consortium) in the United
States District Court for the Eastern District of New York.      BSI
tendered the claims in that action to plaintiff under the policy,
and plaintiff agreed to defend and indemnify BSI in that matter.
Although it did not immediately accept the City's separate tender
of coverage with respect to the underlying action, plaintiff
initially agreed to provide the City with a defense in that
matter subject to a reservation of rights.
            Afterwards, the City commenced a third-party action
against defendants seeking contractual indemnification with
respect to the claims asserted against the City in the underlying
action.   Defendants, in turn, tendered coverage for the claims
asserted against them in the third-party action to plaintiff,
which agreed to defend defendants with respect thereto subject to
a reservation of rights.    The reservation of rights was based on
plaintiff's theory that "it ha[d] not been determined whether
liability was caused by acts or omissions of [BSI]."
            The reservation of rights also reflected a temporary
coverage position.    According to plaintiff, discovery in the


                                - 3 -
                               - 4 -                          No. 57

underlying action revealed that MTA neither disconnected the
electrical cable from a power supply nor warned BSI of that
cable, and that the machines supplied by BSI were operated
properly at the time of the explosion.   Said another way,
discovery showed that the series of events giving rise to the
Kennys' injuries began with defendants' failure to alert BSI to
the "live" electrical cable, which allowed BSI to strike that
cable, which, in turn, precipitated the explosion that injured
Kenny.
           Based on that evidence, plaintiff withdrew its defense
and "disclaim[ed]" coverage for defendants in the underlying
matter (cf. Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d
185, 188 [2000] ["Disclaimer . . . is unnecessary when a claim
falls outside the scope of the policy's coverage portion"]),
reasoning that "the uncontroverted evidence establishes that the
accident was solely caused by [defendants]."   In the meantime,
however, plaintiff continued to defend the City in the underlying
action, and the claims against the City eventually were settled
through a payment plaintiff made to the Kennys on the City's
behalf.2
           By then, plaintiff had commenced this overlying
coverage action seeking judgment declaring that defendants are
not entitled to coverage under the policy with respect to the


     2
       The Kennys' claims against BSI were dismissed with
prejudice on the Kennys' own motion.

                               - 4 -
                                 - 5 -                        No. 57

underlying matter.   Following motion practice, Supreme Court,
among other things, entered an order and judgment granting
plaintiff summary judgment and making a declaration to that
effect.
          On appeal, the Appellate Division reversed the order
and judgment and declared "that defendants were entitled to
coverage in the underlying personal injury action as additional
insured[s] under [the] policy" (132 AD3d 127, 139 [1st Dept
2015]; see id. at 134-138).   The Appellate Division noted that
"[i]t is undisputed that Kenny's injury was causally connected to
an 'act[]' of [BSI]" inasmuch as it was BSI's "disturbance of [a]
buried electrical cable[] [that] triggered the explosion that led
to Kenny's fall" (id. at 134).    The Appellate Division added that
          "[w]hile it is true that, because
          [defendants] had not warned the [BSI]
          operator of the cable's presence, [BSI's]
          'act[]' did not constitute negligence, this
          does not change the fact that the act of
          triggering the explosion, faultless though it
          was on [BSI's] part, was a cause of Kenny's
          injury. The language of the relevant
          endorsement, on its face, defines the
          additional insured coverage afforded in terms
          of whether the loss was 'caused by' [BSI's]
          'acts or omissions,' without regard to
          whether those 'acts or omissions' constituted
          negligence or were otherwise actionable" (id.
          at 134-135).
          Given what apparently was the concern with the finality
of the Appellate Division order -- it left pending the
counterclaim defendants asserted for attorneys' fees pursuant to




                                 - 5 -
                               - 6 -                          No. 57

the Mighty Midgets rule3 -- Supreme Court entered a final
judgment that resolved the fee question and declared that
defendants "were entitled to coverage in the underlying personal
injury action as additional insureds under [the] policy."   We
granted plaintiff leave to appeal from that judgment (27 NY3d 905
[2016]).
                                Law


           "'In determining a dispute over insurance coverage, we
first look to the language of the policy'" (Lend Lease [US]
Constr. LMB Inc. v Zurich Am. Ins. Co., 28 NY3d 675, 681 [2017],
quoting Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98
NY2d 208, 221 [2002]).   "An insurance agreement," as the majority
notes, "is subject to principles of contract interpretation"
(Universal Am. Corp. v National Union Fire Ins. Co. of
Pittsburgh, Pa., 25 NY3d 675, 680 [2015]; see majority op at 8).
It also is true that, "'[a]s with the construction of contracts
generally, unambiguous provisions of an insurance contract must
be given their plain and ordinary meaning, and [that] the
interpretation of such provisions is a question of law for the



     3
       Under that rule, an insured "cast in a defensive posture
by the legal steps an insurer takes in an effort to free itself
from its policy obligations" may recover attorneys' fees and
expenses incurred in defending against the insurer's "affirmative
action . . . to settle its rights" where the insured prevails in
that action (Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21
[1979]).

                               - 6 -
                               - 7 -                         No. 57

court'" (Lend Lease, 28 NY3d at 681-682 [emphasis added], quoting
Vigilant Ins. Co. v Bear Stearns Cos., Inc., 10 NY3d 170, 177
[2008]; see Universal Am. Corp., 25 NY3d at 680, quoting Cragg v
Allstate Indem. Co., 17 NY3d 118, 122 [2011] for the proposition
that "[i]nsurance contracts must be interpreted according to
common speech and consistent with the reasonable expectations of
the average insured"; see also majority op at 8).
          These core principles of insurance policy construction
are not the only bedrock rules relevant to this analysis (cf.
majority op at 8).   We recently reiterated that where a "'policy
may be reasonably interpreted in two conflicting manners, its
terms are ambiguous'" (Lend Lease, 28 NY3d at 682, quoting Matter
of Mostow v State Farm Ins. Cos., 88 NY2d 321, 326 [1996];   see
Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986] ["The initial
question() (in determining whether there is any ambiguity in the
language) is whether the agreement on its face is reasonably
susceptible of more than one interpretation"]).   More
specifically, we have said that "[a]mbiguity in a contract arises
when the contract, read as a whole, fails to disclose its purpose
and the parties' intent, or where its terms are subject to more
than one reasonable interpretation" (Universal Am. Corp., 25 NY3d
at 680 [emphasis added and internal quotation marks and citations
omitted]).
          To be sure, "parties cannot create ambiguity from whole
cloth where none exists, because provisions 'are not ambiguous


                               - 7 -
                              - 8 -                           No. 57

merely because the parties interpret them differently'"
(Universal Am. Corp., 25 NY3d at 680, quoting Mount Vernon Fire
Ins. Co. v Creative Hous., 88 NY2d 347, 352 [1996]; see Selective
Ins. Co. of Am. v County of Rensselaer, 26 NY3d 649, 655-656
[2016] ["A contract is unambiguous if the language it uses has a
definite and precise meaning, unattended by danger of
misconception in the purport of the (agreement) itself, and
concerning which there is no reasonable basis for a difference of
opinion"] [internal quotation marks omitted]).   "Rather, 'the
test to determine whether an insurance contract is ambiguous
focuses on the reasonable expectations of the average insured
upon reading the policy and employing common speech'" (Universal
Am. Corp., 25 NY3d at 680 [emphases added], quoting Mostow, 88
NY2d at 326-327; see Cragg, 17 NY3d at 122).   Of course, "'any
ambiguity must be construed in favor of the insured and against
the insurer'" (Lend Lease, 28 NY3d at 682 [emphasis added],
quoting White v Continental Cas. Co., 9 NY3d 264, 267 [2007]).


                            Analysis
                      The Coverage Question
          The application of these canons to the subject
endorsement4 demands that we conclude that defendants are


     4
       As noted, the endorsement on which defendants (and the
majority) rely provides, in relevant part, that defendants are
additional insureds under the policy "with respect to liability
for 'bodily injury' . . . caused, in whole or in part, by [BSI's]

                              - 8 -
                                - 9 -                          No. 57

entitled to coverage with respect to the underlying matter as
additional insureds under the policy.    The fact that the
explosion and fire were sparked by an action of BSI (the named
insured on the policy) means that BSI caused the explosion, and
the fact that the explosion knocked Kenny from his elevated work
area means that such blast caused the underlying accident.5     To
that end, inasmuch as BSI contacted the live wire with one of its
devices, it necessarily follows that BSI caused the injuries the
Kennys sustained as a result of that incident.    Based on that
series of events, it also necessarily follows that defendants are
additional insureds under the plain and obvious meaning of the
endorsement in question.
            Indeed, "the existence of coverage [for defendants as
additional insureds] does not depend upon a showing that [BSI's]
causal conduct was negligent or otherwise at fault" (132 AD3d at
135).    The endorsement confers additional insured status where
the mere acts of the named insured cause the bodily injury
complained of.    If the drafter meant for such status to be
contingent upon a negligent act or acts of the named insured,


acts or omissions . . . ." (emphasis added).
     5
       Of course, there may be more than one cause of an accident
(see generally Mazella v Beals, 27 NY3d 694, 706 [2016], citing
Argentina v Emery World Wide Delivery Corp., 93 NY2d 554, 560 n 2
[1999]). Based on their failure to alert BSI to the "live"
electrical cable, defendants surely contributed to the happening
of the accident. That fault, however, does not mean that BSI's
actions in contacting the wire were not a (non-negligent) cause
of that incident.

                                - 9 -
                             - 10 -                           No. 57

then the policy easily could have said as much.    That is, the
policy could have afforded additional insured status "only with
respect to liability for 'bodily injury' . . . caused, in whole
or in part, by [the named insured's negligent] acts or
omissions."
          Similarly, if the drafter intended that coverage under
the endorsement be contingent upon a showing of proximate cause,
as the majority defines that phrase (see majority op at 9; see
also infra at 13-14), then the policy easily could have been
written to contain that condition.    Specifically, the policy
could have conferred additional insured status "only with respect
to liability for 'bodily injury' [proximately] caused, in whole
or in part, by [the] acts or omissions [of the named insured]."
Inasmuch as the endorsement contains none of the aforementioned
qualifications, the cardinal rules of policy interpretation
require that we conclude that defendants are entitled to coverage
with respect to the underlying matter as additional insureds
under the policy.6


     6
       Although not determinative of this coverage question, this
analysis is consistent with Appellate Division case law (see e.g.
Aspen Specialty Ins. Co. v Ironshore Indem. Inc., 144 AD3d 606,
607 [1st Dept 2016]; Kel-Mar Designs, Inc. v Harleysville Ins.
Co. of N.Y., 127 AD3d 662, 663 [1st Dept 2015]; Strauss Painting,
Inc. v Mt. Hawley Ins. Co., 105 AD3d 512, 513 [1st Dept 2013],
mod on other grounds 24 NY3d 578, 595-596 [2014], rearg
denied 24 NY3d 1217 [2015]; National Union Fire Ins. Co. of
Pittsburgh, PA v Greenwich Ins. Co., 103 AD3d 473, 474 [1st Dept
2013]; W & W Glass Sys., Inc. v Admiral Ins. Co., 91 AD3d 530
[1st Dept 2012]).
     Moreover, the inconsistency of this analysis with National

                             - 10 -
                              - 11 -                          No. 57

                     The Majority's Conclusion
           The majority, of course, has a different interpretation
of the policy (see majority op at 8-9).   I will address each of
what I perceive to be the three main flaws in its analysis in
turn.
           First, the majority credits plaintiff's obscurative
contention with respect to the relevance of the distinction
between "but-for causation" and "proximate cause" to this
interpretive exercise (see majority op at 9-10).   As the theory
begins, the phrase "caused . . . by" has a legal meaning and must
refer to either "proximate cause" or "but-for" causation (see
id.).   As the theory continues, the policy language "caused, in
whole or in part, by [BSI's] acts or omissions" (emphasis added)



Union Fire Ins. Co. of Pittsburgh, PA v XL Ins. Am., Inc. (2013
WL 1944468 [SD NY, May 7, 2013, No. 12 Civ. 5007(JSR)]) and Dale
Corp. v Cumerbland Mut. Fire Ins. Co. (2010 WL 4909600 [ED Pa
2010, Nov. 30, 2010, No. 09-1115]) is of no moment (cf. majority
op at 14-15). In National Union Fire Ins. Co., the Southern
District acknowledged that "the phrase 'caused by' does not
obviously disclose a singular meaning" (2013 WL 1944468, at *6)
-- thereby hinting at an ambiguity in the endorsement -- before
"adopt[ing] the reasoning of Dale[] and hold[ing] that 'caused
by' requires a showing that [the acts or operations of the named
insured] proximately caused the bodily injury [at issue]" (id. at
*7). Dale, however, projected the "proximately caused" language
into an endorsement substantively identical to that at issue here
(see Dale, 2010 WL 4909600, at *1) based on the "drafter's
history" (id. at *7) -- specifically, the "hope[]" of the drafter
for a "narrow[] coverage interpretation" (see id. at *5). Based
on our rules of policy interpretation, it is the policy's
language (see Lend Lease, 28 NY3d at 681; Consolidated Edison
Co., 98 NY2d at 221), not the drafter's explanation of that
language, that drives a coverage analysis.

                              - 11 -
                              - 12 -                          No. 57

must refer to "proximate cause" because "'but for' causation
cannot be partial" (id. at 10).
           In my view, however, there is no basis to apply a legal
meaning, rather than a plain and ordinary meaning, to the word
"cause" in this context (see Lend Lease, 28 NY3d at 684;
Universal Am. Corp., 25 NY3d at 680; cf. majority op at 12
[concluding the "plain and ordinary meaning" of the endorsement
communicates a "legal concept"]).   In fact, in ascertaining the
plain and ordinary meaning of a provision of an insurance policy,
this Court has "regarded dictionary definitions as useful
guideposts" (Yaniveth R. v LTD Realty Co., 27 NY3d 186, 192
[2016] [considering a question of statutory interpretation];
see Universal Am. Corp., 25 NY3d at 681 [relying on a dictionary
to determine "the common definition(s)" of various terms
contained in a rider central to the coverage question in that
case]).   The term "cause" refers to, among other things,
"something that brings about an effect or a result" (Merriam-
Webster Collegiate Dictionary 196 [11th ed 2004]; see Webster's
Third New International Dictionary 356 [2002] [defining cause as,
among other things, a "thing . . . that brings about an effect
. . . ."]; Oxford English Dictionary, http://www.oed.com
[accessed May 19, 2017] [defining cause as, among other things,
"(t)hat which produces an effect; that which gives rise to any
action, phenomenon, or condition"]; Oxford Living Dictionaries,
https://en.oxforddictionaries/com/definition/cause [accessed May


                              - 12 -
                             - 13 -                           No. 57

16, 2017] [cause is "(a) person or thing that gives rise to an
action, phenomenon, or condition"]; Cambridge Dictionary,
http://dictionary.cambridge.org/us/dictionary/english/cause
[accessed May 16, 2017] [cause is "something without which
something else would not happen"]).   The application of the plain
and ordinary meaning of "cause" to the subject endorsement
compels the conclusion that BSI caused the bodily injuries that
Kenny sustained as a result of the accident (see supra at 8-10),
and that defendants therefore are additional insureds under that
amendment.7
          Second, even if legal jargon is relevant to the meaning
of "cause," as the word is used in the subject endorsement (cf.
Universal Am. Corp., 25 NY3d at 680 ["the test to determine
whether an insurance contract is ambiguous focuses on the


     7
       Two additional points are relevant here.
     First, in lieu of acknowledging and addressing the litany of
dictionary definitions that compel the conclusion that defendants
are entitled to coverage with respect to the underlying matter as
additional insureds under the policy (see supra at 12-13), the
majority advances an unavailing argumentum ad absurdum (see
majority op at 15-16 n 5).
     Second, the majority's point that its "analysis [to the
contrary] should come as no surprise to the industry because the
drafters of the language used here intended it to mean proximate
causation" (majority op at 16; see id. at 17, citing Coverage for
Additional Insured-Vendors: Recent Markdowns by ISO and New
York's High Court, 19-36 Mealey's Litig. Rep. Ins. 11 [2005]) is
of no moment. Irrespective of whether the reference to
"industry" pertains to the insurance industry or to the
construction industry, the point remains that the intent of the
drafter is immaterial to this analysis. It is what the drafter
said, not what the drafter may have meant to say, that guides our
review of this coverage question.

                             - 13 -
                             - 14 -                         No. 57

reasonable expectations of the average insured upon reading the
policy and employing common speech"] [internal quotation marks
omitted]; Cragg, 17 NY3d at 122 ["(i)nsurance contracts must be
interpreted according to common speech"]), defendants still would
qualify as additional insureds under the policy.   To the extent
"cause" somehow could be seen to mean "proximate cause" (cf.
Royal Indem. Co. v Providence Washington Ins. Co., 92 NY2d 653,
659 [1998] [refusing to read into an insurance policy a condition
that does not exist therein]), a reasonable mind could define it
as something "that is legally sufficient to result in liability"
(Black's Law Dictionary 265 [10th ed 2014] [defining "proximate
cause"]; see majority op at 9).   This is not, however, to say
that "proximate cause" has only one meaning; it also has been
defined as "[a] cause that directly produces an event and without
which the event would not have occurred" (Black's Law Dictionary
265 [10th ed 2014]).
          In view of those competing definitions, projecting the
phrase "proximate cause" into the subject endorsement merely
would give rise to an ambiguity with respect to the scope of that
endorsement (see generally Universal Am. Corp., 25 NY3d at 680)
that still would result in coverage for defendants.   The majority
subtly suggests that any ambiguity should be construed in favor
of plaintiff because NYCTA "craft[ed] the additional insured
endorsement" and "required that the policy include [the subject]
additional insured coverage" (majority op at 16; see generally


                             - 14 -
                              - 15 -                        No. 57

State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]).
The same suggestion is buttressed by reference to the post hoc
plea of the drafter of at least one of the subject endorsements
that such amendment intended to "'preclu[de] . . . coverage for
an additional insured's sole negligence'" (majority op at 17,
quoting Coverage for Additional Insured-Vendors: Recent Markdowns
by ISO and New York's High Court, 19-36 Mealey's Litig. Rep. Ins.
11 [2005]).8   The rule, however, remains that ambiguous policy
language is interpreted in favor of the insured (see Lend Lease,
28 NY3d at 682; White, 9 NY3d at 267; Breed v Insurance Co. of N.
Am., 46 NY2d 351, 353 [1978]).9   To that end, even assuming that


     8
       As noted (see supra at 2 n 1), two endorsements are
relevant to this matter. One such endorsement, on which
plaintiff relies, bears both form No. CG 20 26 07 04 and an
Insurance Services Office (ISO) copyright. The other such
endorsement, on which defendants (and the majority) rely, bears
form No. IFG-I-0160 1100, but has no ISO copyright.
     The point remains that the intent of the drafter is
immaterial to this coverage analysis (see supra at 13 n 7). The
majority's reference to extrinsic evidence of what apparently was
ISO's intent to "'preclude[] coverage for an additional insured's
sole negligence'" (majority op at 17, quoting Coverage for
Additional Insured-Vendors: Recent Markdowns by ISO and New
York's High Court, 19-36 Mealey's Litig. Rep. Ins. 11 [2005]) in
form No. CG 20 26 07 04, however, is misplaced for an additional
reason: such evidence does not apply to the endorsement on which
defendants and the majority rely. That amendment does not bear
an ISO copyright, meaning that it apparently was prepared by a
different drafter and therefore may have been based on intent
different from that underlying the "CG" form in question.
     9
       There is no contention that the rule that an ambiguity in
the policy should be construed against the insurer that drafted
that compact does not apply on the ground that "the basic concept
and terms [of the endorsement] originated with [defendants], that
[defendants are] sophisticated and [were] instrumental in

                              - 15 -
                              - 16 -                          No. 57

"cause," as it is used in the subject endorsement, is ambiguous,
we still must conclude that the policy contains coverage for
defendants with respect to the underlying matter inasmuch as the
accident was "produce[d]" by and "would not have occurred"
(Black's Law Dictionary 265 [10th ed 2014] [defining "proximate
cause"]) absent BSI's operation of its excavation equipment (cf.
Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980] ["There
are certain instances . . . where only one conclusion may be
drawn from the established facts and where the question of legal
cause may be decided as a matter of law"], rearg denied 52 NY2d
784 [1980]).
          Third, and finally, the majority misses the mark with
its conclusion that the reference to "liability" in the subject
endorsement modifies the "caused . . . by" language of that
amendment (see majority op at 11-12).10   Under the plain language
of the subject endorsement, the phrase "liability for 'bodily
injury'" articulates one of the classes of risks covered by that
part of the policy, whereas the phrase "caused . . . by [BSI's]


crafting various parts of the agreement, and that [defendants],
while not an insurance company, had equal bargaining power and
acted like an insurance company by maintaining a self-insured
retention" (Cummins, Inc. v Atlantic Mut. Ins. Co., 56 AD3d 288,
290 [1st Dept 2008]).
     10
        As (twice previously) noted, the endorsement on which
defendants (and the majority) rely provides, in relevant part,
that defendants are additional insureds under the policy "with
respect to liability for 'bodily injury' . . . caused, in whole
or in part, by [BSI's] acts or omission . . . ." (emphasis
added).

                              - 16 -
                                - 17 -                           No. 57

acts or omissions" speaks to the circumstances that trigger that
coverage (see Worth Constr. Co. v Admiral Ins. Co., 10 NY3d 411,
415-416 [2008]).     If plaintiff wanted the endorsement to limit
coverage to circumstances in which the named insured (here, BSI)
was negligent, then it should have written the policy to say as
much.     To the extent the endorsement does not unambiguously
confer additional insured status upon defendants in this instance
(cf. supra at 8-10), the majority's analysis ignoring what at
"worst" (from the prospective of the putative additional
insureds) is an ambiguity in that language overlooks our
teachings that, when there is doubt with respect to the meaning
of an insurance policy, an insurer should revise the policy so as
to leave no doubt as to the meaning of that contract.11


     11
       There are two notable (and intentional) omissions from my
review of this coverage question. First, I have not compared the
phrase "arising out of" -- which this Court has treated in, among
other cases, Maroney v New York Cent. Mut. Fire Ins. Co. (5 NY3d
467, 472 [2005]) -- to the phrase "caused . . . by." This case
turns on our interpretation of the instant "caused . . . by"
language, not on the question whether the "caused . . . by"
phrase should or should not have the same meaning as the "arising
out of" language we addressed in Maroney and in other cases. It
suffices to say that interpreting the phrases "arising out of"
and "caused . . . by" differently does not compel the conclusion
that the latter phrase incorporates a negligence requirement.
     Second, I also have not treated plaintiff's contention that
the volunteer doctrine does not apply here (see Dillon v U-A
Columbia Cablevision of Westchester, 100 NY2d 525, 526 [2003];
National Union Fire Ins. Co. v Ranger Ins. Co., 190 AD2d 395, 397
[4th Dept 1993]; cf. 132 AD3d at 133-134 [addressing the cause of
action for subrogation that plaintiff asserted against NYCTA,
which has no bearing on this case to the extent defendants are
covered under the policy]). I agree with the majority's implicit
conclusion (see majority op at 18-19) that the question whether

                                - 17 -
                                - 18 -                        No. 57

                  The Effect of the Majority's Ruling
           In multi-jurisdictional commercial transactions, New
York law frequently is chosen as the governing law based on its
stability and predictability.    Insurance coverage matters of this
nature perhaps are a small subset of the expansive field of
commercial litigation.
           Similar to "typical" commercial litigation, however,
insurance coverage disputes should be resolved through law that
is certain and clear.    The majority's approach could threaten the
stability and sureness of our bedrock rules of insurance policy
interpretation.    Indeed, it is the benefit of certainty in our
rules of interpretation, not concern with the occasionally
"unanticipated result[]" (majority op at 17) to which the
application of those rules may lead, that should be of paramount
importance here.
           By extension, that approach could also threaten the
likely millions of consumers of insurance in this state by
providing a rationale to read into insurance contracts language
that is not there.    "[I]nsurance in modern society affects an
overwhelming part of the population" (68 NY Jur 2d Insurance §
1).   To that end, in furtherance of the public interest (see
generally Curiale v Ardra Ins. Co., 88 NY2d 268, 276 [1996]), the
legislature has, either of its own accord or through latitude



to apply the volunteer doctrine here is best left to the
Appellate Division.

                                - 18 -
                               - 19 -                           No. 57

afforded the current and former incarnations of the State
Insurance Department (see Insurance Law § 301), protected
consumers who purchase insurance -- such as "auto," "home," and
"life" policies -- for everyday needs.    Indeed, that deliberative
body has either enacted or countenanced numerous protective rules
with respect to minimum standards and mandatory policy language
(see e.g. Insurance Law article 34; 11 NYCRR part 52; 11 NYCRR
part 60).
            For its part, this Court has long promoted certainty
and safeguard in crafting its rules of policy interpretation.
Insurance contracts are to be viewed through the eyes of the
average consumer and deciphered not through "legalese," but by
means of plain and common speech.    Moreover, where there is
uncertainty with respect to the existence of coverage, we fall on
the side of the insured and conclude that coverage exists.
            The majority's decision obviously impacts the subject
endorsement and similar policy language.    We hope, however, that
its reach will not extend more broadly and that its effect will
not be destructive.    At best, the decision reflects a departure
from, but not a disavowal of, long-held precepts of policy
construction.




                               - 19 -
                                - 20 -                           No. 57

*   *   *   *   *   *   *   *     *      *   *   *   *   *   *   *   *
Judgment appealed from and order of the Appellate Division
brought up for review reversed, with costs, plaintiff's motion
for summary judgment on the first cause of action granted,
defendants' cross motion for summary judgment on the first cause
of action denied, and case remitted to the Appellate Division,
First Department, for further proceedings in accordance with the
opinion herein. Opinion by Judge Rivera. Chief Judge DiFiore
and Judges Garcia and Wilson concur. Judge Fahey dissents and
votes to affirm in an opinion in which Judge Stein concurs.

Decided June 6, 2017




                                - 20 -
