        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

989
CA 14-00139
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND VALENTINO, JJ.


DONALD WIRTH AND SONJA WIRTH,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

LIBERTY MUTUAL INSURANCE COMPANY,
DEFENDANT-APPELLANT.


LAW OFFICES OF DESTIN C. SANTACROSE, BUFFALO (ERIN K. SKUCE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH A. ERMETI, SIDNEY, FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Seneca County (Dennis
F. Bender, A.J.), entered June 11, 2013. The order, inter alia,
denied defendant’s cross motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of the cross
motion seeking to strike the claim for funeral expenses and as
modified the order is affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking to recover
under a policy of insurance issued by defendant to plaintiffs, as
named insureds, after their son was killed in a single vehicle
accident while driving a pickup truck and livestock trailer owned by
plaintiffs. Following the accident, plaintiffs reported to the police
that the vehicles, which were a total loss, were stolen by their son
and being operated without their permission at the time of the
accident. Plaintiffs’ son was not identified as a “driver” on the
declarations page of the policy. Defendant disclaimed coverage for
the loss to the vehicles and attendant towing and related expenses on
the ground that neither vehicle had collision coverage under the
policy. Defendant now appeals from an order that, inter alia, denied
its cross motion for summary judgment dismissing the complaint.

     Although defendant is correct that neither vehicle had
“collision” coverage under the policy, plaintiffs rely on a policy
provision entitled “Coverage for Damage to Your Auto,” which covers
loss caused by “other than collision.” The policy states that such
loss includes “Theft or larceny.” Although the policy does not define
those terms, defendant contends that the policy terms “theft” and
“larceny” should be equated with the definition of “larceny” in Penal
Law § 155.05 (1), thus requiring plaintiffs to establish their son’s
                                 -2-                           989
                                                         CA 14-00139

criminal intent under Penal Law standards in operating the vehicles.
We reject that contention, and instead conclude that the court
properly determined that the loss sustained herein could be deemed one
ensuing from theft.

     “Every clause or word in an insurance contract is deemed to have
some meaning” (Theatre Guild Prods. v Insurance Corp. of Ireland, 25
AD2d 109, 111, affd 19 NY2d 656), and “a policy’s terms should not be
assumed to be superfluous or to have been idly inserted” (Bretton v
Mutual of Omaha Ins. Co., 110 AD2d 46, 50, affd 66 NY2d 1020).
Contrary to defendant’s contention, in interpreting the provisions
used by defendant in its policy, we give effect to the ordinary
definition of “theft,” as distinct from “larceny,” and “are guided by
what would be the reasonable expectations and purpose of an ordinary
[consumer] in making such a contract” (Pangburn v Travelers Ins. Co.,
259 AD2d 1044, 1045, lv dismissed 94 NY2d 782). In this regard, we
note that defendant’s policy also uses, but does not define, the term
“stolen” to describe an insured’s duty to notify it of this type of
loss. It has been observed that terms such as “steal,” “robbery” and
the like are “misused even by the [criminal law] experts” (People v
Pauli, 130 AD2d 389, 393, appeal dismissed 70 NY2d 911), and we reject
defendant’s attempt to impose the technical construction and
interpretation of the Penal Law on the ordinary consumer in applying
its policy provisions. We thus conclude that the court properly
determined that the intention of the parties, as expressed by the
policy language, was that the loss at issue could be deemed to be the
result of a theft (see id.; see also Bolling v Northern Ins. Co. of
N.Y., 253 App Div 693, 694-695, affd 280 NY 510). Nevertheless, we
agree with defendant that, although the policy provides for a death
benefit, it does not provide coverage for funeral expenses, and that
plaintiffs lack standing to recover those expenses in any event (see
EPTL 5-4.3). We therefore modify the order accordingly.

     Finally, we reject defendant’s further contention that, as a
matter of law, plaintiffs did not “[p]romptly notify the police [that
the vehicles were] stolen” as required by the policy. Defendant’s
policy does not define what constitutes prompt notification and, in
view of all of the facts and circumstances, we conclude that
plaintiffs raised an issue of fact whether such notice was given
within a reasonable time (see Utica First Ins. Co. v Vazquez, 92 AD3d
866, 867).




Entered:   November 21, 2014                    Frances E. Cafarell
                                                Clerk of the Court
