March 8, 1996
Appeal from the Supreme Court, Jefferson County, Gilbert, J.
Present — Pine, J.P., Wesley, Callahan, Davis and Boehm, JJ.
Amended order unanimously reversed on the law without costs, motion denied, cross motion granted and complaint dismissed. Memorandum: On February 1, 1994, a fire caused substantial damage to a two-story farmhouse owned by plaintiff and Richard Branch as tenants by the entirety. At the time of the fire, the farmhouse and its contents were insured under a homeowner's insurance policy issued by defendant. The policy contained an exclusion "for loss which results from an act committed by or at the direction of an insured and with the intent to cause a loss". Additionally, the policy provided that it is void if, before or after a loss, an insured has engaged in misrepresentation, concealment or fraud regarding material facts.
At an examination under oath, Richard Branch testified that he did not intentionally start the fire. Thereafter, however, he was indicted for and convicted of, inter alia, arson in the third degree in connection with the fire.
Plaintiff submitted proofs of loss and, when defendant denied coverage, commenced this action to recover the insurance proceeds. After joinder of issue, plaintiff moved for partial summary judgment on the issue of liability, asserting that she is entitled to the insurance proceeds because she is innocent of wrongdoing and fully complied with the terms of the policy. Defendant cross-moved for summary judgment dismissing the complaint. Supreme Court granted plaintiff's motion and denied defendant's cross motion. We reverse.
The policy contains an exclusion from coverage for a loss caused by an intentional act committed by "an insured", as opposed to "the insured". We conclude that defendant has established that the exclusion applies because the claim arose out of the intentional acts of Richard Branch, "an insured" under the policy ( see, Allstate Ins. Co. v Mugavero, 79 N.Y.2d 153, 164; see also, Allstate Ins. Co. v Roelfs, 698 F. Supp. 815, 822; cf., Reed v Federal Ins. Co., 71 N.Y.2d 581). Contrary to the contention of plaintiff and upon our examination of the policy, we perceive no ambiguities regarding either the definition of an insured or the scope of the exclusions under the policy.
Lastly, in light of our determination, we do not address the remaining contention of defendant.