Nesher LLC v. Realm Nat'l Ins. Co.

Nesher LLC v. Realm Nat'l Ins. Co.

David W. Kenna recently convinced the Appellate Division (First Department) that the phrase "do your best" in an all risk property coverage policy was unambiguous.  In Nesher, the insured had sought to recover for water damages sustained in its vacant investment property as a result of a frozen water pipe. The insurance policy excluded loss caused by water damage resulting from a frozen pipe unless the insured did its "best to maintain heat in the building or structure."  Although summary judgment was awarded to Realm at the trial level, on appeal, the insured argued it had done its best by hiring a caretaker to look after the property, and that the phrase "do your best" was ambiguous  precluding summary judgment.  MCW&G, on behalf of Realm, pointed out that the phrase "do your best," has a definite and precise meaning: "excelling all others," "most productive" or "in the best way" (Merriam Webster  Dictionary (1994 Ed.) and that by merely hiring a caretaker without providing him with an adequate supply of heating oil or  proper instructions for maintaining heat on the premises, the insured could not have done its "best." The Appellate Division agreed with MCW&G finding that the "phrase in the policy to 'do your best' is unambiguous and has a clear and unmistakable meaning" and that the insured had failed to do its "best" under any reasonable interpretation.  Nesher's subsequent motion to file an appeal to the New York Court of Appeals was denied.