First-Party Wear and Tear Exclusion
200 Court Street LLC v. Wesco Ins. Co., 2019 WL 3207539, 2019 N.Y. Slip Op. 31945(U) (Queens Co. Sup. Ct. May 20, 2019)
This case involved a first-party property insurance dispute in which Wesco Insurance Company denied a claim for wind damage to the façade/roof of a commercial structure. Although the policy covered wind damage, it excluded coverage for wear and tear. After Wesco’s independent adjuster and engineer inspected the property and found no evidence of sudden or accidental wind damage, coverage was denied.
Wesco argued in its motion for summary judgment that the damage was caused by deterioration, proved by photographs and the expert opinion of a licensed engineer who had opined that the damage had taken decades to manifest due to prolonged exposure to weather. The engineer’s opinion was supported by historical photographs of the premises from 2013, which reflected similar rusted and corroded conditions. There were also multiple patches in the facade that further proved the long-term condition. The engineer further concluded that the wind speed on the date of the loss was no more than 47 miles per hour, which was not strong enough to damage the façade.
The court determined that “the photographs taken of the damage do not support plaintiff’s claim of sudden or accidental wind damage.” In light of the evidence presented, the court held that Wesco presented sufficient proof to warrant summary judgment in its favor.
The decision is one of only a few addressing the wear and tear exclusion in a first-party property insurance policy.
This case was reported in the PLRB Frontlines, July 31, 2019 edition.
Wesco Insurance Company was represented by partners Kevin F. Buckley and Daniel M. O’Connell.