The Fourth Department, reversing Supreme Court, overruling Fourth Department precedent, determined causes of action stemming from a 2009 home burglary should not have been dismissed as barred by the two year statute of limitation. The term “date of loss” in the policy was interpreted to mean the date of the claim denial, not the date of the burglary:
Plaintiff commenced this action more than two years after the 2009 theft. Interpreting the phrase “date of loss” as the date on which the theft occurred, defendant contends that the action is time-barred under the terms of the policy. Plaintiff, on the other hand, interprets the phrase “date of loss” as the date on which the claim was denied and, as a result, contends that the action was timely commenced. We agree with plaintiff. Despite cases holding that “date of loss” means the date of the underlying catastrophe, including cases from this Department (see Baluk v New York Cent. Mut. Fire Ins. Co., 114 AD3d 1151; Klawiter v CGU/OneBeacon Ins. Group, 27 AD3d 1155), the Court of Appeals has found a distinction between the generic phrase “date of loss,” and the term of art “inception of loss” (see Medical Facilities v Pryke, 95 AD2d 692, 693, affd 62 NY2d 716; Proc v Home Ins. Co., 17 NY2d 239, 243-244, rearg denied 18 NY2d 751; Steen v Niagara Fire Ins. Co., 89 NY 315, 322-325). As the Second Circuit noted in Fabozzi v Lexington Ins. Co. (601 F3d 88, 91), those cases have not been overruled or disavowed in any way.
Indeed, as the 1st Department recognized in Medical Facilities, “nothing in [Proc] suggests an intention to alter [the] general rule” … , which is “that an action for breach of contract commences running at the time the breach takes place” … . Thus, only the very specific “inception of loss” or other similarly “distinct language” permits using the catastrophe date as the limitations date … . Here, the policy did not contain the specific “inception of loss” or other similarly distinct language, and we thus disavow our decisions in Baluk and Klawiter to the extent that they hold otherwise.
Inasmuch as ” [a]mbiguities in an insurance policy are to be construed against the insurer’ ” … , we conclude that the two-year limitations period contained in the policy did not begin to run until “the loss [became] due and payable” … . Lobello v New York Cent. Mut. Fire Ins. Co., 2017 NY Slip Op 05543, 4th Dept 7-7-17
INSURANCE LAW (DATE OF LOSS MEANS THE DATE OF THE DENIAL OF THE CLAIM, NOT THE DATE OF THE EVENT TRIGGERING THE CLAIM, CAUSE OF ACTION NOT BARRED BY TWO YEAR STATUTE OF LIMITATIONS 4TH DEPT)/CIVIL PROCEDURE (INSURANCE LAW, STATUTE OF LIMITATIONS, DATE OF LOSS MEANS THE DATE OF THE DENIAL OF THE CLAIM, NOT THE DATE OF THE EVENT TRIGGERING THE CLAIM, CAUSE OF ACTION NOT BARRED BY TWO YEAR STATUTE OF LIMITATIONS 4TH DEPT)/STATUTE OF LIMITATIONS (INSURANCE LAW, DATE OF LOSS MEANS THE DATE OF THE DENIAL OF THE CLAIM, NOT THE DATE OF THE EVENT TRIGGERING THE CLAIM, CAUSE OF ACTION NOT BARRED BY TWO YEAR STATUTE OF LIMITATIONS 4TH DEPT)