QUESTION OF FACT WHETHER PLAINTIFF ACTED TO MITIGATE ITS DAMAGES FROM THE BREAKDOWN OF EQUIPMENT IN THIS BUSINESS INTERRUPTION INSURANCE CASE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined there was a question of fact about whether plaintiff did enough to mitigate damages stemming from the two-day breakdown of a concrete mixer. Plaintiff manufactured and sold precast concrete products:

… [D]efendant relied upon a policy provision that required plaintiff to reduce its losses by undertaking efforts to “[m]ake up for lost business within a reasonable period of time” and “[m]ake use of every reasonable means to reduce or avert loss, including . . . [w]orking extra time or overtime.” Defendant argued that plaintiff failed to make up for the lost production by scheduling extra shifts or weekend work and, thus, failed to mitigate its losses as required by the policy.

Like any other policy provision, mitigation requirements in business interruption insurance policies must be enforced according to their terms … . Here, plaintiff’s president testified that it could not use extra shifts during the work week to make up for lost production due to the nature of its manufacturing process, and that various constraints related to that process and plaintiff’s labor force made it so difficult to schedule weekend work that plaintiff rarely did so. Plaintiff thus limited most of the weekend work that it did schedule to small projects requiring only a few employees. Viewing the evidence in the light most favorable to defendant, we find that the reasonableness of plaintiff’s decision to make up for the lost production during its normal work hours rather than by scheduling overtime shifts on subsequent weekends, as well as the effect of this decision on the amount of its damages, present factual issues that must be resolved by a factfinder … . Binghamton Precast & Supply Corp. v Liberty Mut. Fire Ins. Co., 2020 NY Slip Op 02214, Third Dept 4-9-20