Lead Opinion
We conclude that where an insurance policy is restricted to liability for any bodily injury “caused, in whole or in part,” by the “acts or omissions” of the named insured, the coverage applies to injury proximately caused by the named insured. The Appellate Division erroneously interpreted this policy language as extending coverage broadly to any injury causally linked to the named insured, and wrongly concluded that an additional insured may collect for an injury caused solely by its own negligence, even where the named insured bears no legal fault for the underlying harm. We reject this “but for” causation formulation of the policy and, on this appeal, reverse the Appellate Division’s denial of summary judgment in favor of the insurance company on the issue of coverage.
I.
Plaintiff, the Burlington Insurance Company, issued an insurance policy to nonparty Breaking Solutions, Inc. (BSI) listing as additional insureds defendants, the New York City Transit Authority (NYCTA) and MTA New York City Transit (MTA). Burlington denied coverage to NYCTA and MTA on the grounds that defendants were not additional insureds within the meaning of the policy because NYCTA was solely responsible for the accident that caused the injury. This appeal requires that we interpret whether the additional insured language of the policy provides coverage where the named insured is not negligent.
According to the undisputed facts, NYCTA contracted with BSI to provide equipment and personnel and for BSI to perform tunnel excavation work on a New York City subway construction project. To comply with NYCTA’s insurance requirements, BSI purchased commercial general liability insurance from Burlington with an endorsement that listed NYCTA, MTA, and
“only with respect to liability for ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ caused, in whole or in part, by:
“1. Your acts or omissions; or
“2. The acts or omissions of those acting on your behalf.”
During the coverage period, an NYCTA employee fell off an elevated platform as he tried to avoid an explosion after a BSI machine touched a live electrical cable buried in concrete at the excavation site. The employee and his spouse brought an action against the City and BSI in federal court, asserting Labor Law claims, negligence, and loss of consortium (Kenny v City of New York, 2011 WL 4460598, 2011 US Dist LEXIS 109057 [ED NY, Sept. 26, 2011, No. 09-CV-1422 (RRM)(WP)]).
Pursuant to BSI’s policy, the City tendered its defense in the federal action to Burlington, which Burlington accepted subject to a reservation of rights based on the City’s qualification as an additional insured. Burlington withdrew its reservation, however, after receiving NYCTA’s letter to BSI that it would not make payments under the contract unless Burlington agreed to provide coverage for the City’s defense and indemnification without reservation.
Meanwhile, the City impleaded NYCTA and MTA in the employee’s action and asserted third-party claims for indemnification and contribution, based on a lease between NYCTA and the City as a property owner of certain transit facilities. Under article VI, § 6.8 of that lease agreement, NYCTA agreed to indemnify the City for liability “arising out of or in connection
NYCTA tendered its defense of these claims to Burlington, also as an additional insured under the BSI policy. Burlington accepted the defense, subject to the same reservation that NYCTA qualify as an additional insured under the policy endorsement. NYCTA did not demand, and Burlington did not submit, a withdrawal of this reservation.
Discovery in the employee’s federal lawsuit revealed that NYCTA failed to identify, mark, or protect the electric cable, and that it also failed to turn off the cable power. Documents further established that the BSI machine operator could not have known about the location of the cable or the fact that it was electrified. For example, in two internal memoranda, NYCTA acknowledged its sole responsibility for the accident. In the first, the NYCTA superintendent explained that the excavation equipment operators “were operating the equipment properly and had no way of knowing that the cables were submerged in the invert.” The second memorandum concluded that “this accident was primarily due to an inadequate/ ineffective inspection process for identifying job-site hazards involving buried energized cables.” Based on these revelations, Burlington disclaimed coverage of NYCTA and MTA, asserting that BSI was not at fault for the injuries and therefore NYCTA and MTA were not additional insureds under the policy.
The district court dismissed the employee’s claims against BSI with prejudice, and the City’s third-party claims against NYCTA without prejudice. Burlington thereafter settled the lawsuit for $950,000 and paid the City’s defense costs.
Burlington commenced the instant action in state court after disclaiming coverage for NYCTA and MTA. Initially, Burlington sought a declaratory judgment that it did not owe NYCTA and MTA coverage as additional insureds under BSI’s policy. After settling the employee’s action against the City, Burlington moved to amend its complaint to add a claim for contractual indemnification as the City’s subrogee under the lease with NYCTA.
The Appellate Division reversed, denying plaintiff’s motions for summary judgment and to amend the complaint, and granting defendants’ cross motion for summary judgment on the first cause of action to the extent of declaring that defendants were entitled to coverage as additional insureds under the Burlington policy (132 AD3d 127 [1st Dept 2015]). The Court concluded that the named insured was not negligent, but “the act of triggering the explosion . . . was a cause of [the employee’s] injury” within the meaning of the policy (132 AD3d at 134-135). The Court also determined that as a consequence, it “necessarily follows that the anti-subrogation rule bars Burlington from recovering, as the City’s subrogee” (id. at 138). We granted Burlington leave to appeal (27 NY3d 905 [2016]).
II.
Burlington argues that under the plain meaning of the endorsement NYCTA and MTA are not additional insureds because the acts or omissions of the named insured, BSI, were not a proximate cause of the injury. Put another way, Burlington maintains that the coverage does not apply where, as here, the additional insured was the sole proximate cause of the injury.
In response, NYCTA and MTA also rely on the policy language, but claim that by its express terms the endorsement applies to any act or omission by BSI that resulted in injury, regardless of the additional insured’s negligence. They further argue that the Appellate Division properly concluded that BSI’s operation of its excavation machine provided the requisite causal nexus between injury and act to trigger coverage under the policy.
Burlington has the better argument. Applying the relevant legal principles to the policy language, we conclude that there
A.
“An insurance agreement is subject to principles of contract interpretation” (Universal Am. Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 25 NY3d 675, 680 [2015]). Therefore, “[a]s with the construction of contracts generally, ‘unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court’ ” (Vigilant Ins. Co. v Bear Stearns Cos., Inc., 10 NY3d 170, 177 [2008] [citation omitted], quoting White v Continental Cas. Co., 9 NY3d 264, 267 [2007]).
The policy here states, in relevant part, that an entity is “an additional insured only with respect to liability for ‘bodily injury^ . . . caused, in whole or in part, by . . . [BSI’s] acts or omissions.” The defendants argue that the endorsement does not limit liability to cases in which an insured’s acts or omissions are negligent or otherwise legally actionable. Essentially, they advocate that “caused, in whole or in part” means “but for” causation. Under their reading of the policy, all that is necessary for an additional insured to be covered is that the insured’s conduct be a causal link to the injury. This is an incorrect interpretation of the policy language, which, by its terms, describes proximate causation and legal liability based on the insured’s negligence or other actionable deed.
B.
It is well established in our law that “but for” causation, or causation in fact, is “[t]he cause without which the event could not have occurred” (Black’s Law Dictionary [10th ed 2014], but-for cause; Dan B. Dobbs et al., Torts § 186 [2d ed 2011 & June 2017 Update]; see also Koehler v Schwartz, 48 NY2d 807, 808-809 [1979]; Lee S. Kreindler et al., New York Law of Torts § 8:3 [14 West’s NY Prac Series Aug. 2016 Update]). The term refers to a link in the chain leading to an outcome, and in the abstract does no more than state the obvious, that “[a]ny given event, including an injury, is always the result of many causes” (Dobbs § 189). However, not all “but for” causes result in liability and “[m]ost causes can be ignored in tort litigation” (id.). In contrast, “proximate cause” refers to a “legal cause” to which the Court has assigned liability (Derdiarian v Felix Contr.
Here, the Burlington policy endorsement states that the injury must be “caused, in whole or in part,” by BSI. These words require proximate causation since “but for” causation cannot be partial. An event may not be wholly or partially connected to a result, it either is or it is not connected. Stated differently, although there may be more than one proximate cause, all “but for” causes bear some connection to the outcome even if all do not lead to legal liability. Thus, these words — “in whole or in part” — can only modify “proximate cause” (see Dobbs § 189; Black’s Law Dictionary [10th ed 2014], proximate cause; Hain v Jamison, 28 NY3d at 529). Defendants’ interpretation would render this modification superfluous, in contravention of the rule that requires us to interpret the language “in a manner that gives full force and effect to the policy language and does not render a portion of the provision meaningless” (Cragg v Allstate Indem. Corp., 17 NY3d 118, 122 [2011] [citation omitted]).
NYCTA and MTA argue that the language “in whole or in part” was necessary in order to make clear that the parties did not mean “solely caused by.” Without the additional language, they contend, the endorsement would provide NYCTA and MTA coverage only if BSI’s acts or omissions were solely responsible for the loss. We find this argument is unpersuasive because the phrases “caused, in whole or in part, by” and “solely caused by” are not synonymous, either by their plain meaning or legal effect (see Argentina v Emery World Wide Delivery Corp., 93 NY2d 554, 560 n 2 [1999] [the Court considered “the proximate cause” to mean “a proximate cause” since “there may be more than
The endorsement’s reference to “liability” caused by BSI’s acts or omissions further confirms that coverage for additional insureds is limited to situations where the insured is the proximate cause of the injury. Liability exists precisely where there is fault (Dobbs § 2 [“torts are traditionally associated with wrongdoing” and “(i)n the great majority of cases today, tort liability is grounded in the conclusion that the wrongdoer was at fault in a legally recognizable way”]). That the policy extends coverage to an additional insured “only with respect to liability” establishes that the “caused, in whole or in part, by” language limits coverage for damages resulting from BSI’s negligence or some other actionable “acts or omissions.”
Since the endorsement language stands on its own, we reject the parties’ and the dissent’s central premise that if the parties meant “proximate causation,” they would have included those words in the endorsement.
We similarly reject defendants’ invitation to adopt the First Department’s conclusion, based on its prior decisions, that the phrase “ ‘caused by’ ‘does not materially differ from the . . .
While we agree with the dissent that interpreting the phrases differently does not compel the conclusion that the endorsement incorporates a negligence requirement (dissenting op at 337 n 11), it does compel us to interpret “caused, in whole or in part” to mean more than “but for” causation (see Maroney, 5 NY3d at 472; Regal Constr., 15 NY3d at 39). That interpretation, coupled with the endorsement’s application to acts or omissions that result in liability, supports our conclusion that proximate cause is required here.
Case law from other jurisdictions makes a similar distinction. The Texas Supreme Court, for example, has held that “ ‘arise out of’ means that there is simply a ‘causal connection or relation,’ which is interpreted to mean that there is but for causation, though not necessarily direct or proximate causation” (Utica Natl. Ins. Co. of Texas v American Indem. Co., 141 SW3d 198, 203 [Tex Sup Ct 2004] [citation omitted]). Similarly, the Pennsylvania Supreme Court has explained that, “ ‘arising out of’ means causally connected with, not proximately caused by” (Manufacturers Cas. Ins. Co. v Goodville Mut. Cas. Co., 403 Pa 603, 607-608, 170 A2d 571, 573 [Sup Ct 1961]). Furthermore,
Here, BSI was not at fault. The employee’s injury was due to NYCTA’s sole negligence in failing to identify, mark, or deener-gize the cable. Although but for BSI’s machine coming into contact with the live cable, the explosion would not have occurred and the employee would not have fallen or been injured, that triggering act was not the proximate cause of the employee’s injuries since BSI was not at fault in operating the machine in the manner that led it to touch the live cable.
III.
The dissent’s concern that our approach could threaten the stability and sureness of our bedrock rules of insurance policy interpretation” (dissenting op at 338) is unwarranted. Our opinion adheres to contract principles that the plain and ordinary meaning applies and that the parties may freely negotiate the terms of the policy. There is also no basis for the dissent’s speculation that our decision may have a “destruc
In crafting the additional insured endorsement, NYCTA required that the policy include additional insured coverage using the latest ISO “Form CG 20 10 or equivalent.” In 2004— four years before the parties entered the construction contract and BSI purchased insurance from Burlington — the version of this ISO form was amended to replace the language “arising out of” with “caused, in whole or in part.” The change was intended to provide coverage for an additional insured’s vicarious or contributory negligence, and to prevent coverage for the additional insured’s sole negligence (see Dale, 2010 WL 4909600, *5, 2010 US Dist LEXIS 127126, *15 [“The ISO introduced this revised version of its widely used additional insured endorsements as a response to courts’ interpretations of its prior version”]). In describing its motivation for the 2004 amendment, ISO explained that it had “monitored various court decisions and found that courts in many disputes between insurers and insureds have construed broadly the phrase arising out of,” and further that “[s]ome courts have ruled that . . . the current additional insured endorsements do respond to injury or damage arising from the additional insured’s sole negligence” (Randy J. Maniloff, Coverage for Additional Insured-Vendors: Recent Markdowns by ISO and New York’s High Court, 19-36 Mealey’s Litig Rep Ins 11 [2005]). This, the ISO explained was “contrary to the original intent of the additional insured endorsements” (id.). At the heart of the amendment, therefore, was “the preclusion of coverage for an additional insured’s sole negligence” (id.).
It is therefore defendant’s interpretation that would lead to unanticipated results. The purpose of additional insured coverage is to “apportion . . . risks” (Trisha Strode, From the Bottom of the Food Chain Looking Up: Subcontractors and the Full Costs of Additional Insured Endorsements, 25 Constr Law [No. 3] 21, 21-22 [Summer 2005]). “By hiring a subcontractor, a general contractor exposes itself to . . . liability risks, including vicarious responsibility for its subcontractor’s negligence” and “[additional insured endorsements represent a way to apportion contractually these risks” (id. at 22). The rationale is to “make the party with the most control over the risk responsible for suffering the financial loss should it fail to prevent the loss”
Of course, if the parties desire a different allocation of risk, they are free to negotiate language that serves their interests. Our decision should not be interpreted to limit the venerable right to contract on terms agreed to by the parties (see Chimart Assoc. v Paul, 66 NY2d 570, 574 [1986]).
IV.
Accordingly, the judgment appealed from and order of the Appellate Division brought up for review should be reversed, with costs, plaintiff’s motion for summary judgment on the first cause of action is granted, defendants’ cross motion for summary judgment on the first cause of action is denied, and the case remitted to the Appellate Division for further proceedings in accordance with this opinion.
. The record contains two separate documents referred to as “endorsements” to the Burlington policy. Although only one lists NYCTA, MTA, and the City as additional insureds, on this appeal the parties treat all three as listed under an “endorsement.” Since the disputed causation language is identical in both documents, we adopt the parties’ reference to the source of coverage as a single “endorsement.”
. MTA is not a named party to the lease because that entity did not exist at the time NYCTA and the City entered the agreement. However, NYCTA is an affiliate of MTA pursuant to section 1263 of the Public Authorities Law, added in 1965, which renders MTA the “parent agency” of NYCTA (see Metropolitan Transit Authority, New York City Transit — History and Chronology, http://web.mta.info/nyct/facts/ffhist.htm [last visited May 2, 2017]; Public Authorities Law § 1263).
. We find the dissent’s assertion of this argument especially perplexing given that the dissent claims our analysis is flawed for applying legal meaning to the plain words contained in the endorsement (dissenting op at 334).
. The dissent argues that “the policy contains coverage for defendants with respect to the underlying matter inasmuch as the accident was produced by and would not have occurred absent BSI’s operation of its excavation equipment” (dissenting op at 336-337 [citations, internal quotation marks and brackets omitted]). This interpretation would extend coverage to any and all but-for causes, including turning on and checking the machine the morning of the accident. Certainly the plain meaning of the phrase “caused by” does not ordinarily extend so far, nor could the dissent mean for coverage to extend to such remote circumstances.
Dissenting Opinion
(dissenting). I respectfully dissent. Bedrock principles of insurance contract interpretation demand that we conclude that defendants are entitled to coverage with respect to the underlying matter as additional insureds under the policy of insurance issued to nonparty Breaking Solutions, Inc. (BSI) by plaintiff.
Facts
This declaratory judgment action overlies a personal injury action that had its genesis in the excavation of a subway tunnel in Brooklyn. In July 2008, defendant New York City Transit Authority (NYCTA) contracted with BSI for the supply of “concrete breakers” and related labor in connection with the project. Pursuant to the contract’s insurance requirements, BSI was to obtain, among other things, $2 million in general liability insurance, with respect to which NYCTA, defendant
BSI honored that commitment and obtained from plaintiff a policy of insurance that, as relevant here, provided an aggregate of $2 million in general liability coverage and contained an endorsement naming defendants as additional insureds thereunder. The subject endorsement (which bears form No. IFG-I-0160 1100) provides, in pertinent part, that defendants are additional insureds under the policy “with respect to liability for ‘bodily injury’ . . . caused, in whole or in part, by . . . [BSI’s] acts or omissions” (emphasis added).
In February 2009, nonparty Thomas P. Kenny was employed by MTA in furtherance of the subject construction project. During the course of that work, an explosion and fire occurred when the drill of one of the machines supplied by BSI contacted a live electrical cable. At the time of the explosion, Kenny was perched on a benchwall, and he fell from that elevated work location while trying to evacuate the tunnel following that incident.
Kenny and his wife subsequently commenced the underlying action (in which they asserted causes of action for common-law negligence and violation of Labor Law §§ 200, 240 [1], and 241 [6], as well as for loss of consortium) in the United States District Court for the Eastern District of New York. BSI tendered the claims in that action to plaintiff under the policy, and plaintiff agreed to defend and indemnify BSI in that matter. Although it did not immediately accept the City’s separate
Afterwards, the City commenced a third-party action against defendants seeking contractual indemnification with respect to the claims asserted against the City in the underlying action. Defendants, in turn, tendered coverage for the claims asserted against them in the third-party action to plaintiff, which agreed to defend defendants with respect thereto subject to a reservation of rights. The reservation of rights was based on plaintiffs theory that “it ha[d] not been determined whether liability was caused by acts or omissions of [BSI].”
The reservation of rights also reflected a temporary coverage position. According to plaintiff, discovery in the underlying action revealed that MTA neither disconnected the electrical cable from a power supply nor warned BSI of that cable, and that the machines supplied by BSI were operated properly at the time of the explosion. Said another way, discovery showed that the series of events giving rise to the Kennys’ injuries began with defendants’ failure to alert BSI to the “live” electrical cable, which allowed BSI to strike that cable, which, in turn, precipitated the explosion that injured Kenny.
Based on that evidence, plaintiff withdrew its defense and “disclaim [ed]” coverage for defendants in the underlying matter (cf. Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188 [2000] [“Disclaimer ... is unnecessary when a claim falls outside the scope of the policy’s coverage portion”]), reasoning that “the uncontroverted evidence establishes that the accident was solely caused by [defendants].” In the meantime, however, plaintiff continued to defend the City in the underlying action, and the claims against the City eventually were settled through a payment plaintiff made to the Kennys on the City’s behalf.
By then, plaintiff had commenced this overlying coverage action seeking judgment declaring that defendants are not entitled to coverage under the policy with respect to the underlying matter. Following motion practice, Supreme Court, among other things, entered an order and judgment granting plaintiff summary judgment and making a declaration to that effect.
“[w]hile it is true that, because [defendants] had not warned the [BSI] operator of the cable’s presence, [BSI’s] ‘act[ ]’ did not constitute negligence, this does not change the fact that the act of triggering the explosion, faultless though it was on [BSI’s] part, was a cause of Kenny’s injury. The language of the relevant endorsement, on its face, defines the additional insured coverage afforded in terms of whether the loss was ‘caused by’ [BSI’s] ‘acts or omissions,’ without regard to whether those ‘acts or omissions’ constituted negligence or were otherwise actionable” (id. at 134-135).
Given what apparently was the concern with the finality of the Appellate Division order — it left pending the counterclaim defendants asserted for attorneys’ fees pursuant to the Mighty Midgets rule
Law
“ ‘In determining a dispute over insurance coverage, we first look to the language of the policy’ ” (Lend Lease [US] Constr. LMB Inc. v Zurich Am. Ins. Co., 28 NY3d 675, 681 [2017], quoting Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 221 [2002]). “An insurance agreement,” as the ma
These core principles of insurance policy construction are not the only bedrock rules relevant to this analysis {cf. majority op at 320-321). We recently reiterated that where a “ ‘policy may be reasonably interpreted in two conflicting manners, its terms are ambiguous’ ” (Lend Lease, 28 NY3d at 682, quoting Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321, 326 [1996]; see Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986] [“The initial question ... (in determining whether there is any ambiguity in the language) is whether the agreement on its face is reasonably susceptible of more than one interpretation”]). More specifically, we have said that “[a]mbiguity in a contract arises when the contract, read as a whole, fails to disclose its purpose and the parties’ intent, or where its terms are subject to more than one reasonable interpretation” (Universal Am. Corp., 25 NY3d at 680 [emphasis added and internal quotation marks and citations omitted]).
To be sure, “parties cannot create ambiguity from whole cloth where none exists, because provisions ‘are not ambiguous merely because the parties interpret them differently’ ” (Universal Am. Corp., 25 NY3d at 680, quoting Mount Vernon Fire Ins. Co. v Creative Hous., 88 NY2d 347, 352 [1996]; see Selective Ins. Co. of Am. v County of Rensselaer, 26 NY3d 649, 655-656 [2016] [“A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the (agreement) itself, and concerning which there is no reasonable basis for a difference of opinion” (internal quotation marks omitted)]). “Rather, ‘the test to determine whether an insurance contract is ambiguous
Analysis
The Coverage Question
The application of these canons to the subject endorsement
Indeed, “the existence of coverage [for defendants as additional insureds] does not depend upon a showing that [BSI’s] causal conduct was negligent or otherwise at fault” (132 AD3d at 135). The endorsement confers additional insured status where the mere acts of the named insured cause the bodily injury complained of. If the drafter meant for such status to be contingent upon a negligent act or acts of the named insured,
Similarly, if the drafter intended that coverage under the endorsement be contingent upon a showing of proximate cause, as the majority defines that phrase (see majority op at 321-322; see also infra at 335), then the policy easily could have been written to contain that condition. Specifically, the policy could have conferred additional insured status “only with respect to liability for ‘bodily injury’ . . . [proximately] caused, in whole or in part, by . . . [the] acts or omissions [of the named insured].” Inasmuch as the endorsement contains none of the aforementioned qualifications, the cardinal rules of policy interpretation require that we conclude that defendants are entitled to coverage with respect to the underlying matter as additional insureds under the policy.
The majority, of course, has a different interpretation of the policy (see majority op at 321). I will address each of what I perceive to be the three main flaws in its analysis in turn.
First, the majority credits plaintiffs obscurative contention with respect to the relevance of the distinction between “but-for causation” and “proximate cause” to this interpretive exercise (see majority op at 321-322). As the theory begins, the phrase “caused . . . by” has a legal meaning and must refer to either “proximate cause” or “but-for” causation {see id.). As the theory continues, the policy language “caused, in whole or in part, by . . . [BSI’s] acts or omissions” (emphasis added) must refer to “proximate cause” because “ ‘but for’ causation cannot be partial” (id. at 322).
In my view, however, there is no basis to apply a legal meaning, rather than a plain and ordinary meaning, to the word “cause” in this context (see Lend Lease, 28 NY3d at 684; Universal Am. Corp., 25 NY3d at 680; cf. majority op at 323 [concluding the “plain and ordinary meaning” of the endorsement communicates a “legal concept”]). In fact, in ascertaining the plain and ordinary meaning of a provision of an insurance policy, this Court has “regarded dictionary definitions as useful guideposts” (Yaniveth R. v LTD Realty Co., 27 NY3d 186, 192 [2016] [considering a question of statutory interpretation]; see Universal Am. Corp., 25 NY3d at 681 [relying on a dictionary to determine “the common definition(s)” of various terms contained in a rider central to the coverage question in that case]). The term “cause” refers to, among other things, “something that brings about an effect or a result” (Merriam-Webster Collegiate Dictionary 196 [11th ed 2004]; see Webster’s Third New International Dictionary 356 [2002] [defining cause as, among other things, a “thing . . . that brings about an effect”]; Oxford English Dictionary, http://www.oed.com [accessed May 19, 2017] [defining cause as, among other things, “(t)hat which produces an effect; that which gives rise to any action, phenomenon, or condition”]; Oxford Living Dictionaries, https:// en.oxforddictionaries.com/definition/cause [accessed May 16, 2017] [cause is “(a) person or thing that gives rise to an action, phenomenon, or condition”]; Cambridge Dictionary, http:// dictionary.cambridge.org/us/dictionary/english/cause [accessed
Second, even if legal jargon is relevant to the meaning of “cause,” as the word is used in the subject endorsement (cf. Universal Am. Corp., 25 NY3d at 680 [“the test to determine whether an insurance contract is ambiguous focuses on the reasonable expectations of the average insured upon reading the policy and employing common speech” (internal quotation marks omitted)]; Cragg, 17 NY3d at 122 [“(i)nsurance contracts must be interpreted according to common speech”]), defendants still would qualify as additional insureds under the policy. To the extent “cause” somehow could be seen to mean “proximate cause” (cf. Royal Indem. Co. v Providence Washington Ins. Co., 92 NY2d 653, 659 [1998] [refusing to read into an insurance policy a condition that does not exist therein]), a reasonable mind could define it as something “that is legally sufficient to result in liability” (Black’s Law Dictionary 265 [10th ed 2014] [defining “proximate cause”]; see majority op at 321-322). This is not, however, to say that “proximate cause” has only one meaning; it also has been defined as “[a] cause that directly produces an event and without which the event would not have occurred” (Black’s Law Dictionary 265 [10th ed 2014]).
In view of those competing definitions, projecting the phrase “proximate cause” into the subject endorsement merely would
Third, and finally, the majority misses the mark with its conclusion that the reference to “liability” in the subject endorsement modifies the “caused . . . by” language of that amendment (see majority op at 323).
In multi-jurisdictional commercial transactions, New York law frequently is chosen as the governing law based on its stability and predictability. Insurance coverage matters of this nature perhaps are a small subset of the expansive field of commercial litigation.
Similar to “typical” commercial litigation, however, insurance coverage disputes should be resolved through law that is certain and clear. The majority’s approach could threaten the stability and sureness of our bedrock rules of insurance policy interpretation. Indeed, it is the benefit of certainty in our rules of interpretation, not concern with the occasionally “unanticipated result! ]” (majority op at 326) to which the application of those rules may lead, that should be of paramount importance here.
By extension, that approach could also threaten the likely millions of consumers of insurance in this state by providing a rationale to read into insurance contracts language that is not there, “[insurance in modern society affects an overwhelming part of the population” (68 NY Jur 2d, Insurance § 1). To that end, in furtherance of the public interest (see generally Curiale v Ardra Ins. Co., 88 NY2d 268, 276 [1996]), the legislature has, either of its own accord or through latitude afforded the current and former incarnations of the State Insurance Department (see Insurance Law § 301), protected consumers who purchase insurance — such as “auto,” “home,” and “life” policies — for everyday needs. Indeed, that deliberative body has either enacted or countenanced numerous protective rules with respect to minimum standards and mandatory policy language (see e.g. Insurance Law art 34; 11 NYCRR parts 52, 60).
For its part, this Court has long promoted certainty and safeguard in crafting its rules of policy interpretation. Insurance contracts are to be viewed through the eyes of the average consumer and deciphered not through “legalese,” but by
The majority’s decision obviously impacts the subject endorsement and similar policy language. We hope, however, that its reach will not extend more broadly and that its effect will not be destructive. At best, the decision reflects a departure from, but not a disavowal of, long-held precepts of policy construction.
Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, plaintiff’s motion for summary judgment on the first cause of action granted, defendants’ cross motion for summary judgment on the first cause of action denied, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.
. This dispute actually implicates multiple additional insured endorsements. The endorsement on which defendants (and the majority [see majority op at 317-318]) rely bears form No. IFG-I-0160 1100 and confers additional insured status upon entities with respect to which BSI had “agreed in writing in a contract . . . [would] be added as an additional insured on [the] policy.” As noted, this conferral of coverage is a qualified one; pursuant to this endorsement, such entities are entitled to coverage as additional insureds “with respect to liability for ‘bodily injury’ . . . caused, in whole or in part, by . . . [BSI’s] acts or omissions” (emphasis added).
Plaintiff relies on a different endorsement, which bears form No. CG 20 26 07 04 and which designates NYCTA as an additional insured. Similar to the “other” endorsement, this amendment provides coverage with respect to liability for bodily injury “caused, in whole or in part, by [BSI’s] acts or omissions.” Inasmuch as the coverage afforded under each such endorsement essentially is the same, for the purposes of my analysis it is of no moment that the parties rely on different amendments in seeking to establish what, if any, coverage plaintiff may owe defendants with respect to the underlying action (cf. majority op at 326).
. The Kennys’ claims against BSI were dismissed with prejudice on the Kennys’ own motion.
. Under that rule, an insured “cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations” may recover attorneys’ fees and expenses incurred in defending against the insurer’s “affirmative action ... to settle its rights” where the insured prevails in that action (Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21 [1979]).
. As noted, the endorsement on which defendants (and the majority) rely provides, in relevant part, that defendants are additional insureds under the policy “with respect to liability for ‘bodily injury’. . . caused, in whole or in part, by . . . [BSI’s] acts or omissions” (emphasis added).
. Of course, there may be more than one cause of an accident (see generally Mazella v Beals, 27 NY3d 694, 706 [2016], citing Argentina v Emery World Wide Delivery Corp., 93 NY2d 554, 560 n 2 [1999]). Based on their failure to alert BSI to the “live” electrical cable, defendants surely contributed to the happening of the accident. That fault, however, does not mean that BSI’s actions in contacting the wire were not a (non-negligent) cause of that incident.
. Although not determinative of this coverage question, this analysis is consistent with Appellate Division case law (see e.g. Aspen Specialty Ins. Co. v Ironshore Indem. Inc., 144 AD3d 606, 607 [1st Dept 2016]; Kel-Mar Designs, Inc. v Harleysville Ins. Co. of N.Y., 127 AD3d 662, 663 [1st Dept 2015]; Strauss Painting, Inc. v Mt. Hawley Ins. Co., 105 AD3d 512, 513 [1st Dept 2013], mod on other grounds 24 NY3d 578, 595-596 [2014], rearg denied 24 NY3d 1217 [2015]; National Union Fire Ins. Co. of Pittsburgh, PA v Greenwich Ins. Co., 103 AD3d 473, 474 [1st Dept 2013]; W & W Glass Sys., Inc. v Admiral Ins. Co., 91 AD3d 530 [1st Dept 2012]).
Moreover, the inconsistency of this analysis with National Union Fire Ins. Co. of Pittsburgh, PA v XL Ins. Am., Inc. (2013 WL 1944468, 2013 US Dist LEXIS 68467 [SD NY, May 7, 2013, No. 12 Civ 5007 (JSR)]) and Dale Corp. v Cumberland Mut. Fire Ins. Co. (2010 WL 4909600, 2010 US Dist LEXIS 127126 [ED Pa, Nov. 30, 2010, No. 09-1115]) is of no moment (cf. majority op at 324-325). In National Union Fire Ins. Co., the Southern District acknowledged that “the phrase ‘caused by’ does not obviously disclose a singular meaning” (2013 WL 1944468, *6, 2013 US Dist LEXIS 68467, *20)— thereby hinting at an ambiguity in the endorsement — before “adopting] the reasoning of Dale . . . and holding] that ‘caused by’ requires a showing that [the acts or] operations [of the named insured] proximately caused the bodily injury [at issue]” (2013 WL 1944468, *7, 2013 US Dist LEXIS 68467, *21). Dale, however, projected the “proximately caused” language into an endorsement substantively identical to that at issue here (see Dale, 2010 WL 4909600, *1, 2010 US Dist LEXIS 127126, *3-4) based on the “drafter’s history” (2010 WL 4909600, *7, 2010 US Dist LEXIS 127126, *21) — specifically, the “hope[ ]” of the drafter for a “narrow[ ] coverage interpretation” (see 2010 WL 4909600, *5, 2010 US Dist LEXIS 127126, *16). Based on our rules of policy interpretation, it is the policy’s language (see Lend Lease, 28 NY3d at
. Two additional points are relevant here.
First, in lieu of acknowledging and addressing the litany of dictionary definitions that compel the conclusion that defendants are entitled to coverage with respect to the underlying matter as additional insureds under the policy (see supra at 334-335), the majority advances an unavailing argumen-tum ad absurdum (see majority op at 325 n 4).
Second, the majority’s point that its “analysis [to the contrary] should come as no surprise to the industry because the drafters of the language used here intended it to mean proximate causation” (majority op at 326; see id., citing Randy J. Maniloff, Coverage for Additional Insured-Vendors: Recent Markdowns by ISO and New York’s High Court, 19-36 Mealey’s Litig Rep Ins 11 [2005]) is of no moment. Irrespective of whether the reference to “industry” pertains to the insurance industry or to the construction industry, the point remains that the intent of the drafter is immaterial to this analysis. It is what the drafter said, not what the drafter may have meant to say, that guides our review of this coverage question.
. As noted (see supra at 328 n 1), two endorsements are relevant to this matter. One such endorsement, on which plaintiff relies, bears both form No. CG 20 26 07 04 and an Insurance Services Office (ISO) copyright. The other such endorsement, on which defendants (and the majority) rely, bears form No. IFG-I-0160 1100, but has no ISO copyright.
The point remains that the intent of the drafter is immaterial to this coverage analysis (see supra at 335 n 7). The majority’s reference to extrinsic evidence of what apparently was ISO’s intent to “ ‘preclu[de] . . . coverage for an additional insured’s sole negligence’ ” (majority op at 326, quoting Randy J. Maniloff, Coverage for Additional Insured-Vendors: Recent Markdowns by ISO and New York’s High Court, 19-36 Mealey’s Litig Rep Ins 11 [2005]) in form No. CG 20 26 07 04, however, is misplaced for an additional reason: such evidence does not apply to the endorsement on which defendants and the majority rely. That amendment does not bear an ISO copyright, meaning that it apparently was prepared by a different drafter and therefore may have been based on intent different from that underlying the “CG” form in question.
. There is no contention that the rule that an ambiguity in the policy should be construed against the insurer that drafted that compact does not apply on the ground that “the basic concept and terms [of the endorsement] originated with [defendants], that [defendants are] sophisticated and [were] instrumental in crafting various parts of the agreement, and that [defendants], while not an insurance company, had equal bargaining power and acted like an insurance company by maintaining a self-insured retention” (Cummins, Inc. v Atlantic Mut. Ins. Co., 56 AD3d 288, 290 [1st Dept 2008]).
. As (twice previously) noted, the endorsement on which defendants (and the majority) rely provides, in relevant part, that defendants are additional insureds under the policy “with respect to liability for ‘bodily injury’ . . . caused, in whole or in part, by .. . [.BSI’s] acts or omissions” (emphasis added).
. There are two notable (and intentional) omissions from my review of this coverage question. First, I have not compared the phrase “arising out of” — which this Court has treated in, among other cases, Maroney v New York Cent. Mut. Fire Ins. Co. (5 NY3d 467, 472 [2005]) — to the phrase “caused . . . by.” This case turns on our interpretation of the instant “caused . . . by” language, not on the question whether the “caused . . . by” phrase should or should not have the same meaning as the “arising out of” language we addressed in Maroney and in other cases. It suffices to say that interpreting the phrases “arising out of” and “caused . . . by” differently does not compel the conclusion that the latter phrase incorporates a negligence requirement.