The New York Supreme Court recently weighed in on what constitutes “reasonable care” to maintain heat in the context of a first-party insurance policy exclusion requiring such reasonable care. In Michael Zimmerman v. Leatherstocking Cooperative Insurance Company, CV-23-0362, 2024 NY Slip Op 02113 (April 18, 2024), the Plaintiff was in the process of selling his home in Saratoga Springs, New York. The house was insured under a homeowners policy issued by Leatherstocking Cooperative Insurance Company. On January 2, 2019, a real estate broker arrived at the house and discovered extensive water damage. Plaintiff, who had left for an extended vacation a month prior, notified Leatherstocking of the loss.

It was later determined that the damage occurred when a second-floor radiator pipe had frozen and burst. The Policy covered damage arising from frozen pipes but excluded losses “while the residence [was] vacant [or] unoccupied (including temporary absence)” unless the Plaintiff had “used reasonable care to…maintain heat in the building or manufactured home; or…shut off the liquid supply and completely empt[ied] the system or domestic appliance.” Leatherstocking denied coverage on the basis that the residence was unoccupied, and Plaintiff had failed to exercise reasonable care to either turn off the water or maintain heat. Plaintiff filed suit alleging that Leatherstocking breached the insurance contract.

On review of Plaintiff’s appeal from a denial of partial summary judgment, the Court first discussed the appropriate burdens of proof. As the moving party, Plaintiff had the burden of proving that “no exclusion precluded coverage,” which was not to be confused with the carrier’s burden of establishing an applicable exclusion at trial. The Court explained that the “ultimate burden of proof at trial plays no part in the assessment of whether there are relevant factual issues to be presented.”

The Court went on to find that Plaintiff failed to demonstrate an absence of material facts on whether reasonable care was taken to maintain heating while the home was unoccupied. Although presenting evidence that the home was insulated, the heating system was operational, and thermostats were set to 55 degrees, there was contradictory evidence on whether the boiler malfunctioned and with regard to the scope of the agreement for Plaintiff’s realtor to monitor his home. Thus, despite what appeared to be a well-developed record, the Court reaffirmed the trial court’s denial of Plaintiff’s motion for partial summary judgment.

The Zimmerman case demonstrates that “reasonable care” will continue to be defined on a case-by-case basis. However, requiring a Plaintiff to prove the inapplicability of a policy exclusion may make it more challenging for a moving party to prevail at the summary judgment stage. Insurance carriers should continue to ensure there is a factually developed record and work to incorporate clear and concise policy language to avoid ambiguities and unintended coverages for losses.