Rochester & Southern Railroad, Inc. v. Utica Mutual Insurance

Judgment unanimously affirmed with costs. Memorandum: Plaintiff railroad obtained a policy of insurance from defendant Utica Mutual Insurance Company through codefendant Paul Garrick, Inc., insuring against loss to plaintiff’s railroad cars, tracks and for necessary expenses which would be incurred upon the derailment of a train. An endorsement to the policy provided for a maximum coverage of $43 million subject to a 30% coinsurance clause.

In its complaint, plaintiff seeks to recover $558,850 in damages to its rolling stock and right-of-way and for rerailing expenses incurred due to a derailment on September 6, 1986. Utica Mutual contends that, pursuant to this policy and consistent with the coinsurance clause, it is contractually liable to pay only $105,975.31 of plaintiff’s claim.

Supreme Court properly granted the motions of plaintiff and codefendant Garrick for summary judgment upon the complaint and the cross claim against Utica Mutual. Coinsurance clauses require the insured to maintain insurance on the property covered by the policy in an amount equal to or greater than the specified percentage of the property’s value, and stipulate that, upon the failure to do so, the insured shall be a coinsurer and bear a proportionate part of the loss (16 Couch, Insurance 2d § 62:125, at 598). The record supports the court’s finding that the amount insured is $43 million and also that plaintiff maintained a sufficient amount of insurance on the value of its property to be within the provisions of the 30% coinsurance clause. Thus, the plaintiff was entitled to recover the total amount of its claim within the terms of the *1001policy. (Appeal from judgment of Supreme Court, Monroe County, Patlow, J. — summary judgment; declaratory judgment.) Present — Callahan, J. P., Denman, Pine, Balio and Davis, JJ.