the next case is seven thousand one hundred seventy first street the continental casualty good morning your honor is may it please the court my name is mark rifkin on behalf of the appellant seven zero zero zero one east seventy first street this appeal concerns whether insurance coverage for damage to covered electrical and mechanical equipment located inside the appellant's insured shopping center caused by rainwater enter into the building during superstorm sandy was excluded by a narrow windstorm exclusion in the defendant's insurance policy or the policy covered damage only to cover equipment a term that was defined in the policy to be a lecturer or mechanical equipment used in the generation transmission or utilization of energy none of the electrical equipment on the roof of the shopping center such as air conditioning equipment was damaged during superstorm sandy the roof itself was not covered equipment and was not insured under the  policy there are essentially two issues that we ask the court to consider first we ask that the policy of insurance be applied literally according to the words used in the policy that words not be deleted from the exclusion and that words not be added to the exclusion we also ask that the court decide in the first instance whether the exclusion for windstorm damage applies before deciding the effect of a so called anti concurrent causation provision w that exclusion if the exclusion itself doesn't apply to the loss then the anti concurrent causation clause doesn't resuscitate the exclusion understanding your argument correctly and have me on it i'm not dispensing on the exclusion your argument is that that you have a series reading renders the words a breakdown that is caused by surplus or not and and we think there are two mistakes first the court's interpretation and the insurance companies argument the race is those words from the clause they are not those words a breakdown caused by they are not in most of the other enumerated exclusions there's twenty some exclusions and that phrase a breakdown caused by winds to say that was no great because a breakdown is defined is of a sudden with other places where it says loss or damage caused directly or indirectly by movement or so on without that preparatory phrase of brake breakdown yup that is correct that's your point and you say  efficiently and big use so when under new york law which is very strongly against be insurance company who strongly perhaps but it is that way that that is an ambiguity well two points on that your honor but you are quite correct the first point is that quite literally the language has to be interpreted the way it's written and if the exclusion requires a breakdown to apply you have to find that there was a breakdown there was no breakdown to covered equipment caused by winsto that's the first point but the second point is if there is a doubt about that if there is an ambiguity in the policy and we say there is none we don't we don't think you need to find interview with the policy but if there was ambiguity in the policy then yes your honor new york law at but as has been applied by the new york courts and in this court new york law strictly enforces the insurance policy and resolves all doubts against the insurance company so either way we think we prevail we with you as to that reading different interpretation it needs to be vacated and the case needs to be remanded to vacate the motion for summary judgment because there are other other triable issues with respect to whether this covers if there there are in fact other tribal issues and  to put that in into perspective there were two cases there were two insurance policies that covered this property and one was the insurance policy that's at issue here it was a limited purpose policy applied only to mechanical and electrical equipment there is also a general property policy with the cases were coordinated they were discovered together they were litigated together the motion for summary judgment as to the other policy which raised all the same issues except this one that motion was denied and that case is now set to be tried by the trial is well off its trial date is not into march two thousand and nineteen but the court denied all the other issues that were common between the two polic corrosion and the district court didn't deal with those so that if we agree with you on the first point even on this policy specifically we would send us agree that we should send these  back for the district court to decide when you make arguments why they don't apply but that's not the sort of argument we should be deciding of hers and it need not be addressed here we actually think that when it goes back to the district court with clarification on this narrow issue which was the only difference between the two policies we think the district court will have no problem applying its analysis from the other cases it's sufficient for you to agree with my interpretation of the policy to  and that they consider well only in so far as the actual analysis is concerned again i believe that the clear language of the policy literally applied provides ample support for our position but if the court were to find otherwise then the court needs to make a conclusion that the ambiguity has to be resolved against the insurance company and in favor of the insured which then leads to the same result and that the result is the same whether we do it because new all the other language that's used in the policy one of the things that we found to be particularly significant was the fact that of the twenty or so enumerated exclusions this was one of only one or two that used that phrase and so we think that it's enough to make a reasonable insured understand that coverage applies but if the court were to say that there is ambiguity then i suppose c n a could say well what did the insured understand evidence in the record for summary judgment that would permit the court to make up a contrary conclusion which we think is not completely i want to thank you very much morning and please the court richard sprog for continental casualty i want to jump right to the court's questions about ambiguity the only support an argument  based on an endorsement i should say a definition that was superseded by indorsement so those there's no conflict between cause in the definition of breakdown and caused by windstorms the breakdown definition is quite lengthy but boiled down it says physical damage to equipment because of a sudden an accidental physical loss to covered equipment direct and here there was no loss due to the wind two covered equipment the wind damage to the roof which was not covered equipment you have to back up to the insurance laws insuring clauses we pay for loss or damage caused by a cover cause a loss a cover cause loss is a breakdown to cover equipment that's just physical damage to covered equipment that's what they're claiming for they're claiming there was a breakdown to cover equipment talking about weeks and what we exclude reads and here be exclusion is different from other exclusions we say damage directly or indirectly caused by earthquake or a policy wants to cover a breakdown as a result of exclude apparelled it says so that's the wear and tear exclusion late in defect corrosion there are many other references to break down within the exclusions the reference to breakdown in the winstrol exclusion just just puts it in context and as i said the following and tell you do you have experience in evidence that it means what you say means if we disagreed do you have experience a good evidence with suit just a different meaning for this yes john which i'm sure we could come up with up against the break down policy has been around for one hundred year over a hundred years but we don't think negotiations meant by what is ambiguous evidence because if it is ambiguous evidence and there is no testimony by the parties new york tells us how we  another and equipment breakdown policy if you could break down policies a supplemental policy it's meant to cover specific things that are typically aren't covered by all responses so i'd ask the agent that broke the policy or or sort the policy on definition is simply physical damage this policy excludes loss cause directly or indirectly by physical damage to cover the quitman caused by winstone that's what we have there's no ambiguity in there and if you accept the palace argument you'd be rendering how part of the the the wording superfluous which of course can't do you'd be reading indirectly out of policy and the entire second sentence of the leading clause those two sentences have to be read together they can only occur when there are more than one peril and in this case you had there's no question that when does a but for cause i mean this building survived countless rain storms before wind damage to the roof no doubt that we damaged the  storm exclusion to say we will not paper losses in damages caused directly or indirectly by when storms but that's not what it says because of that breakdown language in the middle of the exclusion breakdown caused by one storm really break down as physical damage to different situation the wind damages some covered equipment on the roof the wind damages for that and that causes all sorts results from damage to a breakdown to covered equipment but that isn't what happened here i have to go back and start with the insur policy only covers loss of damage that you can't read the breakdown definition in isolation from the insurance for that clause of the policy it only covers loss of damage by a cover cause a loss of cover cause a loss is a breakdown the covered equipment it's a name p policy that's the only thing it covers the lead in to the exclusion also talks about loss or damage caused directly or indirectly by any of the following again it's the loss or damage for which the insured seeks coverage that those two leading causes apply to and so to take the causation element in in the windstorm exclusion and say it that it has to be direct cause one has already modified by directly or indirectly to breakdown of which you have covered because it's purely for context you are just just popping this in writing to write it differently in different ways no i don't i don't think it adds anything if you look at the exact you said direct or indirect damage caused by it but it doesn't it doesn't change the meaning of the of the of the policy if you had direct or indirect in front of caused by wind storm it would be redundant because you've already got that in the lead in close that says everything that follows is it won't remember it's loss or damage is what's excluded not the perils not the cause it's loss or damage caused by any of the following a breakdown caused by to sentence the sentence in question if you insert if you insert the language that should be inserted place of any of the following the sentence says we will not pay for loss or damage caused directly or indirectly by a sudden and accidental direct physical loss to covered equipment that is caused by wind storm or hell right right so to physical damage caused by wind storm if you're telling me that that that you sure as drafted a an ambiguous policy because the language of the exclusion mirrors the language of the inclusion and it creates a big con fusion that your courts tell us that that's to be interpreted in favor of the insured i think i think the policies abundantly clear nope nobody could pick up this provide coverage for a breakdown it sues from and excluded peril it does so it does so specifically in three or four different exclusions corrosion wear and tear because that's typically what causes an equipment breakdown so the coverage would be illusory without it so looking at it all together all of the exclusions deleting clause modifies all of the exclusions the intent is clear that any loss caused directly or indirectly or contributed to in any sequence by any of those excluded perils is excluded except where it's pacifically says will cover and so in break down but the only way you get an ambiguity is if you use the superseded that break down definition that had a causation element within it the applicable definition doesn't have a causation element it says in effect physical damage to cover the quitman caused by winstone that's what the policy excludes whether winston exclusion would apply in any way other than the way we've urged it to be interpreted and there's no there's no evidence of that in the record in any of the deposition testimony in any of the documents i don't believe there was any negotiation of these terms or interpretation or exchanges of interpretations as with or of a court who said what each interpretation was and you know i'm just trying to see because of course if the court right from the beginning knowledge there was no exchange of any language between the insured and the insurance company as to the meaning of any of the provisions certainly nothing with respect to this provision i don't believe there is any extrinsic evidence the court can can walk to work that the