Tonkin v. California Ins. Co. of San Francisco, Inc., 62 N.E.2d 215 (N.Y. 1945). · Go Syfert
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Tonkin v. California Ins. Co. of San Francisco, Inc., 62 N.E.2d 215 (N.Y. 1945). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 1981 · …those damages which an ordinary individual would reasonably and naturally regard as incidental to or flowing from the hazard insured against. ✓
86 citation events (12 in the last 25 years) across 16 distinct courts.
Strongest positive: New Hampshire Ins. Co. v. MF Global Fin. USA Inc. (nyappdiv, 2022-03-17)
Treatment trajectory · 1946 → 2026 · click a year to view as-of
1946 1986 2026
Top citers, strongest first. 10 distinct citers. How cited ↗
cited Cited as authority (rule) New Hampshire Ins. Co. v. MF Global Fin. USA Inc.
N.Y. App. Div. · 2022 · confidence medium
Co. of San Francisco, Inc. , 294 NY 326, 329 [1945]).
discussed Cited as authority (rule) Medidata Solutions Inc. v. Federal Insurance Company
2d Cir. · 2018 · confidence medium
Co. of San Francisco, 294 N.Y. 326, 328-29 (Ct. App. 1945).1 18 19 Medidata brought suit, claiming that its losses from an email “spoofing” attack2 were 20 covered by, inter alia, a computer fraud provision in its insurance policy with Federal Insurance. 21 The provision covered losses stemming from any “entry of Data into” or “change to Data 22 elements or program logic of” a computer system.
discussed Cited as authority (rule) In Re Viking Pump, Inc. and Warren Pumps, LLC Insurance Appeals
Del. · 2016 · confidence medium
Co. of San Francisco, 294 N.Y. 326 , 62 N.E.2d 215, 216 (1945) (noting the "well settled principle ‘that if a policy of insurance is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the policy holder and against the company’ ”) (citation omitted) (quoting Hartol Prods.
cited Cited as authority (rule) New Hampshire Insurance v. MF Global, Inc.
N.Y. App. Div. · 2013 · confidence medium
Co. of San Francisco, Inc., 294 NY 326, 329 [1945]).
cited Cited as authority (rule) New Hampshire Insurance v. MF Global, Inc.
N.Y. App. Div. · 2013 · confidence medium
Co. of San Francisco, Inc., 294 NY 326, 329 [1945]).
discussed Cited as authority (rule) (TAN) WORLD TRADE CENTER PROPERTIES, L.L.C., SILVERSTEIN PROPERTIES, INC., SILVERSTEIN WTC MANAGEMENT CO., L.L.C., 1 WORLD TRADE CENTER, L.L.C., 2 WORLD TRADE CENTER, L.L.C., 4 WORLD TRADE CENTER, L.L.C., 5 WORLD TRADE CENTER, L.L.C., WESTFIELD WTC, L.L.C., WESTFIELD CORPORATION, INC., WESTFIELD AMERICA, INC., AND THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, DEFENDANTS-COUNTER-CLAIMANTS-COUNTER-DEFENDANTS-APPELLANTS-CROSS-APPELLEES, UBS WARBURG REAL ESTATE INVESTMENTS INC., WELLS FARGO BANK MINNESOTA, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF GMAC COMMERCIAL MORTGAGE SECURITIES, INC. MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2001-WTC, AND GMAC COMMERCIAL MORTGAGE CORPORATION, DEFENDANTS-COUNTER-CLAIMANTS-COUNTER-DEFENDANTS-CROSS-APPELLEES v. HARTFORD FIRE INSURANCE COMPANY AND ROYAL INDEMNITY COMPANY, COUNTER-DEFENDANTS-APPELLEES, ST. PAUL FIRE & MARINE INSURANCE CO., COUNTER-DEFENDANT-APPELLEE-CROSS-APPELLANT, SR INTERNATIONAL BUSINESS INSURANCE CO., LTD., PLAINTIFF-COUNTER-DEFENDANT-INTERVENOR, ALLIANZ INSURANCE COMPANY, COPENHAGEN REINSURANCE CO., EMPLOYERS INSURANCE OF WAUSAU, FEDERAL INSURANCE COMPANY, GREAT LAKES REINSURANCE (UK) PLC., GULF INSURANCE COMPANY, HOUSTON CASUALTY CO., INDUSTRIAL RISK INSURERS, LEXINGTON INSURANCE CO., CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON, QBE INTERNATIONAL INSURANCE LIMITED, SWISS REINSURANCE CO. UK LTD., TIG INSURANCE CO., TOKIO MARINE AND FIRE INSURANCE CO., TRAVELERS INDEMNITY COMPANY, TWIN CITY FIRE INSURANCE CO., WÜRTTEMBERGISCHE VERSICHERUNG AG AND ZURICH AMERICAN INSURANCE CO., COUNTER-DEFENDANTS. SR INTERNATIONAL BUSINESS INSURANCE CO., LTD., PLAINTIFF-COUNTER-DEFENDANT, WORLD TRADE CENTER PROPERTIES, L.L.C., SILVERSTEIN PROPERTIES, INC., SILVERSTEIN WTC MANAGEMENT CO. L.L.C., 1 WORLD TRADE CENTER, L.L.C., 2 WORLD TRADE CENTER, L.L.C., 4 WORLD TRADE CENTER, L.L.C., 5 WORLD TRADE CENTER, L.L.C., WESTFIELD WTC, L.L.C., WESTFIELD CORPORATION, INC., WESTFIELD AMERICA, INC., AND THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, DEFENDANTS-COUNTER-CLAIMANTS-APPELLANTS, UBS WARBURG REAL ESTATE INVESTMENTS INC., WELLS FARGO BANK MINNESOTA, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF GMAC COMMERCIAL MORTGAGE SECURITIES, INC. MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2001-WTC, AND GMAC COMMERCIAL MORTGAGE CORPORATION, DEFENDANTS-COUNTER-CLAIMANTS v. THE TRAVELERS INDEMNITY COMPANY, COUNTER-DEFENDANT-APPELLEE, ALLIANZ INSURANCE COMPANY, COPENHAGEN REINSURANCE CO., EMPLOYERS INSURANCE OF WAUSAU, FEDERAL INSURANCE COMPANY, GREAT LAKES REINSURANCE (UK) PLC, GULF INSURANCE COMPANY, HARTFORD FIRE INSURANCE COMPANY, HOUSTON CASUALTY CO., INDUSTRIAL RISK INSURERS, LEXINGTON INSURANCE CO., CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON, QBE INTERNATIONAL INSURANCE LIMITED, ROYAL INDEMNITY COMPANY, ST. PAUL FIRE & MARINE INSURANCE COMPANY, SWISS REINSURANCE CO. UK LTD., TIG INSURANCE CO., TOKIO MARINE AND FIRE INSURANCE CO., TWIN CITY FIRE INSURANCE CO., WÜRTTEMBERGISCHE VERSICHERUNG AG, AND ZURICH AMERICAN INSURANCE CO., COUNTER-DEFENDANTS
2d Cir. · 2003 · confidence medium
Co., 294 N.Y. 326 , 62 N.E.2d 215, 216-17 (1945) (applying proximate cause test to hold that covered risk of fire, rather than excluded risk of collision was cause of loss, where blinding smoke from fire caused driver to collide with another car).
discussed Cited as authority (rule) World Trade Center Properties, LLC v. Hartford Fire Insurance
2d Cir. · 2003 · confidence medium
Co., 294 N.Y. 326 , 62 N.E.2d 215, 216-17 (1945) (applying proximate cause test to hold that covered risk of fire, rather than excluded risk of collision was cause of loss, where blinding smoke from fire caused driver to collide with another car).
cited Cited as authority (rule) Lessard v. Metropolitan Life Insurance
Me. · 1989 · confidence medium
Co., 294 N.Y. 326 , 62 N.E.2d 215, 216 (1945).
cited Cited as authority (rule) Levinson v. Aetna Casualty & Surety Co.
N.Y. App. Div. · 1973 · confidence medium
Co. of San Francisco, 294 N. Y. 326, 328, 329 ).
discussed Cited "see, e.g." Great Northern Insurance v. Dayco Corp. (2×)
S.D.N.Y. · 1986 · signal: see also · confidence low
Paul Fire & Marine Insurance Co., 404 F.Supp. 978, 985 (S.D.Ohio 1975); see General American Transportation Corp. v. Sun Insurance Office, Ltd., 369 F.2d 906, 908 (6th Cir.1966); Kraemer Bros., Inc. v. United States Fire Insurance Co., 89 Wis.2d 555, 570, 578 , 278 N.W.2d 857, 863-64 (1979); 18 Couch on Insurance Second § 74:721 at 1026; see also Tonkin v. California Insurance Co., 294 N.Y. 326, 329 , 62 N.E.2d 215, 217 (1945) (holding that a fire insurance policy which excluded coverage due to collision only excluded a loss in which collision was “the primary and exclusive cause”).
Retrieving the full opinion text from the archive…
Samuel N. Tonkin, Appellant,
v.
California Insurance Company of San Francisco, Inc., Respondent
New York Court of Appeals.
Jun 7, 1945.
62 N.E.2d 215
1945 N.Y. LEXIS 792
Samuel Sumner Goldberg and Irving Hatterer for appellant. John L. Fletcher for respondent.
Dye.
Cited by 56 opinions  |  Published
Dye, J.

For purposes of this controversy it is undisputed that while the plaintiff was driving his car in the second or[*328] fast lane of traffic on Queens Boulevard in the city of New York near the intersection of 69th Street, he noticed that his car was “ smoking and burning under the dashboard ”. As he attempted to get his vehicle under control by applying the brake and pulling over to the right side, a gust of smoke came up from the dashboard, and he collided with another vehicle which was standing still waiting for the traffic signal to change. The plaintiff’s vehicle was damaged to the extent of $515.30, divided into a fire loss of $38.00 and a collision loss of $477,30.

The plaintiff had insured his automobile in the defendant company. • The defendant concedes the fire loss but disclaims liability for that portion of the damage resulting from the collision on the ground that it was not covered by its policy. The policy of insurance contained, among other things, a coverage clause in the following language:

“ Coverages (as hereinafter defined)
A. Comprehensive — Loss of or Damage to the Automobile,
Except by Collision but including Fire, Theft and Windstorm
*******
Insuring Agreements
(Subject to the -limits of liability, exclusions, conditions and other terms of this policy.)
Insurance Coverages Defined
Coverage A — Comprehensive — Loss of or Damage to the Automobile, Except by Collision

Any loss of or damage to the automobile except loss caused by collision of the automobile with another object or by upsc-t of the automobile or by collision of the automobile with a vehicle to which it is attached. Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset.”

The language of this policy presents a novel question of construction. In attacking the problem we are not unmindful of the well settled principle “ that if a policy of insurance is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the policy[*329] holder and against the company ” (Hartol Products Corp. v. Prudential Insurance Co., 290 N. Y. 44, 49, and cases cited therein). We know of no better guide in a situation of this sort than/ “ the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract.” (Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, 51; Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81, 84; World Ex. Bank v. Com. Casualty Ins. Co., 255 N. Y. 1, 5; Johnson v. Travelers Insurance Co., 269 N. Y. 401, 408; Hartol Products Corp. v. Prudential Insurance Co., supra; Block v. Standard Ins. Co. of N. Y., 292 N. Y. 270.) Applying this general principle it is reasonable to suppose that the plaintiff in purchasing insurance for his automobile sought coverage against the named risks and that the fair meaning and use of the word “ comprehensive ” included those damages which an ordinary individual would reasonably and naturally regard as incidental to or flowing from the hazard insured against.

The policy language is definite enough to exclude loss when collision is the primary and exclusive cause, and it would do so here except for the fact that fire — the hazard insured against — was the factor causing the driver to lose control of the vehicle and was so closely associated with it in point of time and character as to constitute the proximate producing cause of the collision.

Analogous situations have arisen under fire policies which exclude damage by explosion, wherein the courts have held that damage from an explosion caused as an incident to a fire was within the coverage clause of the policy. (Wheeler v. Phenix Ins. Co., 203 N. Y. 283.) Damage from concussion caused by explosion resulting from fire has been deemed covered. (Cook v. Continental Ins. Co., 124 So. 239 [Ala.].) Also, a policy insuring against direct loss by theft excluding collision has been held to cover collision damages occurring while a car was in possession of the police and before return to owner. (Bolling v. Northern Ins. Co., 280 N. Y. 510.)

The judgments should be reversed and judgment directed for the plaintiff in accordance with this opinion, with costs in all courts to the appellant.

[*330] Lehman, Ch. J., Loughran, Lewis and Conway, JJ., concur; Desmond and Thacher, JJ., dissent and vote to affirm on the ground that the damage to plaintiff’s automobile was from collision, a cause plainly excluded from the coverage of the policy sued upon, by specific language therein contained.

Judgment accordingly.