I want to start by recognizing Merlin Law Group attorney Liberty Ritchie, who contributed significantly to the plaintiff’s response opposing DB Insurance Co. Ltd.’s motion for summary judgment in Acropolis Gardens Realty Corp. v. DB Insurance Company. 1 United States District Judge Ann M. Donnelly denied the insurer’s motion.
The case involves flood damage to 16 properties in Astoria, Queens, caused by Hurricane Ida. The policy generally excluded flood but added the peril back through an ISO Flood Coverage Endorsement, CP 10 65.
The dispute centered on the endorsement’s treatment of the National Flood Insurance Program. DB Insurance argued that because each building was eligible for up to $500,000 in NFIP coverage, its policy did not respond unless the damage to an individual building exceeded $500,000. Since the repair costs for each building were below that amount, DB contended that it owed nothing.
DB framed the issue as one the court could decide without a trial:
[T]his matter presents a pure question of law to be resolved by the court” because, in DB’s view, “coverage does not kick in until the loss exceeds $500,000.
Acropolis Gardens read the endorsement differently. That disagreement mattered because the ISO endorsement and the NFIP do not define “flood” the same way. The ISO endorsement is broader, while the NFIP definition adds a requirement involving two or more acres of normally dry land or two or more properties.
The plaintiff’s position was stated directly in the briefing and repeated by Judge Donnelly:
‘[The plaintiff] reads the endorsement to provide primary flood coverage subject to the stated deductible and to operate in excess where the loss would (or could) be covered by an NFIP policy….’
But this interpretation of the Other Insurance clause does not make sense in the context of the entire Flood Coverage Endorsement. The definition of ‘flood’ in the Flood Coverage Endorsement is broader than the NFIP’s definition; in the defendant’s reading, if a policyholder with an NFIP policy sustained less than $500,000 in damage per building from a flooding event that did not meet the NFIP’s definition of ‘flood,’ the policyholder would not be entitled to collect under the Policy even if the flooding event met the Flood Coverage Endorsement’s definition of ‘flood.’
That is a substantial problem with an interpretation offered as the only permissible reading of the endorsement.
The court then turned to industry custom and IRMI’s published analysis of this ISO form.
IRMI Had Already Explained How the Endorsement Works
The International Risk Management Institute, commonly known as IRMI, has long been a respected insurance-industry source for understanding policy forms and coverage issues.
IRMI’s analysis of this ISO endorsement says it is designed to “wrap around” rather than “follow” the NFIP policy and provides first-dollar coverage for coverage supplied by the commercial property policy but not by the NFIP. 2
Judge Donnelly did not simply note that guidance. She placed it within the rules governing contract interpretation and quoted the substance of IRMI’s analysis:
The Court may not ignore context and custom in interpreting an agreement, and evidence of trade practice and custom may assist a court in determining whether a contract provision is ambiguous in the first instance. As the plaintiff points out, the guidance from the International Risk Management Institute is that a Flood Coverage Endorsement ‘wraps around’ rather than ‘follows’ the NFIP policy, meaning that ‘the flood coverage endorsement applies on a first-dollar basis with respect to coverage that is provided under the commercial property policy to which it is attached but not provided under an NFIP policy….’
…The bottom line is, at a minimum, that the Other Insurance clause is ambiguous and both parties’ interpretations of the Other Insurance clause are reasonable. Accordingly, summary judgment is not appropriate.
We have written about this recurring problem before. In Can Labor Be Depreciated When Considering Actual Cash Value?, we discussed insurers adopting an interpretation of policy language that reduced the amount owed, and we again looked to IRMI’s analysis of the insurance concepts involved. We also discussed a carrier’s restrictive reading of the word “sudden” in Merlin Law Group Overturns Coverage Denial Over Interpretation of the Term “Sudden”. And in Can a Metal Roof Hail Endorsement Be Largely Illusory? A Texas Federal Court Says the Facts May Matter, we examined another dispute in which competing evidence about how an endorsement operated prevented the insurer from obtaining summary judgment.
Different language. Different coverage. Same recurring issue. An insurer’s interpretation of its policy is not necessarily the only reasonable interpretation.
Then the Facts Got in the Way
DB had another argument. Even if Acropolis Gardens’ reading of the endorsement were correct, DB argued that Hurricane Ida necessarily satisfied the NFIP definition of flood. DB described its factual proposition this way:
[I]t is ‘self-evident’ that ‘a massive storm which dropped seven inches of rain at Laguardia Airport; caused billions of dollars in damage; and resulted in 13 drowning deaths, produced generalized flooding conditions as defined by the NFIP handbook across New York City, including Queens.’
Judge Donnelly rejected the attempt to resolve that factual dispute on summary judgment:
But this is a fact-intensive inquiry that cannot be resolved on a motion for summary judgment. Indeed, the parties’ expert witnesses disagree about whether the ‘event’ met the NFIP definition of ‘flood.’
The order had already stated the governing summary judgment principle in equally direct terms:
‘A court may find for the moving party only if [it] conclude[s] that on the record presented, considered in the light most favorable to the non-moving party, no reasonable fact-finder could find in its favor.’ The question is not whether ‘the evidence unmistakably favors one side or the other but whether a fair-minded fact-finder could return a verdict for the non-moving party on the evidence presented.’
That is ultimately what happened here. DB could not turn a disputed policy interpretation and competing expert opinions into an undisputed legal conclusion. The court found the Other Insurance provision ambiguous, found both interpretations reasonable, and found a factual dispute over whether the event satisfied the NFIP definition.
When material facts remain genuinely disputed, summary judgment is not the vehicle for choosing between competing versions of those facts. The factfinder must decide them. Sometimes that means the jury has to decide.
1 Acropolis Gardens Realty Corp. v. DB Ins. Co., No. 23-cv-5251 (E.D. N.Y. Aug. 13, 2026).
2 Endorsement Analysis: Flood Coverage Endorsement (CP 10 65), IRMI. [Available online (subscription required) https://www.irmi.com/online/products/commercial-property-insurance/iso-commercial-property-forms-and-endorsements/category-10-causes-of-loss-endorsements/flood-coverage-endorsement-(cp-10-65)]
