27 Conn. Supp. 222 | Pennsylvania Court of Common Pleas | 1967
This is an action brought against the defendant insurance company seeking reimbursement for moneys which the plaintiff claimed
The focal point of controversy herein is whether the insurance policy issued to the plaintiff herein required the defendant to defend the earlier case brought against the present plaintiff as defendant. The policy issued covered only “Bodily Injury Liability” and applied solely to “Premises-Operations-Laundering and Dry Cleaning: Laundries-not automobile.” The bodily injury liability coverage required the defendant “[t]o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the hazards hereinafter defined.”
The complaint in the earlier case alleged: “5. During the summer of 1958, the defendant either installed new equipment or there was an improper repair of equipment upon the premises, or the equipment or some of it, became in need of repair. 6. As a result of one or more of the aforesaid factors the premises of the plaintiffs have become subject to
Defendant’s claim is that the various allegations of the complaint in the Shepard case set forth an intentional conduct and action on the part of the defendant Palace Laundry constituting a private nuisance and that these allegations did not spell out a claim of bodily injury “caused by accident.” It must be clarified that the issue involved herein has no reference to any claim of property damage. The defendant insurance company further argues that whatever bodily injury either of the plaintiffs in the Shepard case sustained did not occur on the present plaintiff’s premises. It submits that the only hazard insured against was “Division 1-Prem-ises-Operations.” This is defined to be “the ownership, maintenance or use of premises, and all operations.”
The defendant further claims that the Shepards’ complaint alleged that Norma Shepard was injured on her own property because of the continuing conduct of the defendant laundry “so as to cause or
Both parties herein, in the briefs filed, seek support for their respective claims in the recent case of Missionaries of the Company of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104. The terms of the policy in the Missionaries case is analogous in its reference to payment on behalf of the insured of damages “because of bodily injury, . . . sustained by any person, caused by accident . . . .” As this case further brings out (p. 110), this rule is practically universally recognized: “The duty to defend has a broader aspect than the duty to indemnify and does not depend on whether the injured party will prevail against the insured.” The parties accept fully the controlling principle that whether the defendant insurance company had a duty to defend the present plaintiff in the previous action depends on whether the complaint in that prior action stated facts which appeared to bring Shepards’ claimed injury within the policy coverage.
Adopting the Missionaries case, supra, as the guideline, the defendant company argues that the allegations of the complaint in the previous action do not warrant the conclusion that an allegation of bodily injury caused by accident is made. But it must be pointed out that paragraph 5 contains an allegation, in the alternative, that there was “an improper repair of equipment upon the premises.” Paragraph 6 alleges that as a result of one or more
Admittedly various other allegations of the plaintiffs’ complaint in the prior action do set forth allegations as to a private nuisance. But a fair reading thereof leads to the conclusion that the claim of damages sustained because of the private nuisance alleged relates, as set out in paragraph 14 of the complaint, to the plaintiffs’ “rights as created and existing by reason of their ownership of cm interest in land.” (Italics supplied.) The claims of damages set out in the complaint, in addition to claims for an injunction, also make a claim for damages in the sum of $5000.
As is emphasized in the Missionaries case, supra, 113, the defendant, when requested by the plaintiff herein to defend it in the action brought by the Shepards, “was called upon to exercise its judgment as to what was required of it under its contractual obligation to the plaintiff. It could either refuse to defend or it could defend under a reservation of its right to contest coverage under the various avenues which would subsequently be open to it for that purpose.” The Missionaries decision therefore makes clear that if, under the allegations of the Shepards’ complaint, a claim of bodily injury due to accident could be possibly spelled out, the
It must be conceded that the allegations of bodily injury in the prior Shepard case are tenuously set forth. And it might well have been that the claim of nervous reaction from the vibrations would not have been proven under the rule of proximate causation within the range of ordinary danger, as set out in Strazza v. McKittrick, 146 Conn. 714, 717-18. But the liberality of our pleading procedure might reasonably allow evidence to be instituted in an attempt to prove that the plaintiff Norma Shepard sustained a “bodily injury” in the sense that her nervous system had become affected by the vibrations claimed which might have resulted from “improper repair” of the laundry machinery.
But the aspect most pressed by the defendant company is that under no construction of the allegations of the complaint could an “accident” be spelled out. The Missionaries decision, supra, 110, does not go into this issue, since the facts in that case allege, in substance, that the plaintiff was injured “when he fell into the unguarded ditch which . . . [was] negligently caused and allowed to exist on the premises.” The defendant herein further raises the issue that no accident occurred on the premises of the laundry, claiming that the policy required that any accident causing bodily injury covered by the policy was required to have occurred on the premises of the laundry. But the definition of hazards in the policy itself defines premises-operations to include “all operations.”
The problem of what constitutes an “accident” under a public liability policy has been discussed in numerous cases in other jurisdictions. These cases are not in complete agreement on this point. They do, generally, accept the rule, also stated in
In addition to the Missionaries case, supra, the parties, in their briefs, have referred to certain Connecticut cases. The decisions therein are based on different factual circumstances, involving intentional acts in the operation of motor vehicles. The precise issue has been dealt with, however, in numerous cases in other jurisdictions. In Vappi & Co. v. Aetna Casualty & Surety Co., 348 Mass. 427, 428 (1965), the question was whether the defendant insurance company had a duty to defend the plaintiff under a policy wherein it was required to pay all sums which the insured became “legally obligated to pay as damages because of injury to . . . property . . . caused by accident.” In that case, the allegations of the complaint claimed, inter alia, damages for injuries caused by the insured’s negligence “in failing to take precautions to prevent the diversion of surface water and harmful results from vibrations.” Id., 431. The opinion (p. 432) gives the following definition of “accident”: “Unintended or unforeseen consequences of reckless or negligent acts, and even of intentional acts, at least if not undertaken ‘with malice or intent to injure’ the person or property hurt (see the D’Amico case, 345 Mass. 218, 223-224), may be within the definition of ‘accident.’ ”
In Taylor v. Imperial Casualty & Indemnity Co., 144 N.W.2d 856 (S.D. 1966), the action was based upon a claim that the defendant company had failed to defend the plaintiff in an action for injunctive relief and damages. The complaint in the original
Another definition of accident is set out in Hardware Mutual Ins. Co. v. C. A. Snyder, Inc., 242 F.2d 64, 68 (3d Cir. 1957): “ ‘Accident’ is a word of broad scope and includes many unfortunate occurrences not anticipated in the ordinary course of affairs. The wilful act is not embraced by the word, but the negligently-caused happening is understood to be an ‘accident.’ ” Another case in point is Koehring Co. v. American Automobile Ins. Co., 353 F.2d 993 (7th Cir. 1965), where the defendant company had refused to defend the plaintiff in a previous action on the ground that there was no accident within the terms of the policy to the plaintiff insured. Here the “accident” involved the operation of hydraulic cylinder ram jets in two concrete mixers, causing them to break down. The opinion states (p. 996): “We think it evident that in the context in which it is used in the policy provision here involved . . . the word ‘accident’ refers to the event or occurrence which produced the damages
Another case which merits citation because of its somewhat analogous fact situation is Myrtle Point v. Pacific Indemnity Co., 233 F. Sup. 193 (1963). The case involved the claimed use of malfunctioning or inadequate apparatus in a sewage disposal plant. The court therein held (p. 197) that negligent acts in using such apparatus “in absence of intent to cause harm resulting in damage, do not in and of themselves negate a causation by accident.” In Moffat v. Metropolitan Casualty Ins. Co., 238 F. Sup. 165 (1964), the defendant insurance company was being sued because of its failure.to defend the plaintiff in certain trespass actions brought against it involving smog from culm banks. Again the issue was whether the claimed property damages were caused by accident. The opinion contains a lengthy analysis of what constitutes an accident under a liability insurance policy.
In summary, therefore, it must be concluded that although the allegations of the complaint on the issue of bodily injury caused by accident are possibly gossamer thin, there was at least the possibility that the plaintiff Norma Shepard, in particular, would prove that the nervous condition she claimed resulted from the continued vibrations of the machinery on the laundry premises. As is brought out also in Moffat v. Metropolitan Casualty Ins. Co., supra, 175, if the defendant insurance company was in doubt it could have defended with the understanding that coverage was not admitted. On the
The holdings in the following cases are also in point in upholding actions against the defendant insurance companies for failure to defend a prior action brought against a plaintiff insured. Shelby Mutual Ins. Co. v. Ferber Sheet Metal Works, Inc., 156 So. 2d 748 (Fla. Dist. Ct. App. 1963); Travelers v. Humming Bird Coal Co., 371 S.W.2d 35 (Ky. 1963) ; Corbetta Construction Co. v. Michigan Mutual Liability Co., 20 App. Div. 2d 375 (N.Y. 1964) ; Murray v. Landenberger, 5 Ohio App. 2d 294 (1966); Penley v. Gulf Ins. Co., 414 P.2d 305 (Okla. 1966); American Employers Ins. Co. v. Knox-Tenn Equipment Co., 52 Tenn. App. 643 (1963); Massachusetts Bonding & Ins. Co., 400 S.W.2d 20 (Tex. Civ. App. 1965).
The evidence was that the plaintiff herein had settled the previous Shepard case brought against it by the payment of $500 to Norma Shepard, in settlement of all claims. This amount, under the circumstances, would appear to have been a reasonable settlement. In addition, the plaintiff herein seeks reimbursement for legal services incurred in defending the Shepard action. The attorney who represented the plaintiff in that action testified herein as to the services rendered. The case was settled after discussions with the trial judge, and it does not appear that trial actually was begun. The court finds that the sum of $500 would be a reason
The court, therefore, enters judgment in favor of the plaintiff in the sum of $1000 plus interest on $500 thereof from June 25,1959.