234 A.2d 640 | Conn. Super. Ct. | 1967
This is an action brought against the defendant insurance company seeking reimbursement for moneys which the plaintiff claimed *223 to have paid out in settlement of a prior suit brought against it for damages (Shepard v. PalaceLaundry Co., Superior Court, New Haven County, No. 89591) and seeking reimbursement for the expense of defending against that action. The plaintiff claims that it had taken out a manufacturers' and contractors' schedule liability policy of insurance with the defendant company covering the plaintiff's laundry operations at 49-51 Elm Street in West Haven. The complaint herein alleges that although the company was duly notified of the action brought, it refused to defend the suit, and that, as a result, the plaintiff was required to expend moneys for retaining an attorney to defend the action. It was subsequently settled for $500, paid to the plaintiff Norma Shepard.
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 *224 severe vibrations emanating from and having their source in and upon the defendant's premises." The complaint thereafter, in paragraphs 9 and 10, alleged that the plaintiff Norma Shepard may "go into a state of nervous breakdown" if the annoyances due to the claimed vibrations continued. Paragraph 15 further alleged: "As a further result of said vibration annoyance the plaintiff, Norma Shepard, has had to seek medical attention, and in the future may incur further medical expense." The complaint, in addition, made the claim that the continuing conduct of the defendant, causing or resulting in the emission of vibratory action to the plaintiffs' premises, "constitutes a private nuisance in that the plaintiffs are, have been and will continue to be injured in relation to their rights as created and existing by reason of their ownership of an interest in land."
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-Premises-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 *225 result in the emission of vibratory action to the plaintiffs' premises." The defendant points out that nowhere in the Shepards' complaint is there any allegation specifically referring to "negligence," or of any failure to warn, inspect, repair, modify or abate the condition alleged; that the complaint alleged only a continuing wilful course of intentional conduct; and that nowhere does the complaint allege the occurrence of an "accident."
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.,
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 *226 of the aforesaid factors (including improper repair of equipment) the premises of the plaintiffs Shepard became subject to severe vibrations. Paragraph 15 of the complaint alleges that as a result of said vibrations and annoyances, the plaintiff Norma Shepard has had to seek medical attention and in the future may incur further medical expense. And paragraph 9 alleges that if the annoyances continued, the plaintiff Norma Shepard would be caused to go into a state of nervous breakdown. Paragraph 11 alleges that the comfort and right of enjoyment of health of the plaintiffs are injuriously affected by the vibrations in question.
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 ownershipof an 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 *227 defendant insurance company was required to undertake a defense for the defendant in that case.
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,
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 *228 Smedley Co. v. Employers Mutual Liability Ins.Co.,
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.,
In Taylor v. Imperial Casualty Indemnity Co.,
Another definition of accident is set out in HardwareMutual Ins. Co. v. C. A. Snyder, Inc.,
Another case which merits citation because of its somewhat analogous fact situation is Myrtle Point
v. Pacific Indemnity Co.,
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 *231
other hand, "[i]f it elects not to defend, it does so at its peril. . . . One of the perils is the plasticity of modern pleading." Ibid. See also the decision rendered in the United States District Court for Connecticut, Allstate Ins. Co. v. LumbermensMutual Casualty Co.,
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. ShelbyMutual Ins. Co. v. Ferber Sheet Metal Works, Inc.,
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 reasonable *232 attorney's fee for the services rendered to the plaintiff in defending and settling the previous action.
The court, therefore, enters judgment in favor of the plaintiff in the sum of $1000 plus interest on $500 thereof from June 25, 1959.