43 A.D.2d 956 | N.Y. App. Div. | 1974
In an action inter alla to recover upon an insurance policy covering plaintiff’s boat, wMch sank, defendant General Insurance Company of America appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Nassau County, entered March 27, 1973, as is against it and in favor of plaintiff, upon a jury verdict. Judgment reversed insofar as appealed from, on the law, and new trial granted, with costs to abide the event. The appeal, as presented, involved no questions of fact. Plaintiff’s boat sank at the end of the 1970 boating season because hot engine exhaust gases had burned a hole in a rubber exhaust hose below the water line, permitting sea water to enter the hull. However, plaintiff and the defendant insurer differed as to exactly what had allowed the hot gases to pass through the hose without first being cooled. Plaintiff claimed it was a latent defect in an exhaust riser and, more particularly, an off-center water separation tube, which impaired the proper circulation of cooling water around the hot exhaust gases. The insurer claimed simply that an accumulation of rust inside the riser had clogged the system and prevented the free flow of cooling water. Plaintiff recovered a general verdict, but we find a reversal and new trial necessary because of errors in the charge to the jury. In our view, the trial court erred in defining' a “ latent defect ”, for wMch the policy afforded coverage. It is not simply any defect wMch is not discoverable through ordinary use and maintenance, as the trial court here charged, but, as applied to these facts, a defect or flaw, generally in the metal itself, wMch could not be discovered by any known and customary test (The Carib Prime, 63 F. 266, affd. 68 F. 254, revd. on other grounds 170 U. S. 655; The Toledo, 30 F. Supp. 93, affd. 122 F. 2d 255, cert. den. 314 U. S. 689; The Bill, 47 F. Supp. 969, affd. sub nom. Lorentzen v. Brazil Oitieica, 145 F. 2d 470; Ferrante V.
