875 Forest Ave. Corp. v. Aetna Cas. & Sur. Co.

• Citation: 322 N.Y.S.2d 53,37 A.D.2d 11
• Parties: 875 FOREST AVE. CORP., Plaintiff-Respondent, v. The AETNA CASUALTY AND SURETY CO., Defendant-Appellant.
• Decision Date: 15 June 1971
• Court: New York Supreme Court Appellate Division

Page 53

322 N.Y.S.2d 53

37 A.D.2d 11

875 FOREST AVE. CORP., Plaintiff-Respondent, v. The AETNA CASUALTY AND SURETY CO., Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

June 15, 1971.

John T. McDonald, New York City, of counsel (J. Robert Morris, New York City, attorney), for defendant-appellant.

Raymond A. Werchen, New York City, for plaintiff-respondent.

Before STEVENS, P.J., and CAPOZZOLI, McGIVERN, TILZER and MACKEN, JJ.

PER CURIAM:

In this declaratory judgment action plaintiff seeks a declaration that the defendant insurance company is obligated to defend (pursuant to a standard owners', landlords' and tenants' liability policy) on behalf of plaintiff any action or actions brought against it as a result of a certain occurrence of July 16, 1966 and further that defendant is obligated to pay any judgment which may be rendered against plaintiff in any action or actions arising as a result of the incident of July 16, 1966. The defendant has disclaimed liability for the reason that it claims plaintiff violated a condition of the policy which requires the insured to give written notice of an accident 'as soon as practicable'. Trial Term determined that there was no violation, and under the circumstances, the notice given was timely. We agree with the well reasoned decision of Trial Term.

The facts herein are not in dispute. On July 16, 1966, a three year old girl, the daughter of a tenant occupying an apartment on the fourth floor of the premises owned by plaintiff, fell from the front window of the apartment and was killed. Two days thereafter, the president of the plaintiff, while making one of his regular visits to the building was informed of the incident by the caretaker of the building. The president (Mr. Francis) called at the apartment on that day but found no one home. There was testimony establishing the fact that the child had been seen on prior occasions leaning out of the window, apparently calling to passersby with whom she was acquainted. Mr. Francis was unaware of the child's practice prior to July 18, 1966. Very shortly after this unfortunate occurrence, the mother vacated the apartment without making any complaint to the plaintiff. Subsequently, the apartment was rerented and no repairs were made for the new tenant nor were repairs requested. There is no testimony that plaintiff was aware of any defective condition existing prior to the incident.

The first notice that plaintiff received concerning any claim of liability against it was by letter dated September 13, 1967 from the mother's attorney. The plaintiff then, promptly informed the defendant of the claim and the events of July 16, 1966.

The question presented on this appeal is whether the plaintiff was obligated to report the incident of July 16, 1966 immediately upon its discovery of the fact that the child had fallen from the window of its building or whether under the circumstances of this case the plaintiff's notice, given promptly after it first received a claim, was given 'as soon as practicable.'

As stated above, Trial Term, in a well considered decision, found in favor of plaintiff. In reaching it decision, it noted that while various terms are defined in the policy, the word 'accident' is not one of them. In construing the section of the policy requiring an insured to give notice of accident 'as soon as practicable', Trial Term was properly guided by the 'reasonable expectation and purpose of the ordinary business man when making an ordinary business contract.' Arthur A. Johnson Corporation v. Indemnity Ins. Co., 7 N.Y.2d 222, 227, 196 N.Y.S.2d 678, 682, 164 N.E.2d 704, 706. Therefore, the Court came to the conclusion that it was the insured's duty to report an accident 'when circumstances are such that it would appear to the insured as a prudent man that an accident occurred for which he may be liable or may be sued.' In reaching its conclusion, Trial Term made particular reference to Ripepi v. American Ins. Co., D.C., 234 F.Supp. 156, aff'd 2 Cir., 349 F.2d 300, 302 wherein the Court stated:

'The record clearly indicates that notice was given to the insurance company as soon as Ripepi acquired information indicating that the accident was caused by something on his premises and not on the truck. Thus, it was given 'as soon as practicable.' It would be an unusual man who would regard himself as bound to report an accident he had observed or heard about unless there was about it something which might render him liable.'

We agree with the dissent that the cases relied upon by Trial Term and by the plaintiff may be factually distinguishable from the case at bar. But that does not mean that the principle inherent in various of those decisions does not here apply. Implicit in a number of the cases where late notice was excused is the principle that mere knowledge that an accident has occurred does not always give rise to a duty upon the insured to report such accident to his insurer. The cases cited in the dissenting opinion refer to certain of the situations where late notice was excused. But, those are not the only situations where late notice may be excused. The rule, as applicable to the case at bar is succinctly set forth in 31 N.Y.Jur.Insurance § 1281 pp. 81--82, as follows: 'It is generally recognized that the insured may be excused for a delay or failure in giving the required notice to the insurer where it appears that, acting as a reasonable and prudent person, he believed that he was not liable for the accident.' This case falls squarely within such rule. Plaintiff's knowledge of the incident at the time was not such as to lead it to believe that an accident occurred for which he may or could have been liable. There was nothing in the manner in which the accident occurred which would have suggested the possibility of a liability claim against plaintiff, and we believe it would be unfair (under the provisions of the subject policy) to charge plaintiff in these circumstances with the duty of giving notice when all it knew was simply that an injury occurred on its premises.

The dissent urges that out decision here allows 'an insured * * * to report only those accidents in which in its judgment legal liability is possible.' But our decision does not allow the insured to make such decision in its unfettered discretion. The insured's decision to give notice of accident is governed by the overriding standard of what a reasonable man would do in the circumstances. Moreover, a different conclusion than here reached might burden an insured with the onerous responsibility of...