American Casualty Company v. Timmons

• Decision Date: 08 November 1965
• Docket Number: No. 16186.,16186.
• Citation: 352 F.2d 563
• Parties: AMERICAN CASUALTY COMPANY, Plaintiff-Appellee, v. George W. TIMMONS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

352 F.2d 563 (1965)

AMERICAN CASUALTY COMPANY, Plaintiff-Appellee, v. George W. TIMMONS, Defendant-Appellant.

No. 16186.

United States Court of Appeals Sixth Circuit.

November 8, 1965.

John H. Leddy, Columbus, Ohio, for appellant, Porter, Stanley, Treffinger & Platt, Lawrence D. Stanley, Columbus, Ohio, on brief.

William E. Knepper, Columbus, Ohio, for appellee, Knepper, White, Richards & Miller, John A. Jenkins, Hugh A. Sherer, Columbus, Ohio, on brief.

Before WEICK, Chief Judge, CELEBREZZE, Circuit Judge, and CECIL, Senior Circuit Judge.

CELEBREZZE, Circuit Judge.

The Appellee, American Casualty Company, hereinafter referred to as Insurance Company, initiated this action by filing a petition for declaratory judgment wherein it sought to have determined the rights and liabilities of the parties under a comprehensive liability insurance policy issued to Appellant, George W. Timmons, hereinafter referred to as Timmons. Timmons, a general contractor, entered into a construction contract with the Department of the Army to construct a building at Wright Patterson Air Force Base, Dayton, Ohio. The contract incorporated a set of plans of the building to be constructed. The plans called for excavation near an electrict duct weighing approximately 600 pounds per lineal foot.

Timmons subcontracted the excavation work to Henry Jergens, an independent contractor. While performing the excavation, Jergens exposed the electric duct. The danger of a possible collapse was foreseen by Government inspectors who told Timmons' employees to shore the electric duct. Timmons' employees placed approximately eighteen metal and wood braces against the bank supporting the duct. After a rain the shoring gave way and the electric duct collapsed into the excavation.

The total loss to Timmons for making permanent repairs was $19,698.76. Timmons presented a claim against the Insurance Company under its comprehensive liability policy.

The pertinent provisions of that contract are:

"American Casualty Company of Reading, Pennsylvania

"Agrees with the insured, named in the declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy:

"Insuring Agreements * * *

"Coverage D-Property Damage Liability — Except automobile

"To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident. * * *

"Exclusions

"This policy does not apply:

"(a) to liability assumed by the insured under any contract or agreement except under coverages B and D, of contract as defined herein: * * *

"(g) under coverage D, to injury to or destruction of (1) property owned or occupied by or rented to the insured, or (2) except with respect to liability under sidetrack agreements, property used by the insured or (3) except with respect to liability under sidetrack agreements and the use of elevators or escalators at premises owned, rented or controlled by the named insured, property in the care, custody or control of the insured, or (4) any goods or products manufactured, sold, handled or distributed or premises alienated by the named insured, or work completed by or for the named insured, out of which the accident arises: * * *"

"No. 2 Endorsement

"Exclusion of Property Damage Liability Arising from Certain Explosion, Collapse and Underground Hazards

"The provisions of this endorsement apply only to insurance afforded by the policy for Property Damage Liability other than automobile stated as Coverage B in the Comprehensive Liability Policy.

"In consideration of the policy premium, it is agreed that, except as respects work or operations performed for the named insured by independent contractors, this policy does not apply to: * * *

"(c) collapse of or structural injury to any building or structure due to excavation, tunneling, pile driving, coffer-dam work or caisson work, or to moving, shoring, underpinning, raising or demolition of any building or structure, or removal or rebuilding of any structural support thereof; * * *"

The District Court found that the collapse of the electric duct was not an accident as the term was used in the policy and entered judgment for the Insurance Company.

The first question presented is whether the collapse of the duct was an accident within the terms of the policy. The word "accident" in an insurance policy has received many definitions which are conflicting and difficult to apply. The Ohio courts have considered and determined the scope of the word "accident" in liability policies.

In Rothman v. Metropolitan Casualty Insurance Co., 134 Ohio St. 241, 16 N.E. 2d 417, 117 A.L.R. 1169 (1938), the question was whether there was liability under the terms of a policy for damages in consequence of an accident resulting from wanton misconduct. The liability policy insured against loss resulting from claims for damages in consequence of an accident. The Court, referring to Messersmith v. American Fidelity Company, 232 N.Y. 161, 133 N.E. 432, 19 A.L.R. 876 (1921), said:

"The very pertinent statement is there made that injuries are accidental or the opposite for the purpose of indemnity according to the quality of the results rather than the quality of the causes."

The Court goes on to say:

"In our opinion, only those acts which are not motivated by an intent and purpose to injure are to be regarded as covered by the terms of this policy."

The Court stressed the fact the word negligence was not used in the policy. The word accident was said to be a more comprehensive term than negligence, and means "an unexpected happening without intention or design". Since there was no limitation implied in the policy, and the injury was not intentionally caused, then it was accidentally suffered.

Insurance Company relies upon Burns v. Employers' Liability Assurance Corp., 134 Ohio St. 222, 16 N.E.2d 316, 117 A.L. R. 733 (1938). The question there was whether death caused by amebic dysentery, contracted from drinking water infected by the breaking of a sewer pipe, was the result of a bodily injury sustained by accidental means. Because the policy covered only injuries sustained by accidental means, it was necessary for the Court to draw a distinction between injuries due to accidental external means and accidental results. "The element of accident", said the Court, "must be found to exist in the means or cause which produced the bodily injury rather than in the result". It is important to note this case was decided seven days before the Rothman case, supra.

Similar to the policy in the Burns case, supra, are Hassay v. Metropolitan Life Insurance Co., 140 Ohio St. 266, 43 N.E. 2d 229 (1942) and National Life Insurance Co. v. Patrick, 28 Ohio App. 267, 162 N.E. 680 (1927). In the Hassay case, supra, the Court said:

"The policy in question is not intended to cover all accidents. It does not cover accidental death alone. There must be accidental means shown by the plaintiff which produced the death of John Hassay."

The crucial language of the policy in Rothman is decisively different from the language in the policies in Hassay and National Life Insurance Company. The rational of Rothman is controlling in this case. The Rothman decision was cited and followed in the recent case of Munchick v. Fidelity & Casualty Co., 2 Ohio St.2d 303, 209 N.E.2d 167 (1965). There the question was whether a theft of a car was covered under an insurance policy for loss by theft. Loss was defined by the policy as accidental loss. The Court in reversing the lower Court stated:

"Defendant claims that the loss of plaintiffs\' automobile was not a `loss\' as that term is defined in the policy.

"`Loss\' means direct and accidental loss of or damage to (a) the automobile including its equipment.

"The term, `accidental,\' as used in an insurance policy means `an unexpected happening without intention or design.\' Its inclusion makes it clear that the insured is not protected against loss resulting from his own intentional and malicious acts. Rothman v. Metropolitan Casualty Ins. Co., 134 Ohio St. 241, 247, 16 N.E.2d 417, 117 A.L.R. 1169. The fact that plaintiff voluntarily delivered the automobile and an executed certificate of title to the wrongdoer would not preclude recovery under the policy. Only losses which are intentionally caused by the insured are excluded from coverage."

This Court in Bundy Tubing Co. v. Royal Indemnity, 298 F.2d 151 (C.A.6, 1962) had before it a similar policy. The Court said:

"The word `accident\' is common in most liability policies and should not be construed in this type of case as not including claims involving negligence or breach of warranty."

Corbetta Construction Co., Inc. v. Michigan Mutual Liability Co., 20 A.D. 2d 375, 247 N.Y.S.2d 288 (1964), aff'd. 15 N.Y.2d 888, 258 N.Y.S.2d 423, 206 N.E.2d 357 (1965), is similar to the facts in the present case. There the plaintiff entered into a construction contract with the United States to reconstruct and enlarge a dry dock at Brooklyn Navy Yard. To protect a Navy building the plaintiff built a cofferdam. The Navy notified plaintiff that plaintiff was failing to properly control the water pressure against the cofferdam. This hazardous condition continued until an uncontrollable break caused serious damage to a Navy building. The Insurance Company contended that since the result was not only foreseeable but foreseen, the damage was not the result of an accident. Relying on Messersmith v. American Fidelity Company, supra, the Court held that the damage "was the result of plaintiff's negligence, and as a matter of law it constituted an accident within the terms of defendant's policy".

The concept of negligence include the element of foreseeability. This does not mean the result of a...