Avis v. Hartford Fire Ins. Co., 7228DC797

• Decision Date: 22 November 1972
• Docket Number: No. 7228DC797,7228DC797
• Citation: 16 N.C.App. 588,192 S.E.2d 593
• Parties: Dwight E. AVIS and wife, Margaret C. Avis v. The HARTFORD FIRE INSURANCE COMPANY, a corporation.
• Court: North Carolina Court of Appeals

Page 593

192 S.E.2d 593

16 N.C.App. 588

Dwight E. AVIS and wife, Margaret C. Avis v. The HARTFORD FIRE INSURANCE COMPANY, a corporation.

No. 7228DC797.

Court of Appeals of North Carolina.

Nov. 22, 1972 Certiorari Allowed by Supreme Court Jan. 18, 1973.

Bennett, Kelly & Long, P.A. by Robert B. Long, Jr., Asheville, for plaintiff appellees.

Williams, Morris & Golding by William C. Morris, Jr., Asheville, for defendant appellant.

HEDRICK, Judge.

It is generally recognized that the liability of an insurer under an 'all risk' policy is limited to losses resulting from a fortuitous event. Annot., 88 A.L.R.2d 1124 (1963). Thus the critical question raised by this appeal is whether the loss in issue was occasioned by a fortuitous event.

A fortuitous event is an event dependent on chance. Restatement of Contracts § 291, comment a at 430 (1932). Thus, fortuitous is synonymous with accident. Kirkley v. Menimack Mutual Insurance Company, 232 N.C. 292, 59 S.E.2d 629 (1950). An 'all risk' policy obligates the insurer to pay for loss caused by a fortuitous and extraneous event, but does not obligate the insurer to pay for loss or damage likely to happen because of the nature and inherent qualities of the property insured. Therefore, to recover under this policy of insurance, plaintiffs must establish not only that a loss occurred, but that it was fortuitous, i.e., that it resulted from a risk as opposed to being an ordinary and probable consequence of the inherent qualities of the surfaces to be painted. Glassner v. Detroit Fire and Marine Insurance Company, 23 Wis.2d 532, 127 N.W.2d 761 (1964).

In the present case, the trial court's conclusion that the loss, 'resulting from the fact that all of the paint on the wood paneling and woodwork herein could not be removed and that the areas from which paint had been removed could not be painted and from the staining and mottling of the said wood paneling and woodwork was a fortuitous event and happening occurring in January of 1966' is simply not supported by the evidence or the findings of fact.

Plaintiff, Margaret C. Avis, testified:

'Because of the finish to this wall, or to these walls, the paint wouldn't stay on, and the remover made it even worse.'

'Nothing had been done to these walls other than a finish put on them, to my knowledge. There had been some kind of a finish put on them. We couldn't seem to get the paint to stick to that finish even though we applied it over and over.'

'As to whether I relate...