Bennett v. Fidelity & Cas. Co. of N.Y.
| Decision Date | 07 September 1961 |
| Docket Number | No. C-159,C-159 |
| Citation | 132 So.2d 788 |
| Parties | C. L. BENNETT, d/b/a C. L. Bennett Construction Company, Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, an Insurance Stock Company, Appellee. |
| Court | Florida District Court of Appeals |
Hall, Hartwell & Douglass, Tallahassee, for appellant.
Thompson & Morrison, Tallahassee, for appellee.
The plaintiff, C. L. Bennett, doing business as C. L. Bennett Construction Company, has appealed from an adverse final decree entered by the Circuit Court for Leon County in his suits for a declaratory decree to determine the duty of the defendant, a public liability insurance company, to defend him in an action brought against him for damages.
The liability policy issued by the defendant to Bennett contains a provision that the insurer, within the limits of the policy, would pay on behalf of the insured all sums which the insured should become legally obligated to pay as damages because of injury to or destruction of property 'caused by accident,' defend any suit against the insured alleging such injury or destruction, etc. This provision is denominated 'Coverage C' in the policy in question.
In his complaint Bennett alleged that on October 30, 1959, an action at law for damages was filed against him by Robert J. Alexander and Nina J. Alexander, co-partners doing business as Alexander Lumber & Supply Company, attaching a copy of the original and amended complaints filed by the Alexanders. Bennett alleged that he, through his attorney, sent a copy of the said amended complaint to the appellee, demanding that it assume the defense of the action under the said insurance contract, but the appellee declined to do so.
The second count of the Alexanders' amended complaint alleged the following as to their cause of action against Bennett:
'That the defendant on or prior to the 21st day of October, 1959, did negligently construct a dam or dike in a drainage ditch on the west side of Lake Bradford Road in close proximity to the plaintiffs' business premises, thereby, on said date after a heavy rain, and as a direct result of the construction of the dike or dam, causing the plaintiffs' business premises and property to become inundated and damaged; that the plaintiffs complained to the defendant, whereupon the defendant removed or breached such dam and the water immediately receded from plaintiffs' business premises and property;
'That the defendant thereafter did negligently and wilfully reconstruct the aforesaid dam and did refuse to move or breach the same during a heavy rain on October 29, 1959, and on said date the plaintiffs' business premises and property again became flooded and damaged as a direct result of the said construction of such dam and the refusal of defendant to remove or breach said dam when heavy rains began; that upon construction of the above-mentioned dam on or before the 21st day of October, 1959, the defendant knew, or should have known, that the construction of such dam would result in the flooding of the plaintiffs' business premises and property; that upon reconstruction of such dam between October 21, 1959, and October 29, 1959, the defendant knew that the construction of said dam would probably result in the flooding of plaintiffs' business premises and property and would result in damage thereof unless the dam was breached during periods of normal or heavier than normal rainfall. * * *'
The Alexanders then alleged that, as a result of Bennett's acts, certain merchandise belonging to them was damaged, their place of business was temporarily closed down, and they were put to great expense, to their damage in the amount of $1,000.
The first count in the Alexanders' amended complaint is substantially similar to the second count, with the major exception that in the first count they alleged that Bennett negligently reconstructed the dam and negligently failed to breach or remove it during the heavy rain, instead of alleging, as in the second count, that Bennett negligently and wilfully reconstructed the dam. In the third count the Alexanders realleged the quoted paragraphs of the second count, alleged that Bennett wilfully, wantonly, and with gross negligence reconstructed the dam, and they then claimed punitive damages in the amount of $10,000.
The rule seems established everywhere that a public liability carrier's duty to defend the insured in an action brought against him is to be determined from the allegations of the complaint, declaration, or other statement of the cause of action, filed in such action against the insured. See New Amsterdam Casualty Company v. knowles, Fla.1957, 95 So.2d 413, and the annotation in 50 A.L.R.2d 465, page 504.
In accordance with this rule, which is applicable in Florida, the sole question before us on this appeal is whether the Alexanders in their amended complaint in their action against Bennett alleged an 'accident' within the meaning of that term as used in the insurance contract entered into between Bennett and the appellee insurance company.
In literally hundreds of cases the courts of this nation have attempted to define the meaning of the word 'accident.' Many of the courts in their definitions have emphasized the element of the 'unexpected,' while other courts appear to recognize the popular concept of the word in their definitions so that a collision, though the result of negligence, may be considered an 'accident.' While it is not necessary for us to determine this question here, we are inclined to the view held by the latter courts that simple negligence as a causative force does not necessarily preclude a happening from being classed as an accident. Nevertheless, we are of the view that the element of the 'unexpected' remains as an important element in any true legal definition of the term.
We are aided in this determination by two recent decisions rendered by the other district courts of appeal in this state.
In the case of Christ v. Progressive Fire Insurance Company, Fla.App.1958, 101 So.2d 821, the plaintiff, the insurer, alleged that it had issued its policy of insurance insuring the defendants; that during the policy period the defendants were engaged in the general contracting business and had entered into a contract with a third party to furnish all labor and materials necessary for the re-roofing of the third party's building; that this building had four store buildings on the ground floor leased to various tenants; that the defendants had commenced the re-roofing job but suspended operations for the weekend at about 4:30 p. m. on Friday, July 27, 1956; that on the following Sunday, ...
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