Finkelstein v. Central Mut. Ins. Co.

Decision Date12 September 1957
Citation166 N.Y.S.2d 989,8 Misc.2d 261
PartiesSimon FINKELSTEIN, Plaintiff, v. CENTRAL MUTUAL INSURANCE COMPANY, Defendant.
CourtNew York City Court

Abrams & Bleich, New York City, Henry H. Abrams, New York City, of counsel, for plaintiff.

Max J. Gwertzman, New York City, for defendant.

MAX J. WOLFF, Referee.

The case was tried before me by consent without a jury. Findings were waived. This is an action upon a comprehensive all-risk insurance policy. The plaintiff is the owner of a nine-room one-family dwelling. The policy provided coverage with exclusions as follows:

'All risks of physical loss to the property insured except as excluded:

'Coverage C--Personal Property: Coverage C applies to all personal property owned, worn or used by the named Insured and members of the named Insured's family of the same household, while in all situations anywhere in the world.

'Exclusions Under Coverage C--(e) loss or damage caused by dampness of atmosphere or extremes of temperature unless such loss or damage is directly caused by rain, snow, sleet, bursting or pipes or apparatus; moth, vermin and inherent vice; damage to property (watches, jewelry and furs excepted) occasioned by or actually resulting from any work thereon in the course of any refinishing, renovating or repairing process; * * *'

It also contained the following stipulation:

'This Company shall not be liable for loss by fire or other perils insured against in this policy caused, directly or indirectly, by:

'(i) neglect of the insured to use all reasonable means to save and preserve the property at and after a loss, or when the property is endangered by fire in the neighboring premises.'

The material facts which the plaintiff established at the trial were not substantially disputed by the defendant. It appeared that a woman employed by the plaintiff as domestic attempted to clean the carpeting covering the seven ground-floor rooms of the plaintiff's home by scrubbing it with a brush or other applicator, using a solution of household ammonia and water which she had prepared. She did this of her own initiative, without any request by the plaintiff or his wife, neither of whom was home at the time. The solution contained too much ammonia, and she scrubbed too hard, with the result that the carpeting in many places lost its original beige color, turning pink, inferentially wherever the ammonia solution was applied with too heavy a hand. Pink 'spots' of various sizes and shapes developed in all seven rooms.

Defendant has three contentions: (1) that the loss was not fortuitous and therefore not within the coverage of this inland marine insurance policy; (2) that the exclusion hereinabove quoted is applicable because the loss resulted from 'work * * * in the course of' a 'refinishing, renovating or repairing process'; and (3) that the insured, although required to do so by the policy, neglected 'to use all reasonable means to save and preserve the property at and after' the time the 'loss' occurred.

Notwithstanding the comprehensive all-risk coverage of the policy in suit, there can, of course, be no recovery here unless the plaintiff suffered a fortuitous loss. It may be conceded that the plaintiff's employee was negligent as well as inexperienced and even that the plaintiff himself was negligent in entrusting her with household responsibilities. But this inland marine insurance policy protects the insured against the consequences of his own negligence. Only fraud or intentional wrongdoing or gross negligence, such as a deliberate disregard of plainly foreseeable consequences, would defeat recovery. Bad judgment may not be equated with bad faith. Ordinarily the unexpected and unforeseen result of a voluntary act is considered an accident. As in liability insurance the insurer assumes the risk of the negligence of the insured, so in marine insurance the insured is protected against the consequences of his own conduct if unattended by fraud or design to cause damage.

It is reasonable to expect that household goods and furnishings will be generally cared for, and of course cleaned, within the home and that damage may result from negligence in the performance of such household tasks. This is one of the risks of household management. A comprehensive all-risk policy covering household goods provides protection against perils peculiar to the maintenance of a household just as the traditional marine policy insures against perils of the sea. (Cf. section 46, Insurance Law; McAllister & Co., Inc., v. Western Assurance Company of City of Toronto, 218 App.Div. 564, 218 N.Y.S. 658, and cases therein cited; Rex Roofing Company, Inc., v. Lumber Mutual Casualty Insurance Company of New York, 280 App.Div. 665, 116 N.Y.S.2d 876, a liability insurance case in which 'accident' was defined by detailed discussion and concrete application; Mellon v. Federal Insurance Co., D.C., 14 F.2d 997; Ocean Accident & Guarantee Corporation v. Penick & Ford, 8 Cir., 101 F.2d 493, 497, where it was said of the word 'accident' as used in the policy there dealt with that an 'accident' 'is not what it might mean to a scientist or one skilled in the subject involved, but what it means to the average man'.)

As these all-risk policies are generally available to householders and as their sale is not limited to specialists, the run-of-the-mill notion of what constitutes an accident is pertinent. The scientist's or technician's understanding in depth is not relevant. From the viewpoint of this plaintiff there was an accident here and a fortuitous loss, for clearly the carpeting was not deliberately exposed to damage. (Cf. Cross v. Zurich General Accident & Liability Insurance Co., 7 Cir., 184 F.2d 609, a public liability insurance policy case; Terrien v. Pawtucket Mutual Fire Insurance Co., 96 N.H. 182, 71 A.2d 742, 744, in which case the court explained that although 'it could be found that the plaintiff's action in driving his truck over the holes was deliberate, he was not so far chargeable with knowledge that the resulting breakdown was probable, as to require a finding that he deliberately incurred the loss'; Kraftsow v. Brown, 172 Pa.Super. 581, 94 A.2d 183; distinguishable is Newtown Creek Towing Company v. Aetna Insurance Company, 163 N.Y. 114, 57 N.E. 302, where damage to a vessel was caused by a 'deliberate attempt to break through a known barrier', 'a field of ice', 'the resisting power of which had been miscalculated'; there the master of the vessel 'designedly' took the risk 'of running into a perfectly apparent obstruction'.) I agree that an insured may not deliberately expose his property to a calculated risk, himself calculating and the insurance company unknowingly taking the risk. But there is no evidence, and no reason to...

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