Finkelstein v. Central Mut. Ins. Co.

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

Page 989

166 N.Y.S.2d 989
8 Misc.2d 261
Simon FINKELSTEIN, Plaintiff,
v.
CENTRAL MUTUAL INSURANCE COMPANY, Defendant.
City Court of City of New York, Trial Term, New York County.
Sept. 12, 1957.

Page 991

Abrams & Bleich, New York City, [8 Misc.2d 262] 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.

Page 992

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 [8 Misc.2d 263] 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.

Page 993

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...

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9 practice notes
  • Standard Structural Steel v. Bethlehem Steel Corp., Civ. No. H-75-176
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • October 26, 1984
    ...not a technician or scientist would understand that term. Avis, supra, 195 S.E.2d at 548, citing Finkelstein v. Central Mutual Ins. Co., 8 Misc.2d 261, 166 N.Y.S.2d 989. It is an event "which happens by chance ..., unexpectedly or without known cause, one which is undesigned," or unplanned.......
  • Kraemer Bros., Inc. v. U.S. Fire Ins. Co., No. 76-096
    • United States
    • United States State Supreme Court of Wisconsin
    • May 30, 1979
    ...part III, pp. 351-4; Landis, 'All Risks Insurance,' 1951 Insurance Law Journal 709-16; Finkelstein v. Central Mut. Ins. Co. (1957), 8 Misc.2d 261, 166 N.Y.S.2d 989; Gillespie & Co. of N. Y. v. Continental Ins. Co. (1958), 14 Misc.2d 110, 176 N.Y.S.2d 3 Sec. 802.08(3), Stats.1975 provides: "......
  • Avis v. Hartford Fire Ins. Co., No. 27
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 11, 1973
    ...term 'all risks.' See e.g., British & Foreign Marine Ins. Co. v. Gaunt, 2 A.C. 41 (1921); Finkelstein v. Central Mutual Insurance Co., 8 Misc.2d 261, 166 N.Y.S.2d 989; 5 Appleman; Insurance Law and Practice, § In the case of British & Foreign Marine Ins. Co. v. Gaunt, supra, plaintiff sued ......
  • City of Amsterdam v. Goldreyer, Ltd., No. 93 CV 5012 (SJ).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 13, 1995
    ...not the type of negligence that is indemnified by insurance policies, even "all-risk" policies. Finkelstein v. Central Mutual Ins. Co., 8 Misc.2d 261, 166 N.Y.S.2d 989, 993 (N.Y.Civ. Ct.1957) (only fraud or intentional wrongdoing or gross negligence such as deliberate disregard for plainly ......
  • Request a trial to view additional results
9 cases
  • Standard Structural Steel v. Bethlehem Steel Corp., Civ. No. H-75-176
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • October 26, 1984
    ...not a technician or scientist would understand that term. Avis, supra, 195 S.E.2d at 548, citing Finkelstein v. Central Mutual Ins. Co., 8 Misc.2d 261, 166 N.Y.S.2d 989. It is an event "which happens by chance ..., unexpectedly or without known cause, one which is undesigned," or unplanned.......
  • Kraemer Bros., Inc. v. U.S. Fire Ins. Co., No. 76-096
    • United States
    • United States State Supreme Court of Wisconsin
    • May 30, 1979
    ...part III, pp. 351-4; Landis, 'All Risks Insurance,' 1951 Insurance Law Journal 709-16; Finkelstein v. Central Mut. Ins. Co. (1957), 8 Misc.2d 261, 166 N.Y.S.2d 989; Gillespie & Co. of N. Y. v. Continental Ins. Co. (1958), 14 Misc.2d 110, 176 N.Y.S.2d 3 Sec. 802.08(3), Stats.1975 provides: "......
  • Avis v. Hartford Fire Ins. Co., No. 27
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 11, 1973
    ...term 'all risks.' See e.g., British & Foreign Marine Ins. Co. v. Gaunt, 2 A.C. 41 (1921); Finkelstein v. Central Mutual Insurance Co., 8 Misc.2d 261, 166 N.Y.S.2d 989; 5 Appleman; Insurance Law and Practice, § In the case of British & Foreign Marine Ins. Co. v. Gaunt, supra, plaintiff sued ......
  • City of Amsterdam v. Goldreyer, Ltd., No. 93 CV 5012 (SJ).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 13, 1995
    ...not the type of negligence that is indemnified by insurance policies, even "all-risk" policies. Finkelstein v. Central Mutual Ins. Co., 8 Misc.2d 261, 166 N.Y.S.2d 989, 993 (N.Y.Civ. Ct.1957) (only fraud or intentional wrongdoing or gross negligence such as deliberate disregard for plainly ......
  • Request a trial to view additional results

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