Hardware Mut. Cas. Co. v. Gerrits

• Decision Date: 12 May 1953
• Citation: Hardware Mut. Cas. Co. v. Gerrits, 65 So.2d 69 (Fla. 1953)
• Court: Florida Supreme Court
• Parties: HARDWARE MUT. CAS. CO. v. GERRITS.

Page 69

65 So.2d 69

HARDWARE MUT. CAS. CO. v.GERRITS.

Supreme Court of Florida, Special Division A.

May 12, 1953.

Brown, Dean & Hill, Miami, for appellant.

Raphael K. Yunes, Miami Beach, for appellee.

JONES, Associate Justice.

This cause comes before this Court upon an agreed statement of facts presenting a question on the proper interpretation of the word 'accident' as used in an insurance policy.

The Hardware Mutual Casualty Company, Defendant in lower Court and Appellant here, insured Edward J. Gerrits, Plaintiff in lower Court and Appellee here, according to the terms and conditions of a policy of insurance which, insofar as it is pertinent to the issues in this case contained the following insuring agreement:

'Coverage B. Property Damage Liability.To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined.'

'Definition of hazards: Division 1.Operations and Premises (Manufacturers' and Contractors' (a) All operations during the policy period which are necessary or incidental to the ownership, maintenance or use of the premises and (b) the ownership, maintenance or use of the premises'.

While the foregoing insurance agreement was in force and effect, Plaintiff, owner of the subject property, secured the services of one Thomas J. Kelly, a Registered Surveyor, who staked out the lot and thereafter, Plaintiff constructed a building on the premises.It is to be noted that Plaintiff was an experienced contractor and builder by profession.

Subsequently, Plaintiff sold and conveyed the property, with improvements thereon, to one Phil Koffman.

Approximately, three years thereafter, Plaintiff was notified by Robert H. Fatt, Jr., owner of the contiguous lot, that the building erected by Plaintiff encroached upon his adjacent property and that by reason of said encroachment, he suffered great damage and made claim against Plaintiff for the alleged loss which Plaintiff paid in the amount of $1000.Plaintiff notified Defendant insurance company of the aforesaid claim, as required by the policy, and thereafter, Defendant denied all liability under provisions of the policy herein quoted upon the contention that the damage, if any, as claimed by Plaintiff was not the result of an 'accident'.

Plaintiff contends that at no time did he or his employees knowingly or intentionally construct the building in such a manner as to encroach upon the adjoining property and the encroachment occurred without foresight or expectation on the part of Plaintiff.

In a suit filed by Plaintiff--insured for a Declaratory Judgment, the lower Court held that, under the foregoing stated circumstances, the Plaintiff was entitled to recover on the policy upon the theory that the encroachment...