Home Mutual Fire Insurance Co. v. Hosfelt

• Citation: 233 F. Supp. 368
• Decision Date: 30 April 1962
• Docket Number: Civ. No. 8402.
• Parties: HOME MUTUAL FIRE INSURANCE CO. v. William J. and Mary E. HOSFELT and Dorothy Lessor.
• Court: U.S. District Court — District of Connecticut

233 F. Supp. 368

HOME MUTUAL FIRE INSURANCE CO. v. William J. and Mary E. HOSFELT and Dorothy Lessor.

Civ. No. 8402.

United States District Court D. Connecticut.

April 30, 1962.

Gordon, Muir & Fitzgerald, William P. Aspell, Hartford, Conn., for plaintiff.

Steele & Maxwell, Hartford, Conn., for defendants Wm. J. Hosfelt and Mary E. Hosfelt.

Schatz, Weinstein & Seltzer, Hartford, Conn., for defendant Dorothy Lessor.

BLUMENFELD, District Judge.

The diversity of citizenship between the parties and the requisite jurisdictional amount in controversy to invest this court with jurisdiction under 28 U.S.C. § 1337, both exist to permit consideration of this case within the provisions of the Declaratory Judgment Act, 28 U.S.C. § 2201.

In this action for a declaration of non-liability, under an Owners, Landlords and Tenants Liability Policy which provides insurance protection against liability imposed upon the named insureds having an interest in certain premises, the parties have filed a stipulation of facts which incorporates, by reference, a policy OLT — 60771 of insurance issued on January 9, 1959 by the plaintiff company to the defendants William J. and Mary E. Hosfelt, covering their liability as owners of a two-family house in West Hartford, Connecticut. The other party defendant is Dorothy Lessor, of West Hartford, Connecticut.

Dorothy Lessor has brought an action in the state court seeking damages for personal injuries alleged to have been sustained on May 13, 1959 as the result of an accident caused by plaster falling from the ceiling of the bedroom in the upstairs apartment, which she occupied as the tenant in this two-family house.

The problem arises because the Hosfelts sold this house to the Maffuccis on April 30, 1959, apparently subject to the tenancy of Dorothy Lessor. (The Maffuccis have not appeared in this action and are not parties to the stipulation.) On April 30, 1959, the insurance policy was cancelled, effective as of that date, and thereafter unearned premiums in the amount of $45.64 were returned to the Hosfelts by the company. The Hosfelts seek the protection afforded by the policy, since Dorothy Lessor alleges in one count of her state court action that they were negligent in that they knew of the dangerous and defective condition of the ceiling which fell, and neither took steps to correct it nor warned their vendees, the Maffuccis, about it, knowing that she would continue to tenant the apartment.

After calling attention to what they regard as the pertinent portions of the contract:

"COVERAGE A — Bodily Injury Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person, caused by accident and arising out of the hazards hereinafter defined.

"DEFINITION OF HAZARDS

"Division 1 — Premises — Operations: The ownership, maintenance or use of the premises, and all operations necessary or incidental thereto.

"VII. POLICY PERIOD, Territory: This policy applies only to accidents which occur during the policy period within the United States of America, its territories or possessions, or Canada."

they contend that there is a gap in the protection afforded, since "No portion of the policy covers the exact situation where liability arises during the policy period and injury occurs afterward * * there is an ambiguity * * * which must * * * be resolved in favor of the insured."

But another provision in the policy specifically makes a bridge available for that period of risk which the defendants argue is necessarily unprotectable because of Clause VII's limitation of...