Hutchinson Water Co. v. United States Fidelity & G. Co.

• Decision Date: 18 December 1957
• Docket Number: No. 5625.,5625.
• Citation: 250 F.2d 892
• Parties: HUTCHINSON WATER COMPANY, Inc., Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

250 F.2d 892 (1957)

HUTCHINSON WATER COMPANY, Inc., Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a corporation, Appellee.

No. 5625.

United States Court of Appeals Tenth Circuit.

December 18, 1957.

J. Richards Hunter, Hutchinson, Kan. (Harry H. Dunn, William B. Swearer, Hutchinson, Kan., on the brief), for appellant.

W. A. Kahrs, Wichita, Kan. (Robert H. Nelson and Patrick F. Kelly, Wichita, Kan., on the brief), for appellee.

Before MURRAH, PICKETT and LEWIS, Circuit Judges.

MURRAH, Circuit Judge.

In this declaratory action, the appellee, United States Fidelity & Guaranty Company, seeks a declaration of nonliability under its "Comprehensive General-Automobile Liability" policy, in which it insured the appellant, Hutchinson Water Company, against damages because of injury to or destruction of property "caused by accident". Exercising its diversity jurisdiction, the trial court gave summary judgment to the effect that the loss asserted against the insured in state court litigation was not "caused by accident" as those terms of coverage are used in the policy, and the appellee was therefore not obligated to defend the state court suits or pay any judgments awarded therein. The Water Company has appealed.

The trial court's summary judgment is based upon the pleadings in this case, and the incorporated state court pleadings, to the effect that under its water franchise with the City of Hutchinson, Kansas, appellant was required to maintain water in its mains in certain quantities and at certain prescribed pressures for the use of the Municipal Fire Department. While the appellee's policy was in force, lightning struck a building in the mercantile district of Hutchinson, owned by one Roher. The lightning came without warning and was unaccompanied by a storm or previous electrical disturbance. Because of the inflammable character of the merchandise contained in the building, the fire spread rapidly and beyond control of the Fire Department. Earl E. Roher and Earl E. Roher Transfer and Storage Company filed separate suits in the District Court of Kansas against the Water Company, each alleging that their property loss was aggravated and increased by the negligent failure of the Water Company to supply water of sufficient quantity and pressure. The Water Company notified the appellee-insurer of the state court actions and called upon it to defend them and to pay any judgment rendered against it as a result thereof. Appellee declined liability under its policy or to defend the suits on the grounds that the asserted loss against insured was the natural and probable consequence of its negligence, hence not caused by accident within the meaning of the policy.

Some complaint is made of sufficiency of the pleadings as the factual basis for the summary judgment. But, all of the facts pleaded, including the Water Company's answer, are taken as true. No other material facts are suggested. We think these facts clearly presented the issue of coverage and that the case was ripe for summary judgment.

Following Kansas law, we have defined the critical word "accident" used in policies of this kind, to describe coverage as "an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force"; stating that "the natural and ordinary consequences of a negligent act do not constitute an accident." Neale Const. Co. v. U. S. Fidelity & Guaranty Co., 10 Cir., 199 F.2d 591, 593. See also Midland Const. Co. v. U. S. Cas. Co., 10 Cir., 214 F.2d 665; Gilliland v. Ash Grove Lime & Portland Cement Co., 104 Kan. 771, 180 P. 793; Duncan v. Perry Packing Co., 162 Kan. 79, 174 P.2d 78. Making application of this dictionary definition in the Neale case, we said that a claim for damages for the cost of repairing telephone wires which broke and sagged because negligently spun and spliced, did not state a cause of action for damages "caused by accident" within the coverage of the policy. As against the contention that the breaking of the wires was the accidental cause of the asserted damages, we observed that the claim was not for damages for broken wires, but for the additional cost of repairing the defective installations; and moreover, the breaking of the wires was not an accident within the policy because it was the natural and probable consequence of the...