J. D'Amico, Inc. v. City of Boston

• Decision Date: 07 December 1962
• Citation: 345 Mass. 218,186 N.E.2d 716
• Parties: J. D'AMICO, INC. v. CITY OF BOSTON, Harold R. Pfeffer and Mary L. Pfeffer and General Accident and Life Assurance Corporation, Ltd.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 716

186 N.E.2d 716

345 Mass. 218

J. D'AMICO, INC. v. CITY OF BOSTON, Harold R. Pfeffer and Mary L. Pfeffer and General Accident and Life Assurance Corporation, Ltd.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 5, 1962.

Decided Dec. 7, 1962.

Francis V. Matera, Boston, for plaintiff J. D'Amico, Inc.

Philander S. Ratzkoff, Boston, for defendant General Accident Fire and Life Assurance Corp., Ltd.

Thomas P. Russell, Somerville (Gilbert F. Dillon, Boston, with him), for defendants Harold R. Pfeffer and another.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

CUTTER, Justice.

The plaintiff (D'Amico) seeks a declaration that the defendant General Accident Fire and Life Assurance Corporation, Ltd. (General) is bound under an insurance policy issued by it to defend D'Amico against claims of two defendants named Pfeffer, asserted by them (as plaintiffs) in an action in the Superior Court (Suffolk, Law No. 531,446). The case was heard in the Superior Court upon a statement of 'all the facts material to the issues.' The trial judge concluded that the insurance policy covered 'the damages claimed by the * * * Pfeffers' and that General is bound to defend D'Amico in the Superior Court action. A final decree made declarations in accordance with these conclusions. General appealed.

On August 6, 1957, D'Amico made a contract with the city of Boston 'for the widening and paving of' Burley Street. In October, 1957, D'Amico's employees started work 'as directed by the engineer * * * for the [c]ity * * * [who] established the side line on Burley Street and set stakes for D'Amico to follow.' D'Amico then 'excavated to the line * * * set by the engineer in accordance with the line of taking by eminent domain, leaving a vertical wall of earth varying in height from * * * [zero] to * * * [six] feet above * * * the street adjoining the property of the Pfeffers [who owned two lots on Burley Street]. There were three large trees near the excavation located on the Pfeffer land * * *. Due to the * * * excavation along the line established by the engineer's stakes * * * roots of the trees * * * were uncovered. The [c]ity engineer determined that * * * the trees and the vertical wall * * * [were] unsafe and * * * restake[d] another line northerly of the original line and ordered D'Amico's employees to cut the vertical bank back at 45~ and to remove the trees. It is disputed whether * * * D'Amico had knowledge that the restaked area was outside the eminent domain taking and whether * * * [the] Preffers gave permission to the [c]ity of Boston to enter upon the restaked area. D'Amico * * * [cut] back the bank * * * [and cut] down the trees on the Pfeffers' land * * *. [D'Amico's] work * * * under the contract was * * * accepted and D'Amico was paid by the [c]ity * * * for this work in accordance with the unit price established under its contract * * *.'

About one year later D'Amico and the city were made defendants in the action at law, mentioned above, in which the Pfeffers claim 'damages caused by the alleged unlawful entry upon their land and the wrongful cutting down and carrying away of three trees and excavating and carrying away * * * earth and fill.' Count 2 of the declaration in this action seeks treble damages under G.L. c. 242, § 7. ¹

General 'had issued a policy of insurance known as a Manufacturer's and Contractor's Schedule Liability Policy to * * * D'Amico.' ² On November 27, 1958, General 'wrote a so-called 'reservation of rights' letter to D'Amico in which it proffered to defend the case subject to its right to disclaim later * * *. D'Amico did not object to this arrangement. * * * [O]n December 23, 1959, counsel for General * * * advised D'Amico's * * * counsel * * * that coverage was being disclaimed * * * and that General * * * was going to withdraw * * *.' Thereafter D'Amico's own counsel entered his appearance. The law action has not been tried.

The policy provided insurance 'only with respect to * * * so many * * * coverages * * * as are indicated by specific premium * * * charges.' Under coverage 'B. Property Damage Liability' in division '1. Premises-Operations' was shown a premium. The description of hazards under '1. Premises-Operations' said merely, 'See Schedule Attached.' General agreed under coverage 'B. Property Damage Liability' that it would 'pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to * * * property * * * caused by accident and arising out of the hazards hereinafter defined' (emphasis supplied). Division '1. Premises-Operations' was defined as '[t]he * * * use of premises, and all operations.' ³ Under the heading, 'II Defense Settlement, Supplementary Payments,' it was provided, 'With respect to such insurance as is afforded * * * for property damage liability, the company shall: (a) defend any suit against the insured alleging such injury * * * and seeking damages on account thereof, even if such suit is groundless * * *. (b) * * * (2) pay all expenses incurred by the company, all costs * * * in any such suit and all interest on the entire * * * judgment,' subject to limitations not here relevant.

1. General contends that 'even if D'Amico committed the trespass under a mistake,' the injury to the Pfeffers' property was not 'caused by accident' and that consequently, it did not arise 'out of hazards * * * defined' in the policy. 'Accident,' as used in a somewhat comparable policy, has been said to be 'a more comprehensive term than negligence, and in its common signification * * * [to mean] an unexpected happening without intention or design.' See Sheehan v. Goriansky, 321 Mass. 200, 205, 72 N.E.2d 538, 173 A.L.R. 497, holding that liability arising out of wanton or reckless conduct, as opposed to wilful or intentional conduct, was within the 'guest' coverage of a motor vehicle liability policy insuring against 'liability * * * because of bodily injury * * * caused by accident.' In New England Gas & Elec. Assn. v. Ocean Acc. & Guar. Corp., 330 Mass. 640, 643, 650-657, 116 N.E.2d 671, 678, the 'event insured against was the sudden and accidental deforming * * * of [a] turbine', which seems to have been brought about by the missetting of certain springs about one year before the injury. This court said (330 Mass. at pp. 651-653, 116 N.E.2d at pp. 679), 'The coverage was not limited to accidental means as distinguished from accidental results * * *. Although the setting of the springs was done voluntarily and knowingly by those who set them, they did not do so with any deliberate purpose or intent to damage the turbine. * * * The term accident * * * should be given its ordinary meaning as denoting an unexpected, undesigned, and unintended happening or a mishap and as including an event which, according to the common understanding of people in general, would rightly be considered as an accident.' Recovery was allowed. See Dow v. United States Fid. & Guar. Co., 297 Mass. 34, 38, 7 N.E.2d 426, 429, where the insured's death from burns was caused by immersion in a bathtub of scalding water. 'Doubtless the insured intended to turn on the water and * * * to get into the tub, but it is * * * highly improbable that he intended to immerse himself in scalding water. * * * [T]he jury could well find that the scalding resulted from unusual or unexpected heat in the water or from some slip, mistake or false judgment * * * as to the physical factors' and hence that it was accidental.

Haynes v. American Cas. Co., 228 Md. 394, 179 A.2d 900, arose under policy provisions closely similar to those in the present case. During excavation work a contractor pointed out the property line within which work was to be done. His employees by mistake encroached upon adjacent property and cut down forty-eight trees. In the circumstances the damage was held to have been 'caused by accident.' Despite the fact that the physical acts were intentional and voluntary, they were viewed as causing damage unforeseen by the actor and hence within the insurance coverage. A somewhat comparable case is Cross v. Zurich Gen. Acc. & Liab. Ins. Co., 184 F.2d 609, 610-611 (7th Cir.). There damage was held to have been 'caused by accidents,' where the insured's employees intentionally used acid in a solution for washing windows in a strength which caused unintended damage, in part at least because of insufficient precautions. ⁴ Cf. M. R. Thomason v. United States Fid. & Guar. Co., 248 F.2d 417, 419 (5th Cir.), but see Judge Rives's dissent at pp. 419-421.

General places some reliance on cases holding that certain policies do not cover an insured for a deliberate and intentional assault upon another person. See Sontag v. Galer, 279 Mass. 309, 313, 181 N.E. 182; Bowen v. Lloyds Underwriters, 339 Mass. 627, 629, 162 N.E.2d 65. In the Sontag case, this court said, 'We do not adopt the contention * * * that an injury is accidentally sustained merely because it may be accidental from the plaintiff's standpoint. It is the state of the 'will of the person by whose agency * * * [the injury] was caused' rather than that of the injured person which determines whether an injury was accidental. * * * [A]n injury caused by the willful and deliberate act of the insured * * * is one for which the * * * company would not be liable * * * under the policy. The policy does not purport to protect the insured from her own intentional and malicious acts' (emphasis supplied).

The assault cases do not require us ⁵ to treat D'Amico's trespass as 'intentional and malicious.' No fact agreed would warrant the conclusion that the trespass occurred with malice or intent to injure another. It could be inferred from the agreed facts that it was based on a mishap or mistake of a type which in the words of the New England Gas & Elec. Assn. case (330 Mass. 640, 653, 116 N.E.2d 671, 679) 'according to the common understanding * * *...