McGroarty v. Great Am. Ins. Co.
| Decision Date | 26 March 1975 |
| Citation | 368 N.Y.S.2d 485,36 N.Y.2d 358,329 N.E.2d 172 |
| Parties | , 329 N.E.2d 172 John McGROARTY, Respondent, v. GREAT AMERICAN INSURANCE COMPANY, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Harold H. Wolgel, Samuel Gottesman and Stephen H. Marcus, Brooklyn, for appellant.
Morton N. Wekstein, Bronxville, and Richard W. Fulfree, Yonkers, for respondent.
The central question is whether an accident occurred as the meaning of that term is contemplated in the policy of insurance issued by defendant, where plaintiff's building gradually cracked, settled and was damaged over a period of several months due to the continuing excavation and construction on certain adjacent property owned by the insured. The majority of the Appellate Division held that these events constituted an accident over defendant's arguments that there was no sudden, catastrophic event and that there was ample notice to the insured by plaintiff, of the likely consequences of its construction methods.
This action is against defendant insurance company under section 167 (subd. 1, par. (b)) of the Insurance Law, Consol.Laws, c. 28, for its refusal to satisfy a judgment obtained by plaintiff against defendant's insured.
In December, 1966 plaintiff brought suit against Colpan Realty Corporation (Colpan) and others. The complaint alleged in the third paragraph that on and after June 9, 1965 defendants erected an apartment house on a lot adjacent to the property owned by plaintiff; that in constructing a parking lot and driveway defendants raised the grade of their land along the common boundary to plaintiff's land; that this caused a great weight of stones, boulders and earth and surface waters therein contained, to press against the north wall of plaintiff's parking garage; that, together with the weight of large construction and other vehicles passing over the driveway, this lateral pressure caused severe damage, 'and a dangerous condition which constitutes a nuisance.'
In the fifth paragraph of the complaint it is alleged that through plaintiff's several warnings defendant was made aware of the damage likely to occur, but nevertheless 'trespass(ed)' upon plaintiff's property.
Colpan apprised its insurer, the defendant in the instant action, of the lawsuit and forwarded to its insurer the summons and complaint. Defendant disclaimed any coverage for damage caused by willful trespass, but offered Colpan a 'gratuitous' defense of the action which Colpan refused. As the trial progressed the court allowed plaintiff to amend its complaint so as specifically to allege negligence. Defendant insurer was not notified of this amendment. A judgment based on a finding of negligence was ultimately rendered against all defendants in the amount of $84,000 and defendant, Colpan's insurer, refused to pay.
This refusal prompted the present action by plaintiff against Colpan's insurer under section 167 (subd. 1, par. (b)) of the Insurance Law. Defendant alleged in its answer that it had never received notice of an accident; that the original complaint forwarded to it was grounded in trespass; that the acts complained of were alleged to be willful; that coverage existed only for accidents; that it was not apprised of the amendment of the complaint to include a cause of action for negligence until six months after the trial; and, further, that of several policies issued to Colpan during 1965 and 1966 the one with the highest limits was not in effect at the time the injury was said to have occurred.
It was established, and goes uncontroverted, that in the fall or early winter of 1965 plaintiff started complaining to Colpan; that in December, 1965 or January, 1966 plaintiff pointed out cracks in its garage wall to an officer of Colpan and that there was water seepage.
In the instant action, upon plaintiff's motion for an order dismissing each of the defenses, Special Term ruled that issues of fact were present including that concerning the application of the term 'accident'. Special Term held that 'the answer to whether an accident within the meaning of the policy did occur can be gotten only by an examination of the facts, and * * * these facts cannot be determined on this motion.' Two of the policies in question insured against liability for 'all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property including the loss of the use thereof caused by accident'. The somewhat more restrictive wording in the policy providing the highest limits insured against liability for 'all sums which the insured shall become legally obligated to pay as damages because of property damage to which this section applies caused by accident and arising out of the ownership, maintenance and use of the premises and all operations necessary or incidental thereto'.
At the conclusion of the trial which followed, the Judge granted defendant's motion to dismiss the complaint on the grounds that defendant's coverage did not extend to the trespass cause of action alleged in the original complaint; that it did not receive timely notice of the added negligence claim; and that no accident was alleged, much less proved. The court, sitting without a jury, emphasized the facts that Colpan's actions were willful, that this was the way the original complaint was framed, and that therefore there could have been no accident since that term contemplates the lack of willful conduct.
The Appellate Division majority reversed on the law and the facts in a comprehensive opinion with which we generally agree and upon which we would rest our affirmance were it not that we wish to emphasize that the application of the term accident in such contexts as that before us provides a question of fact and not a question of law. In another case with slightly variant facts, the fact finders might well correctly hold no accident to have occurred.
One often contemplates and envisions a sudden or catastrophic event when considering the term accident--an event which is unanticipated and the product of thoughtlessness rather than willfulness. But a broader view must be taken of the...
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