Missionaries of Co. of Mary, Inc. v. Aetna Cas. & Sur. Co.
| Decision Date | 10 May 1967 |
| Citation | 230 A.2d 21,155 Conn. 104 |
| Parties | MISSIONARIES OF the COMPANY OF MARY, INC. v. The AETNA CASUALTY AND SURETY COMPANY. |
| Court | Connecticut Supreme Court |
Philip S. Walker, Hartford, with whom, on the brief, was Ralph C. Dixon, Hartford, for appellant (defendant).
John F. Scully, Hartford, with whom were Robert M. Fitzgerald, Litchfield, and, on the brief, David T. Ryan, Hartford, for appellee (plaintiff).
Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.
The defendant had issued to the plaintiff an owners', landlords' and tenants' liability insurance policy covering property owned and occupied by the plaintiff as a monastery. During the effective period of the policy, a negligence action was brought against the plaintiff by a person who was injured when he fell into an open ditch on the property. The plaintiff requested the defendant to defend the action. The defendant refused to do so, and the plaintiff employed counsel to defend. A verdict was rendered against the plaintiff which the trial court set aside, and thereafter the plaintiff settled the case for $15,000. The plaintiff then brought the present action to recover the amount paid in defending and settling the case. The court rendered judgment for the plaintiff to recover the $15,000 paid in settlement, $5000 in counsel fees, $1325 for the expenses of preparation and trial with interest amounting to $1386.12, and $1500 counsel fees in the present action. The defendant appeals from that judgment.
The plaintiff has withdrawn its claim for counsel fees in the present action, and the issue on appeal involves only the correctness of the judgment in awarding the other items of damage, the reasonableness of which is not disputed. The defendant claims to be relieved of liability by an exclusion clause in its policy and that it had no duty to defend the plaintiff in the negligence action. The court's finding is not subject to correction.
The plaintiff's property consisted of a tract of land on which were located a large stone monastery occupied as a residence by the priests, seminarians and brothers, a dwelling house, a garage containing a walk-in freezer, and a pump house. The dwelling house is immaterial to the present controversy. The only source of electric power for the monastery, garage, freezer, pump house and various electrical appliances, such as washing machines, an electric dryer, a cooking range and the like, was a temporary overhead wire carrying 100 amperes of current which ran from a pole situated 125 feet distant. Constant power failures had occurred which required the changing of fuses, and the wiring for the existing electrical system was worn, damaged by excessive heat, overloaded, inadequate and a fire hazard. During the summer of 1960, the plaintiff planned an addition to the monastery to provide additional accommodations for the resident brothers and seminarians. In September, 1960, the plaintiff contracted with Bonvicini Building Company, Inc., hereinafter called Bonvicini, that Bonvicini would furnish all labor and materials to construct the addition except for exterior stone work, plumbing and heating. Bonvicini's contract included all electrical wiring within the new addition, the current for which was to be brought to a meter board in the new addition from a meter board in the existing monastery. Bonvicini sublet the electrical work to the D. M. Laraia Electrical Engineering Company, hereinafter called Laraia. The exterior stone work was laid by the seminarians and brothers, and the plumbing and heating was independently contracted for by the plaintiff. While Laraia was at work under its contract with Bonvicini, spokesmen for the plaintiff and Laraia discussed with him the condition of the existing electrical system. They concluded that it was then overloaded and that an extension of it into the new addition would be an increased hazard, even though only a light load of 20 to 25 amperes would be required to serve the new addition. A 200-ampere system was decided upon, the wiring for which Laraia would place underground in a ditch to be dug by the seminarians and brothers. The ditch was dug from the power pole to an existing retaining wall of the monastery courtyard on which the new addition was located. Laraia's agreement to replace the existing overhead wiring with the underground wiring system was made directly with the plaintiff and was independent of Laraia's contract with Bonvicini. The new line would supply all electrical power for the existing buildings and facilities plus the 20 or 25 amperes required by the new addition. After the ditch had been dug, Stephen Shuhi, while he was delivering a tank of gas on the plaintiff's premises, fell into the ditch and was injured. At the time of Shuhi's fall, Bonvicini had nearly completed its work on the new addition. Whether Laraia's interior electrical work in the new addition under its contract with Bonvicini had been completed does not appear.
Shuhi brought suit against the plaintiff to recover damages for his injuries, alleging that the plaintiff (the defendant in that action) was the owner and in possession and control of the real estate, that it had ordered a tank of gas from Shuhi's employer to be delivered to its property, and that Shuhi, while he was delivering the tank of gas at a location designated by the plaintiff, fell into a nearby ditch which was about three feet deep and was substantially filled with snow. Shuhi alleged that the plaintiff (the defendant in that action) was negligent in causing the ditch to be dug and in leaving it unguarded when it knew that Shuhi would be making a delivery in the area and would be likely to fall into the ditch; in failing to warn him of the presence of the ditch; in failing to protect the ditch by barricades when it knew that the ditch contained snow and constituted a concealed trap; and in failing to use reasonable care to maintian its property in a reasonably safe condition for persons lawfully thereon.
By the terms of the policy which the defendant had issued to the plaintiff, the defendant agreed '(t)o pay on behalf of the Insured (plaintiff) 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.' The policy provided that the defendant would 'defend any suit against the Insured alleging such injury, * * * and seeking damages on account thereof, even if such suit is groundless, false or fraudulent'.
The hazards covered by the policy were described as '(t)he ownership, maintenance or use of the premises, and all operations necessary or incidental thereto.' The policy contained the following exclusion: 'The policy does not apply: * * * (c) * * * to * * * structural alterations which involve changing the size of * * * buildings or other structures, new construction or demolition operations, by the named Insured or his contractors or their subcontractors'.
When Shuhi's action was brought, the plaintiff repeatedly requested the defendant to defend the action, but the defendant refused on the ground that liability for the injuries allegedly sustained by Shuhi was excluded by the terms of the policy. The plaintiff then engaged independent counsel to defend against the Shuhi action with the result already related. The defendant's basic claim is that the ditch into which Shuhi fell was a hazard arising from the construction of the new addition and consequently the injury was excluded from the policy coverage, and that that exclusion relieved the defendant of any obligation to defend the action. The trial court concluded that the ditch existed as an operation in the plaintiff's replacement of an existing facility on its property which was independent of the construction of the new addition; that the defendant was liable under the insurance policy issued to the plaintiff; that the defendant was obliged, under the terms of that policy, to defend the suit brought by Shuhi against the plaintiff; and that, having failed to do so, the defendant was liable to the plaintiff for the damages awarded in the judgment appealed from.
The question whether the defendant had a duty to defend the action brought by Shuhi depends on whether the complaint in that action stated facts which appeared to bring Shuhi's claimed injury within the policy coverage. Twon of Andover v. Hartford Accident & Indemnity Co., 153 Conn. 439, 422, 217...
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