Moore v. Fidelity & Cas. Co. of N.Y.
| Decision Date | 21 March 1956 |
| Citation | 140 Cal.App.2d Supp. 967,295 P.2d 154 |
| Court | California Superior Court |
| Parties | 140 Cal.App.2d Supp. 967 Carl W. MOORE, etc., Plaintiff and Appellant. v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, etc., Defendant and Respondent. Civ. A. 8850. Appellate Department, Superior Court, Los Angeles County, California |
Hanna & Morton and John H. Blake, Los Angeles, for appellant.
Betts, Ely & Loomis, Los Angeles, for respondent.
This is an appeal by plaintiff from a judgment in favor of defendant, entered in an action upon an insurance policy wherein plaintiff was the insured and defendant the insurance company which provided for liability for property damage suffered by third persons and growing out of the operation of plaintiff's business. No disputed questions of fact are involved.
The appellant owned and operated a laundromat business. Appellant entered into an insurance contract with respondent which provided among other things as follows: 'To pay on behalf of the insured 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 and arising out of the ownership, maintenance or use of premises for the purposes stated in the declarations, or operations necessary or incidental thereto.'
The use of the premises was declared to be that of a laundromat or self-service laundry and a premium was computed and paid for the coverage specified. The policy further provided, 'the company (defendant) shall defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent' etc.
During the time the insurance was in effect, the appellant herein was sued by an adjoining tenant (Shuls) who alleged in his complaint 'that appellant in the operation of the driers used in his business permitted lint to be blown upon the roof of the building occupied by said Shuls and that lint was deposited in drains which became clogged and that on January 19, 1954 when a rain occurred, water leaked into Shuls' premises as the result of the negligence of appellant in permitting lint to escape and clog the drains,' and prayed for damages. The complaint also alleged that appellant was notified of these facts and agreed to install a lint catcher, but later failed to do so.
Appellant delivered complaint to respondent and requested it to defend, but respondent refused to defend on the ground that the claim was not a peril covered by the insurance policy.
It is admitted that as a result of this suit appellant was required to pay $1,430.84 as damages and $400 as legal fees, and $69.20 costs, all of which were found by the trial court below to be necessary and reasonable.
The court concluded from the facts above found that the damages to Shuls, although appellant was obligated to pay, were not caused by accident, and further concluded that respondent was under no obligation to defend the appellant in the Shuls case.
We will first discuss the question. Was the respondent (Insurance Co.) required to defend appellant in the action for damages to personal property brought by Shuls against appellant? It is stated in Lamb v. Belt Casualty Co., 1935, 3 Cal.App.2d 624, at page 630, 40 P.2d 311, at page 314: In determining whether or not respondent was bound to defend, 'the language of its contract must first be looked to, and next the allegations of the complaints in each action for damages against the insured.' The complaint herein clearly alleges damages from an alleged negligent operation of the driers used in the business conducted by appellant, causing lint to be blown upon the roof of the building occupied by the Shuls, and that lint was deposited in drains which became clogged and when rain occurred water leaked into Shuls' premises as a proximate result of appellant's negligence, etc.
The policy provided that the Insurance Company would pay as follows: 'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury or destruction of property, including the loss of use thereof caused by accident and arising out of the ownership, maintenance or use of the premises for the purposes stated in the declarations, or operations necessary or incident thereto.'
It is clear that the operation of the drier which caused lint to be deposited on the roof and in drains was a necessary operation in the laundromat business. In the recent case of Ritchie v. Anchor Casualty Co., 1955, 135 Cal.App.2d 245, at page 250, 286 P.2d 1000, at page 1003, it was also held, 'that the insurer's obligation to defend is measured by the terms of the insurance policy and the pleading of the claimant who sues the insured', citing the Lamb v. Belt Casualty Co. case. We have concluded that there was a duty under the policy and under the facts stated in the pleading served on the insured to defend appellant in the action for damages filed against him. The second question presented is whether or not the contract of insurance, the pertinent provisions of which have heretofore been quoted, covered the claim for damages against appellant by reason of his negligent operation of the drier as set forth in the complaint against him.
It is claimed by respondent, and held by the trial court, that this claim under the complaint by Shuls for damages against appellant was not caused by accident, and hence was not covered by the policy. We are unable to agree with this conclusion of law.
The latest expression of the appellate courts of California concerning the definition of the word 'accident' is found in Ritchie v. Anchor Casualty Co., supra. In that case the insured purchased a policy of insurance which provided by endorsement to the policy that the policy was extended to cover 'the liability imposed upon the insured by law for damages because of injury to or destruction of property, including the loss of use thereof caused by accident and arising out of' the condition of the goods distributed by the insured if the accident occurred after the insured had parted with possession. The language quoted is strikingly similar to the language which imposes liability on the insured in the case at bar and which has been heretofore quoted. In each case the insured agreed to pay for damages because of injury to or destruction of property caused by accident. The insured in the Ritchie case sold peanut oil to the Post...
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