Town of Andover v. Hartford Acc. & Indem. Co.
| Decision Date | 08 February 1966 |
| Citation | 217 A.2d 60,153 Conn. 439 |
| Court | Connecticut Supreme Court |
| Parties | TOWN OF ANDOVER v. HARTFORD ACCIDENT AND INDEMNITY COMPANY. |
Eugene T. Kelly, Manchester, with whom, on the brief were Leon Podrove and William B. Collins, Manchester, for appellant (defendant).
Edwin M. Lavitt, Rockville, with whom, on the brief, was Arnold W. Aronson, Rockville, for appellee (plaintiff).
Before KING, C. J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.
The plaintiff town was insured by the defendant company under a 'manufacturers' and contractors" liability insurance policy. While the policy was in force, the town was sued by an individual who claimed to have been injured on a town road. The town successfully defended the suit and, in the present action, recovered a judgment for expenses incurred in that defense. The company has appealed, claiming that the policy did not require it to defend the action brought against the town because the complaint in that action did not allege an injury within the coverage of the policy and because the town had breached the notice conditions of the policy.
The essential facts are not in dispute. The material provisions of the policy insured the town against liability for damages for personal injury and property damage claims arising from 'Street or Road Paving or Repaving, Surfacing or Resurfacing or Scraping'. No coverage was afforded 'with respect to the existence of any defect in, or failure to repair or maintain in safe condition, any sewer, street, highway * * * or other equipment of facility not used in connection with an operation specifically described in the declarations of the policy.' The hazards covered were subject to the exclusions, conditions and other terms of the policy, among which were the requirements that written notice of an accident be given as soon as practicable and that, if a claim was made or a suit was brought, the town should forward immediately to the company every demand, notice, summons or process received by it. The policy required the company to defendant any suit for damages brought against the town which alleged an injury arising out of the hazards covered, even if the suit was groundless. Compliance by the town with all terms of the policy was stated to be a condition precedent to the company's performance of its obligations thereunder.
Arthur M. Couch claimed to have been injured in an accident on a town road on October 30, 1960, and he gave written notice to the town of his claim, pursuant to statute (Now General Statutes §§ 13a-149, 13a-152), on December 9, 1960. On October 7, 1961, his writ, summons and complaint in an action against the town for damages arising out of the injuries was served on the town. The complaint alleged that the road 'due to improper and inadequate maintenance, repairs, resurfacing, etc., on the part of the * * * [town], had been in a dangerous and unsafe condition for the passage of road traffic'; that the accident 'was caused by the excessive sand, stone, gravel, oil, etc., placed on said road by the Town of Andover'; and that the section of road where the injury occurred was defective 'because of the manner in which the Town of Andover maintained and repaired said highway'.
On January 23, 1962, the town, for the first time, gave the company notice of the accident and claim and forwarded to it the statutory notice and Couch's writ, summons and complaint. On February 10, 1962, the company engaged counsel who entered a general appearance for the town in Couch's action without any disclaimer or reservation of the company's rights. On February 19, 1962, this attorney successfully demurred to Couch's complaint. The company notified the town, on March 27, 1962, that it declined to defend the action, and it ceased further participation in it.
After the demurrer to the complaint was sustained, an amendment immaterial to the present controversy was filed, and, in a trial defended by counsel employed by the town, judgment was rendered for the town.
Limiting our consideration first to the coverage stated in the policy, the question whether the company had a duty to defend depends on whether the complaint in the action against the town stated facts which appeared to bring the injury within the policy coverage. Connecticut Co. v. Mongillo, 144 Conn. 200, 204, 128 A.2d 528; Smedley Co. v. Employers Mutual Liability Ins. Co., 143 Conn. 510, 516, 123 A.2d 755. The coverage afforded is ascertained from the language of the policy where, as here, that language is plain and unambiguous. Leathermode Sportswear, Inc. v. Liberty Mutual Ins. Co., 150 Conn. 63, 66, 186 A.2d 79.
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