Geddes & Smith, Inc. v. Saint Paul Mercuy Indemnity Co.
Geddes & Smith, Inc. v. Saint Paul Mercuy Indemnity Co.
Opinion of the Court
Plaintiff appeals from a judgment for defendant in an action to recover on an insurance policy issued by defendant to California Aluminum Products, Inc., hereinafter referred to as Aluminum Products.
Plaintiff, a building contractor, ordered 760 aluminum doors, door jambs, and attached hardware from Aluminum Products in November, 1950. The doors were to be used in 76 houses being constructed by plaintiff in the cities of Napa and Fairfield. The deliveries of the doors occurred from December, 1950, to February, 1951. The doors were kept in storage for some time, and plaintiff began to install them in May, 1951, and installed all of them within a few months. After installation, defects appeared in some of the doors within a few days and in others after various periods of time ranging up to six months. Some of the doors sagged on their hinges and dragged on the floors. Some went out of shape. Parts of some of the doors fell out. Some doors could not be closed and others that were closed became locked in place and could not be opened. Plaintiff notified Aluminum Products, which undertook to supply other doors. Many of the new doors had the same defects as the old. Some were found
Plaintiff then brought this action against defendant to recover the amount of the judgment under the insurance policy issued by defendant to Aluminum Products. The judgment roll of the prior action was admitted into evidence.
The policy in question was issued for the period from May 1, 1951, to May 1, 1952. Under the terms of the policy defendant was obligated to defend any actions against Aluminum Products alleging damages within the policy coverage. An insurer that has been notified of an action and refuses to defend on the ground that the alleged claim is not within the policy coverage is bound by a judgment in the action, in the absence of fraud or collusion, as to all material findings of fact essential to the judgment of liability of the insured. The insurer is not bound, however, as to issues not necessarily adjudicated in the prior action and can still present any defenses not inconsistent with the judgment
The pertinent provisions of the policy are as follows. Under Coverage “ C, ” “Property Damage Liability other than Automobile,” defendant agreed: “To pay on behalf of the Insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law or contract because of injury to or destruction of property, including the loss of use thereof, caused by accident. ’ ’ Under Exclusions ’ ’ it is provided that: “This Policy does not apply:... (e) under Coverage C, to injury to or destruction of (1) any goods or products . . . sold ... by the Insured . . . out of which the accident arises.” Endorsement number 1, effective May 1, 1951, entitled “Exclusion of Products Liability,” provides: “It is agreed that the policy does not apply to: (1) the handling or use of, the existence of any condition in or a warranty of goods or products . . . sold ... by the named insured occurring after the insured has relinquished possession thereof to others ...” Endorsement number 4 was executed on April 1, 1952, and provided that retroactive to May 1, 1951, the “exclusion of products liability endorsement number 1 is cancelled fiat.” The policy provides that it applies to accidents taking place during the policy period.
Plaintiff contends that since endorsement 1 excluded liability for any breach of warranty of goods sold after the insured had relinquished possession thereof to others, its cancellation by endorsement 4 must be interpreted as providing coverage to the extent theretofore excluded, and that
Defendant contends that there was no injury to or destruction of property caused by accident. No all-inclusive definition of the word “accident” can be given. It has been defined “as ‘a casualty—something out of the usual course of events and which happens suddenly and unexpectedly and without design of the person injured.’ (Rock v. Travelers Ins. Co., 172 Cal. 462, 465 [156 P. 1029, L.R.A. 1916E 1196] ,- Richards v. Travelers Ins. Co., 89 Cal. 170,175 [26 P. 762, 23 Am.St.Rep. 455].)” (Zucherman v. Underwriters at Lloyd’s, 42 Cal.2d 460, 473 [267 P.2d 777].) It “ ‘includes any event which takes place without the foresight or expectation of the person acted upon or affected hy the event.’ ” (Richards v. Travelers Ins. Co., 89 Cal. 170,176 [26 P. 726, 23 Am.St.Rep. 455]; see also Ritchie v. Anchor Casualty Co., 135 Cal.App. 2d 245, 252-253 [286 P.2d 1000] ; Moore v. Fidelity & Cas. Co., 140 Cal.App.2d Supp. 967, 971 [295 P.2d 154].) “ Accident, as a source and cause of damage to property, within the terms of an accident policy, is an unexpected, unforeseen, or undesigned happening or consequence from
and unforeseen. They were not the result of normal deterioration, but occurred long before any properly constructed door might be expected to wear out or collapse. Moreover, they occurred suddenly. It bears emphasis that we are concerned, not with a series of imperceptible events that finally culminated in a single tangible harm (of., Canadian Radium, & Uranium Corp. v. Indemnity Ins. Co., 342 Ill.App. 456 [97 N.E.2d 132, 139-140]), but with a series of specific events each of which manifested itself at an identifiable time and each of which caused identifiable harm at the time it occurred. The trial court found that “these defects, in some cases, developed within a few days after [the doors] were installed and in some cases as much as six months elapsed after the doors were installed, but that eventually all the original 760 doors so sold and delivered by the California Aluminum to plaintiff proved defective and fell apart. That said doors sagged on their hinges, went out of shape, they dragged on the floors and the inside parts of said doors fell out. That when said doors came apart they would frequently lock themselves in place and could not be opened. In other cases doors that were closed and locked would fall apart and come open. That when the dwelling houses were occupied by purchasers, as hereinafter set forth, the occupants would frequently leave their premises with the doors closed and locked and on their return find the doors had come apart and the houses were wide open. That in many cases, by reason of these defects in the doors, it ivas impossible for the occupants to lock the doors, or even to close the doors at night. That when temperatures arose in the houses the said doors would also emit noises that sounded like the explosion of fire crackers.” Thus, although it may have taken many months for all of the doors to fail and fall apart, it is clear that each door, when it failed, failed suddenly. At one moment it was a usable door, at the next it was not. Had the door failure resulted in direct physical injury to the houses, the accidental cause of the harm would be obvious, but other harms flowing from the door failures were likewise accidentally caused. Accordingly, the crucial issue is which, if any, of these harms were within the policy coverage.
It is not disputed that injury to or destruction of the
Plaintiff’s judgment against the insured was not limited to such damages. In addition to costs of removal of the doors and loss of use of the houses, it included the other costs of handling the defective doors and their replacements, loss of profits, and loss of goodwill. Plaintiff contends, however, that these additional items of damages constituted damages to its business and goodwill and were therefore damages “because of injury to or destruction of property.” We cannot agree with this contention.
When coverage C is read in the light of the exclusions
To summarize, it appears from the specific facts found that there was injury to the houses caused by accident and that therefore the trial court’s conclusion to the contrary cannot stand. Since the judgment against Aluminum Products, however, also included additional elements of damages not covered by defendant’s policy, we cannot grant plaintiff’s motion to amend the findings and enter judgment for the full amount sought in its favor.
The motion to amend the findings is denied and the judgment is- reversed for further proceedings in accord with the views herein expressed.
Gibson, C. J., and Schauer, J., concurred.
Dissenting Opinion
The policy coverage was limited to “liability imposed . . . because of injury to or destruction of property, . . . caused by accident.” (Emphasis added.) The trial court found: “That it is not true that any of the defects in any of said doors or any of the expenses incurred or losses sustained by plaintiff was caused by accident.” In my opinion this was the only finding which the trial court could properly have made under the undisputed facts. There was no “sudden and unexpected” event or anything which happened “suddenly and unexpectedly” so as to bring the situation within any accepted meaning of the phrase “injury to or destruction of property, . . . caused by accident.” (Zuckerman v. Underwriters at Lloyd’s, 42 Cal.2d 460, 473 [267 P.2d 777]; Rock v. Travelers Ins. Co., 172 Cal. 462, 465 [156 P. 1029, L.R.A. 1916E 1196]; Richards v. Travelers Ins. Co., 89 Cal. 170, 175 [26 P. 762, 23 Am.St.Rep. 455].) Thus, the effect of the majority opinion is to convert a so-called public liability policy, limited to liability imposed for damage ‘ ‘ caused by accident, ’ ’
In Volf v. Ocean Accident & Guar. Corp., 50 Cal.2d 373 [325 P.2d 987], a somewhat similar policy was involved. This court found it unnecessary there to determine the scope of the insuring clause using the term “caused by accident,” as the facts clearly brought the situation within one of the exclusionary clauses of the policy. {Ibid, p. 375.) In my opinion, this court could have properly reached the same result in the Volf case by holding that the facts did not bring the situation within the plain provisions of the insuring clause. This court there distinguished Hauenstein v. Saint Paul-Mercury Indem. Co., 242 Minn. 354 [65 N.W.2d 122], but in the present case, the majority relies upon that case to support its position. I do not believe that the cited case was correctly decided, and therefore I would not follow it.
The majority opinion also cites and relies upon Ritchie v. Anchor Casualty Co., 135 Cal.App.2d 245 [286 P.2d 1000]. The policy there was quite similar, insuring against liability for damages “caused by accident.” The insured sold rancid peanut oil which was used by its customer in the manufacture of food products. The use of such oil by its customer “ruined all food products in which it was used, and damaged the machinery employed in the manufacture of same.” (P. 252.) The court there quoted the approved definition of accident as something “which happens suddenly and unexpectedly” (p. 253) and held that the liability of the insured was embraced within the terms of the insuring clause. Unlike the present case, the use of the rancid peanut oil there “suddenly and unexpectedly” caused damage to both the entire mass of the food product into which it was mixed and to the machinery used in the processing. Here, nothing happened “suddenly and unexpectedly” and there was no damage to the houses except for the fact that the doors themselves proved to be defective. It is therefore clear that the insured’s liability was not a liability for damage “caused by accident.”
I would affirm the judgment.
Shenk, J., and MeComb, J., concurred.
Concurring Opinion
I concur in the judgment and in the majority opinion except the reasoning therein that the ease of Volf v. Ocean Accident & Guar. Corp., 50 Cal.2d 373, 377 [325 P.2d 987], is distinguishable from Hauenstein v. Saint Paul-Mercury Indem. Co., 242 Minn. 354 [65 N.W.2d 122], relied upon in support of the conclusion reached in the case at bar. In my opinion the conclusion reached by a majority of this court
Reference
- Full Case Name
- GEDDES & SMITH, INC. (A Corporation), Appellant, v. SAINT PAUL MERCURY INDEMNITY COMPANY (A Corporation), Respondent
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- 175 cases
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