BITUMINOUS CASUALTY CORPORATION, AN ILLINOIS CORPORATION, APPELLANT,
v.
WILBUR R. BURNS AND CASSIE MAE BURNS, HIS WIFE, APPELLEES
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Bituminous Casualty Corporation, liability insurer of a construction company, appealed a garnishment judgment arguing that it was not liable under its policy because the flooding of the Burns' property was not caused by an "accident" as defined in the policy. The court affirmed, holding that the case should have gone to the jury because it was not clear as a matter of law that the contractor intended or should have known that its dam placement would flood the nearby property.
The court held that the trial court did not err in submitting the case to the jury because it does not follow as a matter of law that the tortfeasor intended, knew, or should have known that the dam placement would cause the flooding of the appellees' property, and therefore the case was distinguishable from prior decisions denying coverage for non-accidental events.
“an accident in this connotation is an occurrence which is unusual or unexpected; thus, an intended result or a result which would naturally be expected to follow from other conditions is not an accident”
Establishes the legal definition of "accident" under insurance policies that the appellant relied upon
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Join FLexlaw to unlock all legal intelligenceGrubbs Construction, Inc. was constructing a storm sewer and closed off a canal end of a local storm sewer using a dam to prevent water from entering …
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The appellant was the garnishee in the trial court and appeals a final judgment in garnishment based on a jury verdict. It is urged that the court erred in submitting the cause to the jury because under the undisputed facts the defendant insurance company was not liable under the policy.
The appellant was the liability insurer of Grubbs Construction, Inc. The appel-lee obtained a judgment against Grubbs for the negligent flooding of appellees’ property during Hurricane Donna. In the subsequent garnishment proceeding, appellant maintained that it was not liable to its *613insured because of the following provision in the policy:
“Coverage C — Property Damage Liability — Except Automobile: 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 use thereof, caused by accident.” [Emphasis added.]
Grubbs Construction, Inc., was engaged in constructing a storm sewer from Palmetto Expressway to Lambs Canal. In so doing, Grubbs closed off the canal end of a local storm sewer. This was done in order to prevent water from entering the construction area from the canal and pumps were employed to take the water out of the landward side of the construction. Grubbs did not attend the construction area during the time of the hurricane watch and the subsequent hurricane warnings. It did not remove the dam from the outfall into the canal. As a consequence of this action and the heavy rains incident to the storm, water backed up in the area and inundated the appellees’ property which was located approximately 1½ blocks from the construction site.
Appellant relies upon the rule stated in Bennett v. Fidelity & Casualty Comp. of New York, Fla.App.1961, 132 So.2d 788 and cases cited therein. See Michigan Mutual Liability Co. v. G. & L. Roofing Co., Fla.App.1960, 123 So.2d 300. This line of cases is based upon the lead case of Christ v. Progressive Fire Insurance Company, Fla.App.1958, 101 So.2d 821. In all of the cases, the point upon which the decisions turn is the definition of the word “accident” as used in the policy. In each case, it is pointed out that an accident in this connotation is an occurrence which is unusual or unexpected; thus, an intended result or a result which would naturally be expected to follow from other conditions is not an accident.
We think that the instant case does not come within the rule stated in the above cases because it does not follow as a matter of law that the tort-feasor, Grubbs Construction, Inc., intended, or knew, or should have known, that the result of the placing of the dam would be the flooding of appellees’ property. We therefore hold that appellant has not demonstrated error in the trial court’s submission of the cause to the jury.
Affirmed.
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Citator
Cited By
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J. A. Jones Constr. Co. v. The Zack Co. & H. H. Robertson Co., 232 So. 2d 447 (Fla. 3d DCA 1970)…a.App.1958, 101 So. 2d 821; Michigan Mutual Liability Co. v. G. & L. Roofing Co., Fla.App.1960, 123 So. 2d 300; Bennett v. Fidelity & Casualty Company of New York, Fla.App.1961, 132 So. 2d 788; Bituminous Casualty Corporation v. Burns, Fla.App.1967, 200 So. 2d 612.…
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Troup v. Bituminous Cas. Corp., 203 So. 2d 634 (Fla. 3d DCA 1967)…gainst appellant. We must conclude that the trial court was in error. The principle of law and the facts of the instant case are essentially the same as those discussed and ruled upon in the case of Bituminous Casualty Corp. v. Burns, Fla.App.1967, 200 So. 2d 612, and our holding therein is controlling in this appeal. Reversed on the authority of Bituminous v. Burns, supra. Reversed.…
Authorities Cited
- Bennett v. Fid. & Cas. Co. OF NEW York, 132 So. 2d 788 (Fla. 1st DCA 1961)
- Christ v. Progressive Fire Ins. Co., 101 So. 2d 821 (Fla. 2d DCA 1958)
- Mich. Mut. Liab. Co. v. G. & L. Roofing Co., 123 So. 2d 300 (Fla. 3d DCA 1960)