Goldmann, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
Plaintiff appeals from a final judgment of the Passaic County District Court. Judgment was rendered by the trial court against Aaron Minkov and in favor of defendant at the close of plaintiff's case.
Aaron Minkov sought to recover from defendant the amount of a judgment entered against him and Rose Minkov individually and trading as Minkov Steel & Iron Works, in another action, plus counsel fees incurred by him in the defense of that action. His position is that the prior suit was cognizable under a policy of insurance issued to him by defendant and that its failure to defend that action or pay the sum of that judgment therefore entitled him to a recovery in the present action. Rose Minkov was the original plaintiff. However, prior to the occurrence which resulted in this suit, she had transferred the business to Aaron Minkov. At the trial, defendant consented to have Aaron Minkov substituted as plaintiff.
Defendant's contention is that the occurrence upon which the prior action was founded (1) was not an "accident" within the meaning of the insurance contract coverage; (2) the type of damage which occurred was one of the risks excluded from coverage under the insurance contract; (3) the named insured and the defendant in the original action were two separate and distinct entities, and the policy did not cover the defendant named in the original action. In any event, it is argued, if defendant is found liable, that liability should be restricted to one-half of the amount of the judgment and counsel fees.
On June 4, 1956 plaintiff, under a contract with the Town of West Orange, undertook certain iron and steel erection work in connection with the construction of a fire station. This work involved the installation of steel roof trusses. The brick walls which had theretofore been constructed by DiGirolamo Construction Co., Inc., under a separate contract, were not square and, because of that, it became necessary to exert pressure upon the rafters in order that they could be pulled into position and bolted. To accomplish
this result plaintiff's employees fastened a choker or steel chain around a column which was an integral part of the wall. In the course of the operation plaintiff's employees, under the direction of one Hendricks, superintendent, were alerted to watch to "make sure that there would be no damage to the wall." Hendricks testified that although he did not expect any damage to the wall, "you always try to prevent any damage, if there is a possible chance." He further stated that he believed the operation was thoroughly safe; that he "wouldn't have done it if I hadn't." The column was not damaged; however, when the two rafters were in place and bolted the wall developed a crack and was "pulled in." Hendricks testified that this was the first time in 28 years of work and experience that such a result had occurred. DiGirolamo was obliged to demolish and replace the wall.
DiGirolamo brought suit in the district court against Rose and Aaron Minkov individually and trading as Minkov Steel & Iron Works, seeking thereby to recover damages for the harm occasioned by the impairment of the wall. Notice of these facts and the summons and complaint, when served, were immediately forwarded to defendant (Reliance), with a request to defend the action, pursuant to the following provisions of the policy:
"Coverage B -- Property Damage Liability:
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 and arising out of the hazards hereinafter defined."
Reliance refused to undertake the defense of that suit on the ground that there was no obligation on its part under coverage B, above quoted, since the occurrence could not be construed as an "accident" within the meaning of the policy. DiGirolamo's complaint was dismissed involuntarily, without prejudice, by the trial court.
Thereafter, DiGirolamo undertook a second suit against Rose and Aaron Minkov in the same capacities. The summons
and complaint in the second suit were also forwarded to Reliance, with a request to defend. As in the first suit, and for the same reason, Reliance refused. Plaintiff engaged his own counsel and the matter proceeded to trial. Judgment was rendered against Rose and Aaron Minkov, individually and trading as Minkov Steel & Iron Works, in the sum of $608.90 damages and costs of suit. Reliance refused to pay said judgment and plaintiff thereupon filed the instant suit. At the close of plaintiff's case against Reliance, the trial judge, upon motion, entered judgment for defendant, bottoming the decision upon his conclusion that the damage to the wall was foreseeable by plaintiff and was, therefore, "not caused by accident."
The crux of plaintiff's argument is the meaning of "caused by accident." Both plaintiff and defendant admit that even though the means which caused the injury were voluntarily employed, the resulting injury could be considered as one occasioned by accidental means if, as a result of the act which preceded the injury, something unforeseen, unexpected and unusual occurred, which produced the injury. Cf. Ciuba v. Irvington Varnish & Insulator Co. , 27 N.J. 127 (1958); Korfin v. Continental Casualty Co. , 5 N.J. 154 (1950). See also Shields v. Prudential Ins. Co. of ...