De Forte v. Allstate Insurance

81 A.D.2d 465, 442 N.Y.S.2d 307, 1981 N.Y. App. Div. LEXIS 10932
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 9, 1981
StatusPublished
Cited by30 cases

This text of 81 A.D.2d 465 (De Forte v. Allstate Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
De Forte v. Allstate Insurance, 81 A.D.2d 465, 442 N.Y.S.2d 307, 1981 N.Y. App. Div. LEXIS 10932 (N.Y. Ct. App. 1981).

Opinions

OPINION OF THE COURT

Cardamone, J.

Plaintiff Florence De Forte was stopped by Police Officer Mancini for speeding in November, 1972. While alighting from her automobile to speak with the officer, plaintiff’s German Shepherd, “Max”, which was inside the car, jumped out and bit the officer. In May, 1974 plaintiff took “Max” to the veterinarian for his annual distemper shot. Taking him in on a chain, plaintiff encountered Kathleen Madden and her husband, who was walking on crutches. “Max” attacked and bit Mrs. Madden.

As a result of these two incidents, plaintiff was sued by the officer for personal injuries and by the City of Buffalo for the medical expenses and lost wages which it was required to pay to the officer. She was also sued by Kathleen Madden for her injuries and by her husband on his derivative cause of action. When defendant, Allstate Insurance Company, refused to defend these still pending actions, Mrs. De Forte commenced the instant declaratory judgment action under her business package policy. After a trial plaintiff’s action was dismissed and the trial court declared that these occurrences are not covered by plaintiff’s policy with Allstate. In our view the policy covers both incidents, and the contrary ruling at Trial Term must be reversed.

Since 1964 plaintiff has owned and operated a four-family multiple dwelling in Buffalo, in one of which plaintiff lives. In 1971 she obtained “Max” as a watchdog for the premises and normally kept him chained in the backyard until 11:00 P.M. It is not contested that “Max” is a watchdog. Through the advice of her Allstate agent, plaintiff obtained a business package policy with respect to her apartment house which was in effect from August 18, 1972 until August 18, 1975, covering the time when both incidents occurred. This policy replaced the Allstate homeowners [467]*467policy which Mrs. De Forte had previously owned. It contained a “Premises and Operations Limitation Endorsement” which provided insofar as pertinent: “Allstate will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental to the business of the Named Insured conducted at or from the insured premises” (emphasis supplied).

Several questions are presented: whether either occurrence is covered by the language in the business package policy and if so, whether plaintiff is barred from obtaining such coverage by failure to give timely written notice of the incident and to forward the suit papers promptly to Allstate.

The background of the first incident, that of November 22, 1972, is as follows: several months after obtaining her new policy, plaintiff noticed that a light bulb was burned out in the common hallway used by the tenants and decided to go out and buy new light bulbs. She testified that she took “Max” along to protect her car from being stolen. He was chained to a door, inside the car. On her way back home, the incident with the police officer occurred. The second incident has already been detailed.

Reasonableness is a test to be applied when there is doubt, as here, as to the intent expressed in the writing. A contract of insurance is no different from any other and must be construed in a fair and reasonable manner having regard to the risk and subject matter and the purpose of the policy (29 NY Jur, Insurance, § 605). Special rules such as liberal construction in favor of the insured and against the insurer who drew the contract and construction against exceptions and limitations and forfeitures of course, apply (29 NY Jur, Insurance, § 594). In considering these factors account should be taken of the reasonable expectation and purpose of the businessman who purchased the contract (Harris v Allstate Ins. Co., 309 NY 72, 75).

The common test when interpreting the provision of an insurance policy is what meaning the words carry from [468]*468the viewpoint of an average person’s understanding. A policy must be read in a practical way, not so as to revise and extend the risk but with a view toward what was reasonably intended when the policy was written by defendant and accepted by plaintiff. Thus, in the final analysis reasonableness is the test to be applied—“what meaning do the words convey as understood in their plain, popular and ordinary sense * * *—and from the viewpoint of the average man” (Smith v Pennsylvania Gen. Ins. Co., 32 AD2d 854, affd 27 NY2d 830; 10 NY Jur, Contracts, § 205).

Careful analysis of the indorsement shows that Allstate agreed to pay on behalf of plaintiff sums which she must pay as damages caused by an occurrence “arising out of the ownership, maintenance or use of the insured premises”. Both incidents—to buy light bulbs for a common hallway or to take a watchdog to get his distemper shot—arise out of “the ownership [or] maintenance” of the “insured premises”. The policy continues—“and all operations necessary or incidental to the business of the Named Insured conducted at or from the insured premises”. The two errands plaintiff went on are also reasonably necessary or incidental” to her business. The final phrase “conducted at or from the insured premises” refers to the “business of the Named Insured”. The use of the word “at” rather than such words as “in” or “on” is significant because the latter words relate an occurrence more specifically to the premises than does the use of the more indefinite word “at”. The use of the word “from” clearly rélates to occurrences not on the premises. It would have been easy to provide that there was no coverage for occurrences “off the premises”. For an exclusion of liability, not apparent from the words used, to be found to have been intended by the insurer, the responsibility must fall on the insurer to express it (Sperling v Great Amer. Ind. Co., 7 NY2d 442, 447). This the defendant failed to do and, instead, the use of the broad phrase “at or from” the premises plainly includes coverage for these two occurrences which occurred away from the premises. Further, employing a test of reasonable expectation, the focus must be on plaintiff’s purpose in going on these two errands. Both were necessary and incidental to her business and neither was a nonbusiness [469]*469frolic or tour—such as going to the beach or grocery shopping. Whether plaintiff chose to take or not to take her watchdog with her cannot serve as a relevant consideration in determining coverage. A business policy that protects the insured for occurrences away from the premises, incidental to the business, should be reasonably construed to provide coverage.

Several further reasons persuade us to this result. Not only is the policy to be strictly construed against Allstate (Greaves v Public Serv. Mut Ins. Co., 5 NY2d 120, 125) and liberally in favor of the insured (Government Employees Ins. Co v Kligler, 42 NY2d 863), but the attempt to use words of limitation in the nature of an exception to the primary coverage is also strictly construed against the insurer (Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136, 151). Finally, it is not the constituent acts which are to be tested—in this case the extraneous act of bringing “Max” need not be justified standing alone—but, rather, the entire “transaction as a whole” should be examined to determine whether coverage exists (McGroarty v Great Amer. Ins. Co., 36 NY2d 358;

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Bluebook (online)
81 A.D.2d 465, 442 N.Y.S.2d 307, 1981 N.Y. App. Div. LEXIS 10932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-forte-v-allstate-insurance-nyappdiv-1981.