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Negligent Repairs Covered in Auto Policy Under Comprehensive Insurance -9/5/1984

09/05/84 Charles Caccioppo,         v. United Services Automobile

     

[Editor's note: footnotes (if any) trail the opinion]

[1]     CIVIL COURT OF THE CITY OF NEW YORK, QUEENS COUNTY

[2]     Charles Caccioppo, Plaintiff,

v.

[3]     United Services Automobile Association et al., Defendants

[4]     479 N.Y.S.2d 688, 125 Misc. 2d 698

[5]     September 5, 1984

BLUE BOOK CITATION FORM: 1984.NY.

 

[6]     APPELLATE PANEL:

[7]     Joseph Rosenzweig, J.

[8]     DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE

ROSENZWEIG

[9]     Plaintiff's cause of action against his insurance carrier is

based upon a loss to his automobile through the alleged negligence and

malfeasance of defendant C & S Diesel, Inc., an automobile repair shop.

[10]    Dr. Charles Caccioppo in his complaint seeks to recover damages

in the amount of $4,500 from defendant United Services Automobile

Association under the terms of an insurance contract. Dr. Charles

Caccioppo in his second cause of action seeks to recover $4,500 from

defendant C & S Diesel based upon its negligence in the repair of Dr.

Caccioppo's automobile.

[11]    Plaintiff moves for entry of summary judgment against the

defendant USAA on grounds that the amount of damages are the only

triable issue of fact. Plaintiff contends that the loss sustained to his

automobile which resulted from the alleged negligence of a mechanic is

covered under the provisions of part D of his insurance policy issued by

USAA.

[12]    Defendant cross-moves for summary judgment dismissing the

plaintiff's complaint pursuant to CPLR 3212 (subd [e]).

[13]    The first issue presented in this motion is whether the

insurance policy issued to the plaintiff covers an automobile mechanic's

negligence with respect to the comprehensive clause of the policy.

[14]    The second issue is, assuming plaintiff is deemed to be covered

under comprehensive coverage for the damage to his automobile, whether

an exclusion provision is applicable.

[15]    The third issue presented for analysis is whether there are

material facts in dispute which justify a denial of cross motions for

summary judgment. Under CPLR 3212 (subd [b]), if this court finds a

genuinely controverted fact on which liability depends then this court

is precluded from granting the motion.

[16]    It is well settled that where insurance policies are concerned,

if the provisions are clear and unambiguous, then these provisions are

to be construed liberally in favor of the insured and strictly against

the insurer. (Government Employees Ins. Co. v Kligler, 42 N.Y.2d 863.)

[17]    The insurance policy issued by the defendant in this case

clearly contains a provision regarding coverage for damage to a covered

automobile.

[18]    Part D of the policy provides:

[19]    "Coverage For Damage To Your Aut

[20]    "We will pay for direct and accidental loss to your covered

automobile, including its equipment; minus any applicable deductable

shown in the declarations. However, we will pay for loss caused by

collision only if the Declarations indicate that collision coverage is

provided."

[21]    The primary issue presented concerning this clause of the policy

is whether the alleged negligence of the auto mechanic to the

plaintiff's car was a direct and accidental loss to the covered

automobile within the meaning and terms of the policy indorsement.

[22]    The reasonable interpretation of the phrase "direct loss" is

that it is synonymous with the phrase "direct cause" which in turn is

the legal equivalent of the words "proximate cause". (Dubuque Fire &

Mar. Ins. Co. v Caylor, 249 F2d 162.) Proximate cause has been defined

as the cause which in the natural and continuous sequence, unbroken by

an efficient intervening cause, produces the injury, and without which

the injury would not have occurred. (Lorang v Alaska S.S. Co., 2 F2d

300.)

[23]    In Dubuque Fire & Mar. Ins. Co. v Caylor (supra), the United

States Court of Appeals for the 10th Circuit held that where antifreeze

solution containing ethylene glycol was inadvertently combined with the

crankcase oil already in the engine, it caused the pistons and

connecting rods to become overheated and the engines to seize and lock.

The court recognized that the damage to the engines constituted a direct

loss or damage from any "external cause" within the meaning of the

policy.

[24]    In the case at bar, the policy provision states that the insured

is covered for direct and accidental loss to his covered automobile. The

declarations page of the insurance policy provides that plaintiff pay a

six-month premium of $115 for loss occasioned by other than collision

and a six-month premium of $233 for collision loss.

[25]    This court finds that the language used in part D of the

insurance policy constitutes a comprehensive coverage clause which is

designed to afford protection against all causes of loss, damage or

destruction not specifically excluded. Based upon the declarations page

and the insurance agreement, this court finds that the comprehensive

clause which provided coverage "for direct and accidental loss to [the]

covered" vehicle affords protection to the insured for the alleged

negligence committed by the defendant C & S Diesel, Inc.

[26]    The question then arises whether or not the exclusion denying

coverage for damage from mechanical failure or breakdown would apply to

any damage resulting by reason of an intervening cause such as the

negligence of a mechanic.

[27]    Under the exclusion provision of part D, the insurance agreement

states: "We will not pay for . . . (2) Damage due and confined t (a)

wear and tear . . . (b) mechanical or electrical breakdown or failure."

[28]    Defendant USAA contends that just as collision coverage applied

regardless of negligence, the mechanical breakdown exclusion would also

apply regardless of negligence.

[29]    However, plaintiff argues that the alleged negligence of the

auto mechanic in performing repairs on plaintiff's car takes the alleged

damage outside the mechanical or electrical breakdown exclusion.

Plaintiff further contends that since the affidavit of defendant USAA

fails to state that the automobile suffered from a mechanical or

electrical breakdown prior to it being brought to the defendant C & S

Diesel, the exclusion in part D of the insurance agreement is not

applicable.

[30]    After examination of both parties' contentions, this court finds

that if the alleged negligence caused a mechanical or electrical

breakdown of the automobile, then plaintiff will succeed in arguing that

the exclusion is not applicable by reason of an intervening cause.

[31]    In Lunn v Indiana Lumbermens Mut. Ins. Co. (184 Tenn 584), the

court examined the meaning of the expression "confined to" as used in

the exclusionary provision of an automobile insurance policy. The court

held that the clause which excluded from comprehensive coverage any

damage to the automobile due and confined to mechanical or electrical

breakdown or failure does not restrict the operation of the clause to

the actual part of the automobile which breaks, and is to be interpreted

as meaning that the exclusion will not apply to damage done to any part

of the car by an intervening cause. However, the exclusion will apply to

any damage done to any part of the automobile solely by reason of the

mechanical breakdown.

[32]    Under Lunn (supra), the insurance contract excludes the insurer

from liability for any damage caused solely by a mechanical defect. The

court's rationale for this holding was that the expression "confined

to", followed by "any damage to the auto" established that the exclusion

was limited to damage to the auto caused solely by a  mechanical defect.

In order to determine whether the insurer is liable for the damage sued

for, it is necessary to determine whether the mechanical failure was the

sole proximate cause of the accident and the consequent damage. If it

was the sole proximate cause, then the insurer is not liable. If it was

not the sole proximate cause, then the insurance company is liable under

the comprehensive clause.

[33]    Upon examining the affidavits, the court finds that the

plaintiff took his automobile to the mechanic for purposes of a tune-up.

However, the affidavits never indicate that the automobile suffered from

damage due to a mechanical or electrical breakdown or failure prior to

the alleged negligence.

[34]    Although the exclusion in part D of the policy attempts to avoid

liability by the insurer for any damage to the automobile caused solely

by mechanical defects, the insurer remains liable for any damage brought

by an intervening cause.

[35]    Prior to this court applying the exclusion provision to the case

at bar, there must be a trial as to whether or not defendant C & S

Diesel was negligent in performing repair work on plaintiff's car. If,

after trial, defendant C & S Diesel is found to have acted negligently

with respect to plaintiff's car, then the insurance company is liable

under the comprehensive clause on the basis that the auto mechanic's

negligence is an intervening cause. If defendant C & S Diesel is

determined not to have acted negligently, then the insurer is not liable

by reason of the exclusionary clause.

[36]    Under CPLR 3212 (subd [b]), a motion for summary judgment shall

be denied if any party shall show facts sufficient to require a trial of

any issue of fact other than an issue as to the amount or the extent of

the damages.

[37]    Summary judgment is a drastic remedy and should not be granted

where there is any doubt as to the existence of a triable issue.

(Moskowitz v Garlock, 23 A.D.2d 943.) The very question of whether the

defendant's conduct amounts to negligence is inherently a question for

the fact trier in all but the most egregious instances. (See Siegel,

Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR

C3212:8, p 429.) In this case, that question can only be determined on

trial.

[38]    HOLDING

[39]    Plaintiff may be able to recover under an insurance policy where

damage is caused by the alleged negligence of an auto mechanic. The

negligent conduct of an auto mechanic causing damage to an automobile

can constitute a direct and accidental loss to a vehicle.

[40]    The exclusion which avoids coverage for damage due and confined

to mechanical or electrical breakdown or failure will only apply where

the damage is caused solely by mechanical defects.

[41]    This court must deny plaintiff's motion for summary judgment

since the affidavits raise a question of fact with regard to whether

defendant C & S Diesel was negligent. The trial court must determine

whether the auto mechanic acted negligently in the repair of plaintiff's

automobile before deciding whether the exclusion provision is applicable

to the case at bar.

[42]    In order to determine whether the insurer is liable for the

damage sued for in this case, it is necessary to determine whether the

defendant C & S Diesel acted negligently and if such negligence was the

sole proximate cause of the accident. If defendant C & S Diesel were not

negligent, then the insurer is not liable under the comprehensive

clause. If the mechanic was negligent and such negligence was the sole

proximate cause of the mechanical breakdown, then the exclusion will not

apply, and the insurer will be liable under the comprehensive clause.

[43]    Accordingly, the motion and cross motion for summary judgment

are denied.

[44]    CASE RESOLUTION

[45]    Accordingly, the motion and cross motion for summary judgment

are denied.