Harleysville Mutual Casualty Company v. Harris & Brooks, Inc.

Singley, J., delivered the opinion of the Court. Harris & Brooks, Inc. (Harris), the plaintiff below and appellee here, is a corporation engaged in the business of excavating, clearing and grading land. In September, 1961, Harris entered into a contract to “clear, burn and smooth up” a wooded tract of some 15 acres at Aspen Hill Road and Georgia Avenue in Montgomery County. Gillis, an employee of Harris, testified that on Saturday, September 2, he operated a caterpillar loader at the site where he “cleared the trees and put them in appropriate piles and burned them.” There were somewhere between 3 and 5 piles, 10 to 12 feet in height, located at a distance of between 300 and 400 feet from the nearest buildings.

Fuel oil was poured on the piles, ¹⁵⁰ which were set afire between 6:00 and 6:30 A.M. on Saturday, September 2. There was further testimony that while there was no wind when the fires were set, a breeze came up at about 9:30 A.M. on September 2 and “stayed up a little breezy the rest of the day;” that on Sunday, September 3, a summer storm came up, the wind blew quite hard, and the fires were extinguished on the advice of the fire marshal. Climatological data introduced into evidence by stipulation, showed that light and variable winds had been recorded on the days in question at Washington National Airport, some 15 miles distant from the site. Owners of houses nearby testified that rubber tires had been added to the piles; that the fires produced a heavy black smoke; and that smoke and soot from the fires damaged their properties and contents of their houses on September 2 and 3.

There was evidence that the first damage was sustained during the evening and night of September 2, well in advance of the summer storm of September 3. Eight claims, totalling some $16,000, were asserted by neighboring property owners against Harris for smoke and soot damage. These were ultimately the subject of a suit against Harris in Montgomery County, which resulted in the entry of a judgment in favor of the property owners of $2,595.00 for damages sustained by them. On October 11, 1960, Harris had entered into a contract of insurance with Harleysville Mutual Casualty Company (Harleysville), the appellant.

The policy, which was written for a term of one year and was in effect on September 2 and 3, 1961, provided in “Coverage C” that the insurer would “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.” Harris, which had defended the damage suit, satisfied the judgment and entered suit against Harleysville for the amount paid the property owners together with counsel fees incurred in defending the suit. Harleysville denied liability under the insurance contract, contending that the damage suffered by the neighboring property owners had not been caused by accident. This ¹⁵¹ appeal was taken from the judgment of the lower court entered against Harleysville and in favor of Harris for $3,100.00 (of which $2,500.00 represented payments made in satisfaction of the judgment and $600.00 counsel fees) plus costs. The only question raised by this appeal is whether the events which gave rise to the entry of judgment against Harris in the earlier case brought by the property owners amounted to damage “caused by accident.” The lower court answered this question in the affirmative.

With this conclusion we do not agree. The Shorter Oxford English Dictionary (2d Ed. 1939) defines accident as “Anything that happens, an event; especially an unforeseen contingency * * Webster’s Twentieth Century Dictionary (1950) expands this definition: “a happening; an event that takes place without one’s foresight or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected * * *." We have previously held that in interpreting insurance contracts words are to be given their customary and normal meanings. Smith v. Maryland Casualty Co., 246 Md. 485, 491 , 229 A. 2d 120 (1967); Pennsylvania Threshermen & Farmers Mut. Cas.

Ins. Co. v. Travelers Ins. Co., 233 Md. 205 , 196 A. 2d 76 (1963); U. S. F. & G. v. National Paving Co., 228 Md. 40 , 178 A. 2d 872 (1962) ; Haynes v. American Casualty Co., 228 Md. 394 , 179 A. 2d 900 (1962). The rationale employed by the court below was essentially this: There was no intent to damage.

Harris had conducted similar operations in the past without damage. There were no unusual circumstances present. The damage was unexpected and unforeseeable and therefore accidental. This court has previously held that an accidental result need not, in every case, be the consequence of the use of accidental means. 1 Haynes v. American Casualty Co., supra.

In other words, the fact that an injury is caused by an intentional act does not preclude it from being caused by accident if in that act, ¹⁵² something* unforeseen, unusual and unexpected occurs which produces the result. In the Haynes case, where the insurance policy provision was substantially