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Tonkin v. California Ins. Co.

Court of Appeals of the State of New York
Jun 7, 1945
294 N.Y. 326 (N.Y. 1945)

Summary

holding that a fire insurance policy which excluded coverage due to collision only excluded a loss in which collision was "the primary and exclusive cause"

Summary of this case from Great Northern Ins. Co. v. Dayco Corp.

Opinion

Submitted April 18, 1945

Decided June 7, 1945

Appeal from the Supreme Court, Appellate Division, First Department, WATSON, J.

Samuel Sumner Goldberg and Irving Hatterer for appellant.

John L. Fletcher for respondent.


For purposes of this controversy it is undisputed that while the plaintiff was driving his car in the second or fast lane of traffic on Queens Boulevard in the city of New York near the intersection of 69th Street, he noticed that his car was "smoking and burning under the dashboard". As he attempted to get his vehicle under control by applying the brake and pulling over to the right side, a gust of smoke came up from the dashboard, and he collided with another vehicle which was standing still waiting for the traffic signal to change. The plaintiff's vehicle was damaged to the extent of $515.30, divided into a fire loss of $38.00 and a collision loss of $477.30.

The plaintiff had insured his automobile in the defendant company. The defendant concedes the fire loss but disclaims liability for that portion of the damage resulting from the collision on the ground that it was not covered by its policy. The policy of insurance contained, among other things, a coverage clause in the following language:

"COVERAGES (as hereinafter defined)

A. COMPREHENSIVE — Loss of or Damage to the Automobile, Except by Collision but including Fire, Theft and Windstorm

* * * * * * *

INSURING AGREEMENTS

(Subject to the limits of liability, exclusions, conditions and other terms of this policy.)

INSURANCE COVERAGES DEFINED

COVERAGE A — COMPREHENSIVE — LOSS OF OR DAMAGE TO THE AUTOMOBILE, EXCEPT BY COLLISION

Any loss of or damage to the automobile except loss caused by collision of the automobile with another object or by upset of the automobile or by collision of the automobile with a vehicle to which it is attached. Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset."

The language of this policy presents a novel question of construction. In attacking the problem we are not unmindful of the well settled principle "that if a policy of insurance is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the policyholder and against the company" ( Hartol Products Corp. v. Prudential Insurance Co., 290 N.Y. 44, 49, and cases cited therein). We know of no better guide in a situation of this sort than "the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract." ( Bird v. St. Paul F. M. Ins. Co., 224 N.Y. 47, 51; Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81, 84; World Ex. Bank v. Com. Casualty Ins. Co., 255 N.Y. 1, 5; Johnson v. Travelers Insurance Co., 269 N.Y. 401, 408; Hartol Products Corp. v. Prudential Insurance Co., supra; Block v. Standard Ins. Co. of N.Y., 292 N.Y. 270.) Applying this general principle it is reasonable to suppose that the plaintiff in purchasing insurance for his automobile sought coverage against the named risks and that the fair meaning and use of the word "comprehensive" included those damages which an ordinary individual would reasonably and naturally regard as incidental to or flowing from the hazard insured against.

The policy language is definite enough to exclude loss when collision is the primary and exclusive cause, and it would do so here except for the fact that fire — the hazard insured against — was the factor causing the driver to lose control of the vehicle and was so closely associated with it in point of time and character as to constitute the proximate producing cause of the collision.

Analogous situations have arisen under fire policies which exclude damage by explosion, wherein the courts have held that damage from an explosion caused as an incident to a fire was within the coverage clause of the policy. ( Wheeler v. Phenix Ins. Co., 203 N.Y. 283.) Damage from concussion caused by explosion resulting from fire has been deemed covered. ( Cook v. Continental Ins. Co., 124 So. 239 [Ala.].) Also, a policy insuring against direct loss by theft excluding collision has been held to cover collision damages occurring while a car was in possession of the police and before return to owner. ( Bolling v. Northern Ins. Co., 280 N.Y. 510.)

The judgments should be reversed and judgment directed for the plaintiff in accordance with this opinion, with costs in all courts to the appellant.

LEHMAN, Ch. J., LOUGHRAN, LEWIS and CONWAY, JJ., concur; DESMOND and THACHER, JJ., dissent and vote to affirm on the ground that the damage to plaintiff's automobile was from collision, a cause plainly excluded from the coverage of the policy sued upon, by specific language therein contained.

Judgment accordingly.


Summaries of

Tonkin v. California Ins. Co.

Court of Appeals of the State of New York
Jun 7, 1945
294 N.Y. 326 (N.Y. 1945)

holding that a fire insurance policy which excluded coverage due to collision only excluded a loss in which collision was "the primary and exclusive cause"

Summary of this case from Great Northern Ins. Co. v. Dayco Corp.

applying proximate cause test to hold that covered risk of fire, rather than excluded risk of collision was cause of loss, where blinding smoke from fire caused driver to collide with another car

Summary of this case from World Trade Center Properties v. Hartford Fire

noting the "well settled principle 'that if a policy of insurance is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the policy holder and against the company' "

Summary of this case from In re Viking Pump, Inc.

noting the "well settled principle 'that if a policy of insurance is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the policy holder and against the company'"

Summary of this case from Viking Pump, Inc. v. Century Indem. Co.

In Tonkin v. California Ins. Co. (294 N.Y. 326) the policy on a motor vehicle covered damage due to fire; but it expressly excepted collision from coverage, and amplified this by an express condition that "loss caused by collision of the automobile with another object or by upset" was not covered (p. 328). While driving in traffic the assured noticed some smoke coming out of the dashboard; the smoke seems to have interfered with his vision; and in turning to the right to get out of traffic he had a collision with another car.

Summary of this case from Lekas Corp. v. Travelers Ins. Co.

In Tonkin the insured's automobile collided with another vehicle after smoke from fire under the dashboard had caused the insured to lose control of the vehicle.

Summary of this case from Morrow v. Aetna Cas. Sur. Co.
Case details for

Tonkin v. California Ins. Co.

Case Details

Full title:SAMUEL N. TONKIN, Appellant, v. CALIFORNIA INSURANCE COMPANY OF SAN…

Court:Court of Appeals of the State of New York

Date published: Jun 7, 1945

Citations

294 N.Y. 326 (N.Y. 1945)
62 N.E.2d 215

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