City of Wilmington v. Pigott

307 S.E.2d 857 (1983)

CITY OF WILMINGTON v. Sheldon PIGOTT and wife, Janice Pigott, and The Travelers Insurance Company.

No. 825DC1194.

Court of Appeals of North Carolina.

October 18, 1983.

*858 Martin, Wessell & Owens by John C. Wessell, III, Wilmington, for plaintiff-appellee.

Franklin L. Block, Wilmington, for defendant-appellees.

Crossley & Johnson by Robert W. Johnson, Wilmington, for defendant-appellant.

ARNOLD, Judge.

Defendant Travelers Insurance contends that the court erred in ordering it to provide coverage to the City of Wilmington in that there was no "occurrence" within the meaning of the policy. We agree. The trial court's order is reversed.

Section 2, Coverage C of the insurance policy in question provides in part:

The Company will pay on behalf of the insured all sums which the insured shall *859 become legally obligated to pay as damages because of bodily injury or property damage to which the insurance applies, caused by an occurrence ... (emphasis added).

The definition section of the policy provides that "`occurrence' means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from a standpoint of the insured." (emphasis added).

From the facts at hand then, in order for there to have been an "occurrence," ordering the Pigotts to remove their two greenhouses must have constituted an "accident" which resulted in property damage "neither expected nor intended" by the City.

Both plaintiff and defendant rely on the case of Edwards v. Akion, 52 N.C.App. 688, 279 S.E.2d 894, aff'd, 304 N.C. 585, 284 S.E.2d 518 (1981). In that case a garbage collector in the City of Raleigh became involved in an argument with the plaintiff over whether he should remove a tire from her backyard. The City had in effect a liability insurance policy which defined "occurrence" in a manner which is essentially the same as the definition involved in the case at hand. This Court held in Edwards that an intentional assault committed by a city employee, when neither expected nor intended by the City, was an occurrence if committed within the scope of the employer's duties. 52 N.C.App. at 693, 279 S.E.2d at 897.

Defendant contends that the facts of Edwards are substantially different from those being considered here. We agree. In Edwards, it was clearly not expected or intended that the city employee assault residents along his route. His action did constitute an "accident" as defined by the policy.

The words "accident" and "accidental" have generally been held by the courts to mean "that which happens by chance or fortuitously, without intention or design, and which is unexpected, unusual, and unforeseen." 43 Am.Jur.2d, Insurance, § 559, Skillman v. Insurance Co., 258 N.C. 1, 7, 127 S.E.2d 789, 793 (1962). We cannot label Inspector Rowan's order to the Pigotts to remove their greenhouses an "accident." The decision did not happen by chance and was not unexpected, unusual or unforeseen. It was certainly intended by the City that as chief building inspector Rowan would exercise his discretion to make these sorts of decisions as he saw fit. While Rowan may have mistakenly or erroneously interpreted the Wilmington building code, his conduct did not amount to an "accident." Since there was no showing at trial that the act of the City constituted an "accident," we find that there was no "occurrence" within the meaning of the multi-peril insurance policy. The trial court's order is, therefore, reversed.

Reversed.

PHILLIPS and EAGLES, JJ., concur.