The plaintiff (Vappi) seeks to recover, under the terms of an insurance policy issued by the defendant (Aetna), for legal fees and engineering services incurred by Vappi in defending proceedings against it. The trial judge heard the case upon a statement of agreed facts, and ordered judgment for Vappi for $4,084.36. Aetna appealed.
In 1957 and 1958, coverage B of liability policies issued by Aetna to Vappi required Aetna to pay all sums which Vappi "shall become legally obligated to pay as damages because of injury to ... property ... caused by accident." Aetna also undertook to defend "any suit against ... [Vappi] alleging such injury ... even if such suit is groundless" and to "pay all expenses incurred by ... [Aetna and] all costs taxed against ... [Vappi]." Among exclusions from this coverage was liability for "injury to ... any property arising out of ... structural injury to any ... structure due (a) to grading of land, excavation ... filling ... pile driving ... caisson work, or (b) to moving, shoring ... raising or demolition of any ... structure or removal or rebuilding of any structural support thereof."
Vappi in its answers in these actions asserted, among other matters, the defence of the statute of limitations. About this time Vappi notified Aetna of these actions and demanded that it defend them. At least as early as March 9, 1961, Aetna or its attorneys learned of the equity suit. Aetna agreed, after some correspondence, to defend certain counts, reserving the right to contend that the policies afforded no coverage.
Counsel for Iovine and her corporation then asserted "that he understood ... when he consented to the dismissal of" the equity suit that "the defense of the [s]tatute of [l]imitations would not be raised." Vappi's counsel, without Aetna's assent, consented to a motion vacating the final decree. On April 25, 1961, Vappi (1) notified Aetna that the final decree had been vacated and that Iovine was seeking to amend the equity proceeding into an action at law, and (2) demanded that Aetna "handle ... [the] motion to amend." Aetna declined to do this. The motion was allowed and later the equity suit was consolidated with a new action at law by Iovine against Vappi. Aetna thereafter took no part in the defence of proceedings brought by Iovine and her corporation. The defence was conducted by Vappi's own counsel. There was a verdict for the defendants
1. Aetna, in its brief, argues principally that the allegations by Iovine and her corporation did not state any claim based on "accident" which, in view of the form of coverage B and the excavation exclusion, Aetna was bound to defend. Beyond the bare statement that Aetna did not waive "its rights arising from Vappi's delay ... in notifying Aetna" of the equity suit and "from Vappi's revivifying of ... [the] equity suit after ... final decree," Aetna makes no argument based upon the procedure followed by Vappi and its counsel. Under our rules, the absence of adequate supporting argument makes it unnecessary for us to consider any possible contentions by Aetna based upon the delay in giving notice or upon such procedure. See Rule 13 of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 698, as amended on November 5, 1962, 345 Mass. 787.
2. Aetna's obligation to defend is determined by the scope of the allegations made by Iovine and her corporation in the various proceedings. See Fessenden School, Inc. v. American Mut. Liab. Ins. Co. 289 Mass. 124, 130; Magoun v. Liberty Mut. Ins. Co. 346 Mass. 677, 681-682. No obligation to defend arose upon the original bill in equity which in substance merely asserted deprivation of access to the Iovine property as a result of Vappi's closing the passageway. In 1961 when specific negligent acts by Vappi were asserted, Aetna's duty to defend did arise if the allegations
Paragraph 17, subpars. c and d, of the amended bill in equity, and counts 7 and 8 of the action at law in fact tried, alleged (a) negligence not with certainty limited to excavation activity of a type within the excavation exclusion, and (b) injuries and damage of a character not clearly confined to what had been caused otherwise than by accident.
The somewhat general allegations by Iovine and her corporation would also permit proof of injuries which could be regarded, under our decisions, as caused by accident. Unintended or unforeseen consequences of reckless or negligent acts, and even of intentional acts, at least if not undertaken "with malice or intent to injure" the person or property hurt (see the D'Amico case, 345 Mass. 218, 223-224), may be within the definition of "accident." See Sheehan v. Goriansky, 321 Mass. 200, 204-205; New England Gas & Elec. Assn. v. Ocean Acc. & Guar. Corp. Ltd. 330 Mass. 640, 651-655; Nichols & Co. Inc. v. Travelers Ins. Co. 343 Mass. 494, 497; Couch, Insurance 2d, §§ 41:6-41:24; Appleman, Insurance Law and Practice, § 4492. Cf. Wrobel v. General Acc. Fire & Life Assur. Corp. Ltd. 288 Mass. 206, 209, 210-211; Bowen v. Lloyds Underwriters, 339 Mass. 627, 629. Cf. also Kuckenberg v. Hartford Acc. & Indem. Co. 226 F.2d 225, 226-227 (9th Cir.). This court will be slow to adopt any narrow construction of the term "accident" which will limit or defeat any coverage fairly intended to be given by a policy described by the insurer in such broad terms ("[c]omprehensive [g]eneral [l]iability [p]olicy") as was this policy. The D'Amico case recently reviewed the precedents and there is no occasion for repeating the discussion in that opinion.
Cases like Smith v. Travelers Ins. Co. 219 Mass. 147, and Henderson v. Travelers Ins. Co. 262 Mass. 522, relied upon by Aetna, were distinguished in the New England Gas & Elec. Assn. case, 330 Mass. 640, 651-652, on the ground that the coverage of the policy there considered "was not limited to accidental means as distinguished from accidental results." We need not now reconsidered the cases (see annotation, 166 A.L.R. 469) thus distinguished, for the present coverage B includes "damages because of injury to ... property ... caused by accident" (emphasis supplied). The breadth of interpretation given to the term "accident" by Massachusetts cases makes it unnecessary to
Order for judgment affirmed.