Michaels v. City of Buffalo

OPINION OF THE COURT

Lawton, J.

On January 12, 1986, plaintiff’s decedent, John Michaels, had difficulty breathing, and his daughter-in-law called for assistance. In response, an ambulance operated by Memorial Ambulance Service, Inc. (Memorial) arrived and the attendants administered oxygen to Michaels. The attendants then placed him into the ambulance, but it could not be restarted and a radio call was placed for another ambulance that arrived shortly thereafter. Michaels was then transported by the second ambulance to Millard Fillmore Hospital, where he died approximately 20 minutes later.

An action was brought by decedent’s estate against Memorial alleging that the failure of the first ambulance to start was due to the negligent maintenance of the vehicle, and that the delay caused or contributed to decedent’s death. Lumbermen’s Mutual Casualty Company (Lumbermen’s), Memorial’s automobile insurer, disclaimed coverage on the ground that the loss did not arise out of an "accident”. Memorial then impleaded Lumbermen’s, alleging that the automobile policy required it to defend and indemnify Memorial. Lumbermen’s brought a motion for summary judgment seeking a declaration that it did not have a duty to defend or indemnify Memorial, alleging that the delay did not constitute an "accident” within the meaning of the policy. Memorial cross-moved for summary judgment declaring Lumbermen’s duty to defend and indemnify it. Supreme Court granted Memorial’s cross motion and declared that the policy affords coverage for injuries that are caused by the negligent maintenance of the ambulance and that Lumbermen’s is required to defend Memorial in the action against it.

*119The automobile insurance policy issued by Lumbermen’s to Memorial provided coverage for bodily injury or property damage caused by an "accident” arising from the use, ownership or maintenance of a covered vehicle. Reduced to its essence, plaintiff’s claim is that the delay in taking Michaels to the hospital, which arose from Memorial’s negligent maintenance of the ambulance, was an "accident” within the meaning of the policy. We disagree.

The term "accident” means an unexpected, unusual or unforeseen event and must be construed " 'in accordance with its understanding by the average man * * * who, of course, relates it to the factual context in which it is used’ ” (Ford Nursing Home Co. v Fireman’s Ins. Co., 86 AD2d 736, 737, affd 57 NY2d 656, quoting Miller v Continental Ins. Co., 40 NY2d 675, 676). Although we agree with the dissent that the breakdown of an ambulance while in service constitutes a "use” of the vehicle (see, Oakridge Community Ambulance Serv. v United States Fid. & Guar. Co. (278 Ore 21, 563 P2d 164), we disagree with the dissent that the resulting delay constitutes an "accident” within the meaning of the policy. Indeed, delays resulting from a vehicle’s mechanical failure are not unexpected, but, rather to the average motorist are the natural course of events.

Moreover, there are many ways besides mechanical failure that a delay in an ambulance transporting a patient to a hospital may arise, e.g., driving too slowly, taking the wrong route, and failing to monitor traffic reports to avoid unfavorable traffic conditions, to name only a few. No one would argue, however, that the resulting delays constitute an "accident” to bring the resulting bodily injuries or property damage within coverage.

Similarly, in Employers’ Commercial Union Ins. Co. v Danches (311 So 2d 758, 759, cert denied 327 So 2d 32 [Fla]), the court held that "mere delay by a driver of a motor vehicle will not occasion liability under a policy which also requires an accident to have occurred prior to liability attaching”. That the delay here was caused by an unintentional mechanical failure does not change that conclusion (see, Macon-Bibb County Hosp. Auth. v Continental Ins. Co., 196 Ga App 399, 396 SE2d 50). The dissent does not cite any authority to the contrary.

The dissent seems to conclude that, because the vehicle was an ambulance, rather than a car, its automobile liability *120policy, even though identically worded to that of a car policy, should be interpreted differently. That the vehicle was an ambulance may play a role in determining issues of general tort liability or contractual liability, but that fact is irrelevant insofar as determining whether an unintentional delay is an accident within the meaning of the terms used in an automobile policy.

Accordingly, the order of Supreme Court should be reversed, the cross motion denied, the motion granted, and judgment granted in favor of Lumbermen’s declaring that it does not have a duty to defend or indemnify Memorial in the action brought by plaintiff.