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Vol. 6, Iss. 7
September 13, 2017

Raising Geese In Your Family Room: Insurer Can’t Duck Its Duty To Defend

You see a lot of unusual stuff in coverage cases. It’s the nature of the beast. If people always did the right thing, or if things always turned out as planned, there would be no coverage case.

But someone raising geese in their family room is strange, even by coverage case standards. The only thing I raise in my family room is the volume on the television if my wife asks me to get off the sofa and do something.

I’ll let the court describe the situation that gave rise to the suit, that gave rise to the coverage decision, in Metropolitan Property & Casualty Ins. Co. v. Sarris, No. 15-780 (N.D.N.Y. July 28, 2017). I couldn’t possibly do a better job:
“The Schillaci Complaint further alleged that George [Sarris] ‘began raising ducks and geese in the family room of the [Sarrises’] dwelling.’ [in Clifton Park, New York] He also ‘began to entice both native and domesticated ducks and geese onto his property by putting out feed for these fowl.’ As a result of George’s efforts, the number of waterfowl on the Sarrises’ property ‘increased exponentially,’ and this ‘escalat[ion]’ in the ‘fowl population’ "began to interfere increasingly with Schillaci and Newell’s quiet enjoyment of their property.’ Specifically, the large population of waterfowl on the Sarrises’ property ‘increased the noise which began at dawn or before . . . to the point [that] it disturbed both Schillaci and Newell’s sleep and the use of their property.’ Another unfortunate consequence of George’s ‘intentional actions’ in raising waterfowl on his property was an ‘increase[ in] the amount of guano from the birds which was naturally deposited on [Schillaci and Newell’s] house, lawn, cars and other possessions.’ Eventually, ‘the noxious odor and manure’ coming from the waterfowl prevented Schillaci and Newell from ‘us[ing] the exterior of their home or their yard during the warmer weather.’”

Anyway, Sarris is a lengthy decision and addresses many things, including a tedious 10 year late notice issue. The most interesting aspect of the opinion is whether there was an “occurrence” (accident) under Sarris’s homeowners policy, for purposes of coverage for the suit brought by his neighbor. That suit alleged private nuisance and trespass.

For purposes of the “occurrence” issue, it should be known that the neighbors tried to work things out but Sarris allegedly did nothing to abate the situation. Sarris sought a variance from the zoning board to raise waterfowl. A petition, signed by over fifty of Sarris’s neighbors, opposed the application for a variance. Sarris’s application for a variance was denied and he was given 60 days to remove the ducks and geese. Sarris refused and was fined for his noncompliance.

The competing “occurrence” (accident) arguments were exactly what you would expect: the insurer argued that the injuries alleged in the complaint were caused by the intentional and purposeful acts of the Sarrises, The Sarrises argued that the complaint triggered the insurer’s duty to defend because they “did not intend to cause the articulated damages of guano [and] excessive noise.”

The court’s accident analysis is lengthy. It set out various definitions of “accident” under New York law, including: (1) In deciding whether a loss is the result of an accident, it must be determined, from the point of view of the insured, whether the loss was unexpected, unusual and unforeseen; and (2) accidental results can flow from intentional acts. The damage in question may be unintended even though the original act or acts leading to the damage were intentional.

To make a long story short, following a detailed analysis, including a discussion of New York case law on the issue, the court held that the complaint alleged an accident, despite the intentional actions of Sarris:

“Here, the Schillaci Complaint alleged that George Sarris’s decision to raise waterfowl on his property harmed Schillaci and Newell by ‘increas[ing] the noise which began at dawn or before’ and ‘increas[ing] the amount of guano . . . which was . . . deposited on the Plaintiffs' [property].’ The complaint suggested that ‘the massive increase in fowl population [was] caused by Sarris’[s] intentional actions.’ And it emphasized that even though Schillaci and Newell had informed George of the problems allegedly caused by the waterfowl, he ‘did nothing to abate the continuing nuisance.’ But the Schillaci Complaint failed to provide any factual allegations suggesting that the Sarrises intended to injure Schillaci and Newell by ‘carpet[ing] their lawn, property and possessions [with guano]’ and subjecting them to the ‘acrimonious din [of the waterfowl].’ True, the complaint suggested that George acted intentionally in raising the waterfowl, but it is well established that ‘[t]he damage in question may be unintended even though the original act or acts leading to the damage were intentional.’ And a fair reading of the complaint is that the injuries to Schillaci and Newell ‘ar[ose] out of a chain of unintended though expected or foreseeable events that occurred after an intentional act.’”. (emphasis added).

The court rejected other arguments that insurers often make when arguing that injury or damage was not caused by an accident: “[O]ne might infer an intent to harm from the warnings Schillaci and Newell gave the Sarrises about the problems allegedly caused by the waterfowl. According to the Schillaci Complaint, George learned that his neighbors believed the waterfowl were making their lives miserable, yet he refused to do anything about it. The trouble is that courts have rejected the notion that an intent to cause injury can be gleaned from an insured’s decision to persist in potentially harmful conduct in the face of warnings about its negative consequences.”

The court seemed sympathetic to the neighbors’ plight. After all, they were subject to noise before dawn their lawn, property and possessions were “carpeted” with guano. But, despite this, as far as New York law was concerned, Sarris’ conduct was just “an unfortunate lack of manners.” Wow, that’s rough. To me, an unfortunate lack of manners is not removing your bag from the seat next to you on the train when someone wants to sit down. But I’m not a hardened New Yorker.

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