CH Leavell & Co. v. Fireman's Fund Insurance Co., 21180.
| Decision Date | 28 April 1967 |
| Docket Number | No. 21180.,21180. |
| Citation | 372 F.2d 784 |
| Parties | C. H. LEAVELL & COMPANY, a Texas corporation, and River Construction Corporation, a Delaware corporation, a Joint Venture, and Allison Steel Manufacturing Co., an Arizona corporation, Appellants, v. FIREMAN'S FUND INSURANCE COMPANY, a California corporation, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
COPYRIGHT MATERIAL OMITTED
Mark Wilmer, of Snell & Wilmer, Phoenix, Ariz., for appellants.
Philip A. Robbins, Craig R. Kepner, of Moore, Romley, Kaplan, Robbins & Green, Phoenix, Ariz., for appellee.
Before HAMLEY and JERTBERG, Circuit Judges, and BYRNE, District Judge.
This is an appeal from a decision of the District Court denying recovery to plaintiffs on an insurance policy.
Jurisdiction of the District Court is based on 28 U.S.C. 1332, and jurisdiction of this Court is conferred by Section 1291, Title 28, U.S.C.
The cause, as to liability of appellee, Fireman's Fund Insurance Company, was submitted to the District Court for decision on an "Agreed Statement of Facts", and several exhibits which were received in evidence. The agreed facts may be summarized as follows:
On or about November 28, 1961, C. H. Leavell & Company and River Construction Corporation, as a joint venture, (hereinafter referred to as "Leavell"), contracted with El Paso Natural Gas Company to construct and erect a single span pipeline suspension bridge over the Flaming Gorge Reservoir in Wyoming, near Dutch John, Utah. On or about December 1, 1961, Allison Steel Manufacturing Co., (hereinafter referred to as "Allison") entered into a subcontract with Leavell, under which subcontract Allison contracted to supply the required materials and construct and erect the bridge.
The specifications and design pursuant to which the bridge was to be constructed were prepared by or under the direction of El Paso Natural Gas Company and accompanied the "Invitation to Bid", which El Paso tendered to Leavell. They were submitted to Fireman's Fund Insurance Company (hereinafter referred to as "Fireman's Fund") prior to the time it executed the insurance policy upon which this suit has been brought.
Upon the award of the contract by El Paso to Leavell, Leavell applied to Fireman's Fund for a policy of insurance in favor of Leavell "For their account and/or the account of their Subcontractors" and Fireman's Fund issued its "Bridge Builders All Risks" Form insuring said insureds in the sum of $767,206.00 on property described as "Single Span Suspension Pipeline Bridge to be located over the Flaming Gorge Reservoir." This policy of insurance was a form policy prepared by Fireman's Fund.
Allison prepared and submitted to Leavell drawings and erection procedure plans detailing and showing how Allison proposed to accomplish the construction and erection of the bridge for approval by Leavell. These plans and erection procedure drawings were not included with the Plans and Specifications shown to and considered by Fireman's Fund prior to the execution and delivery of the policy of insurance by said Company.
The Plans and Specifications for the bridge called for the erection of a high, generally "H" shaped tower on each side of the Flaming Gorge Reservoir supporting a set of 6 "main" cables anchored to the ground substantially back from the base of each tower and strung over the top of the tower across the Reservoir Gorge to the top of the opposite tower and, in turn, anchored in the ground substantially back from the base of the tower. These cables were 2¼ in diameter and substantially heavier in weight than the main cables.
Since the main cables rested on the top of the tower it was necessary for Allison to devise a means for lifting each cable to move it to its permanent resting place. A form of derrick was designed and constructed by Allison in its plant in Phoenix for this purpose. This derrick consisted of a steel beam at one end of which provision was made for bolting it to the top of the tower, (one derrick to be fastened at each corner of the tower) so that it extended up from the top of the tower, in appearance in place like an extension of the steel beam constituting the side of each tower. At the other end of this beam a piece of steel was welded at right angles to the beam giving the derrick, in place, the appearance of an inverted "L". At the end of this steel piece so welded to the steel beam there was a hole so that a block and tackle could be fastened to this end and employed to lift and move each main cable into place.
These derricks as designed by Allison were intended to be used only for lifting and moving the main cables and they were not designed or intended for use in lifting and placing the wind boom cables in position or in lowering the booms into place horizontally. The erection procedure drawings and instructions as prepared by Allison directed the use of these derricks only in lifting and placing the main cables.
The erection procedure drawings and instructions provided that the wind boom cables were to be lifted and positioned through use of a block and tackle attached to the corner of the tower at the top of the tower.
Allison's workmen, after positioning the main cables through use of these derricks, then attempted to also use one of these derricks to position the wind boom cable on the boom and to lower the boom into place. Due to the fact that the weld fastening the steel to the steel beam leg of the derrick (being the steel plate to which the block and tackle was attached) was defective, the fact that the derrick was not designed for the heavier load of the larger wind boom cables, and the amount of strain due to the greater angle of pull against this steel plate, the weld gave way and the wind boom cable fell to the ground, shearing off the wind boom from the tower and causing other extensive damage to the tower and the cable itself.
The reason the workmen did not follow Allison's erection procedure and drawings in attempting to position this wind boom cable has not been established. The derricks were to have been removed from the top of the tower when they had served their purpose as they were not a part of the permanent installation.
An "all risks" policy creates a special type of coverage extending to...
To continue reading
Request your trial
-
Ass'n of Apartment Owners of Imperial Plaza v. Fireman's Fund Ins. Co.
...losses ... unless the policy contains a specific provision expressly excluding the loss from coverage.” C.H. Leavell & Co. v. Fireman's Fund Ins. Co., 372 F.2d 784, 787 (9th Cir.1967). Additionally, unlike a specific peril policy, the insured “does not have to prove that the peril proximate......
-
Kilroy Industries v. United Pacific Ins. Co.
...contains a specific provision expressly excluding the loss from coverage." (Emphasis in original.) C.H. Leavell & Co. v. Fireman's Fund Insurance Co., 372 F.2d 784, 787 (9th Cir.1967). The rules described in part II(B)(2) above, regarding the construction of insurance contracts generally, a......
-
Standard Structural Steel v. Bethlehem Steel Corp., Civ. No. H-75-176
...Risks' Insurance" (1963). See also Avis, supra, 195 S.E.2d at 547; Dow Chemical, supra, at 386 (1981); C.H. Leavell & Co. v. Firemen's Fund Ins. Co., 372 F.2d 784, 787 (9th Cir.1967), rehearing denied The North Carolina Supreme Court when considering both the origins and currently-understoo......
-
Kraemer Bros., Inc. v. U.S. Fire Ins. Co.
...283 N.C. 142, 195 S.E.2d 545 (1973); Aetna Casualty & Surety Co. v. Yates, 344 F.2d 939 (5th Cir. 1965); C. H. Leavell & Co. v. Fireman's Fund Ins. Co., 372 F.2d 784 (9th Cir. 1967); Assoc. Engineers, Inc. v. Am. Nat. Fire Ins. Co., 175 F.Supp. 352 (N.D.Cal.1959); Chute v. North River Ins. ......