Advance Elec., Inc. v. U.S. Fidelity and Guar. Co., 86-3923
| Decision Date | 03 June 1987 |
| Docket Number | No. 86-3923,86-3923 |
| Citation | 818 F.2d 378 |
| Parties | ADVANCE ELECTRIC, INC., Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant-Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Paul J. Mirabile, Middleberg & Riddle, Metairie, La., for plaintiff-appellant.
Peter A. Feringa, Jr., Christoffer Friend, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before RUBIN, RANDALL and HIGGINBOTHAM, Circuit Judges.
Advance Electric appeals the grant of summary judgment for its insurer, United States Fidelity and Guaranty Co. Advance Electric argues that it should recover under its Special Multi-Peril Policy for costs incurred as a result of a fire that occurred while Advance Electric was repairing an electric motor for the Orleans Sewerage & Water Board. We are persuaded that Advance Electric's policy excluded coverage for such costs and affirm.
The parties do not dispute the facts. Advance Electric, Inc., contracted with the Sewerage and Water Board of New Orleans to rebuild an electric motor. The job required that Advance Electric heat varnish on the motor coils, under a tarpaulin; allow the motor to cool; remove the tarpaulin; and then replace the motor's housing.
The contract provided that Advance Electric was responsible for any damage during the progress of the work and for any damage by fire up to the time of acceptance of the contract. During the cooling phase, when no Advance Electric personnel were present on the job site, the tarp ignited, burning the varnish and the coils. Pursuant to the contract, Advance Electric repaired the fire damage and completed the job.
Advance Electric then sued its insurer, United States Fidelity and Guaranty Co., in state district court seeking damages under its Special Multi-Peril Policy for the costs incurred because of the fire. USF & G removed the case to the United States District Court for the Eastern District of Louisiana and moved for summary judgment. Advance Electric then filed a cross-motion for summary judgment. After a hearing, the district court granted USF & G's motion and dismissed the suit. Advance Electric appeals.
Advance Electric argues that USF & G should have reimbursed Advance Electric under the Special Multi-Peril Policy for the costs it incurred from the fire. The Special Multi-Peril Policy provides:
[USF & G] will pay on behalf of [Advance Electric] all sums which [Advance Electric] shall become legally obligated to pay as damages because of property damage to which this insurance applies....
(i) upon which operations are being performed by or on behalf of the insured at the time of the property damage arising out of such operations, or
(ii) out of which any property damages arises, or
(iii) the restoration, repair or replacement of which has been made or is necessary by reason of faulty workmanship thereon by or on behalf of the insured.
The district court concluded that the fire occurred while Advance Electric was "performing operations" on the electric motor. Thus, the court denied Advance Electric's claim.
Advance Electric argues that it was not performing operations when the fire occurred because the fire occurred in the middle of the night while no Advance Electric personnel were on the site. However, Advance Electric concedes that the job was in progress when the fire occurred. The motor rebuilding job consisted of several stages,...
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