Aetna Cas. & Sur. Co. v. C. P. Company, s. 50380-50382

• Decision Date: 11 April 1975
• Docket Number: Nos. 50380-50382,No. 1,s. 50380-50382,1
• Citation: 134 Ga.App. 552,215 S.E.2d 314
• Court: Georgia Court of Appeals
• Parties: AETNA CASUALTY & SURETY COMPANY v. C.P. COMPANY et al. AETNA CASUALTY & SURETY COMPANY v. Betty P. POWELL et al. AETNA CASUALTY & SURETY COMPANY v. Betty C. ALLEN et al

Page 314

215 S.E.2d 314

134 Ga.App. 552

AETNA CASUALTY & SURETY COMPANY v. C.P. COMPANY et al.

AETNA CASUALTY & SURETY COMPANY v. Betty P. POWELL et al.

AETNA CASUALTY & SURETY COMPANY v. Betty C. ALLEN et al.

Nos. 50380-50382.

Court of Appeals of Georgia, Division No. 1.

April 11, 1975.

Nall, Miller & Cadenhead, Edward S. White, Atlanta, for appellant.

Neely, Freeman & Hawkins, Albert H. Parnell, Richard P. Schultz, Atlanta, for C.P. Co.

Reeves & Collier, Rex T. Reeves, Merrell H. Collier, Atlanta, for Powell.

Scott Walters, Jr., East Point, for Allen.

Syllabus Opinion by the Court

WEBB, Judge.

These three actions in tort are before us on appeal by Aetna Casualty & Surety Company from the denial by the trial court of its motions for summary judgment. C.P. Company, one of the plaintiffs, appears to have been engaged in managing the building in which a fire occurred, and in the preparation of space for occupancy by tenants, and as such asserts its claim for damage because of the fire. Mrs. Powell and Mrs. Allen, the plaintiffs in the other two actions, seek recovery for the deaths of their respective husbands, who were employees of a subcontractor engaged in the installation of a parquet floor at the place and the time of the fire. The record indicates that there were two other deaths resulting from the fire.

Defendants and third-party defendants in addition to Aetna were Jones Construction Company; Coe and Payne Company; Wood-Mosaic Corporation; Overall Paint Company; Atlanta Flooring Company; Edwards & Portman, Architects; John C. Portman, Jr.; H. Griffith Edwards; Mrs. Roline Clarke Adair; Alan L. Ferry; Trammell Crow; Goodman Decorating Company, Inc.; Flintkote Company, Inc.; Peachtree Center, Inc.; Whitehead Realty Company; Mutual Life Insurance Company of New York; and Travelers Insurance Company. In the Powell and Allen cases C.P. Company is also a defendant.

A brief statement of the facts developed up to the time of the motions for summary judgment and pertinent to our consideration of these appeals is appropriate. At about 2:15 on the afternoon of December 5, 1968 a sudden fire occurred in the offices of a law firm located on the twentieth floor of the Atlanta Gas Light Tower Building, one of the towering office structures of the Peachtree Center complex in downtown Atlanta.

Construction of the building had begun about March, 1966, was substantially completed by October, 1968, other than tenant work, and finished altogether, including tenant work, about April, 1969. Jones Construction Company was the general contractor. In October, 1968 Jones executed a subcontract with Coe and Payne under which the latter would furnish labor and materials and install certain parquet floors in the law firm suite on the twentieth floor for $1,315. At the time and the place of the fire employees of Coe and Payne were installing the parquet floors, which had been manufactured and marketed by Wood-Mosaic, using upon the latter's specification an adhesive product known as R-65 manufactured and marketed by Overall Paint and sold to Coe and Payne by Atlanta Flooring Company.

Answers to interrogatories reveal that the R-65 adhesive was the 'immediate cause' of the fire, and that it 'is an extremely flammable solvent with a high vapor density,' the ignition of which could have been caused by various possible sources of electrical sparks and heat present when the adhesive was being applied immediately before the combustion. There seems to be no dispute as to the foregoing facts.

Aetna, the appellant herein, had in force policies of general liability insurance and workmen's compensation insurance that it had issued to Jones, the general contractor, and also policies of general liability insurance and workmen's compensation insurance that it had issued to Coe and Payne, the subcontractor. These policies contained a provision permitting, but not requiring, Aetna to inspect the insured's property and operations at any time.

Even so, without a written contract on the subject of engineering or safety inspections insofar as the record discloses, for some years prior to the construction of this building Aetna had assigned an engineering representative from its Safety Engineering Department to make visits at approximately monthly intervals to each of Jones' construction projects, and in 1963 and again in 1968, participated with Jones in the preparation of an Accident Prevention Manual for distribution to and use of Jones' job management and supervisory personnel.

Aetna's engineering representative was Raymond N. Walsh who deposed that in March, 1966 he was 'assigned primary responsibility for rendering the services to be provided by Aetna under its policies with J. A. Jones Construction Company (Jones), the general contractor in connection with the construction of the Atlanta Gas Light Tower building;' from that time until May, 1969, he made...