Aetna Ins. Co. v. Labor

• Decision Date: 01 September 1970
• Docket Number: No. 10760,10760
• Citation: 179 N.W.2d 271,85 S.D. 192
• Parties: AETNA INSURANCE COMPANY, a corporation, Plaintiff and Appellant, v. Robert LABOR and Black Hills Chair Lift Company, a corporation, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 271

179 N.W.2d 271

85 S.D. 192

AETNA INSURANCE COMPANY, a corporation, Plaintiff and Appellant, v. Robert LABOR and Black Hills Chair Lift Company, a

corporation, Defendants and Respondents.

No. 10760.

Supreme Court of South Dakota.

Sept. 1, 1970.

Costello, Porter, Hill, Banks & Nelson, Rapid City, for plaintiff and appellant Aetna Insurance Co.

Kellar, Kellar & Driscoll, Lead, for defendant-respondent Black Hills Chair Lift Co.

Bangs, McCullen, Butler, Foye & Simmons and James N. Clapp, Rapid City, for defendant-respondent Robert Labor.

WUEST, Circuit Judge.

The Black Hills Chair Lift Company, hereinafter referred to as 'Black Hills', operates a chair lift near Lead, South Dakota, which it used both winter and summer in connection with recreational activities. In addition to the chair lift, it operates mobile equipment such as ski-doos, totegotes, snow packers, caterpillar tractors, a snow plow, and other mobile equipment. Since 1962 Black Hills has continued to expand its recreational facilities and has had some type of construction underway each summer and fall except the year 1966. In 1967 the old chair lift was torn down and a new one built. It was necessary to pour concrete foundations for 15 steel towers. Black Hills utilized their equipment and employees for this purpose. Since the terrain was too steep for concrete trucks, small caterpillar tractors with front-end loading buckets owned by Black Hills were used to transport the concrete purchased by it to the foundations.

On August 18, 1967, defendant Labor was injured at the parking lot by one of the caterpillar tractors being operated by an employee of Black Hills while transporting concrete to a tower foundation.

Prior to November 1, 1966, Mr. Kenneth C. Kellar, President of Black Hills, purchased personal and property liability insurance from plaintiff, Aetna Insurance Company, hereinafter called 'Aetna.' Mr. Kellar advised Aetna's agent that Black Hills wanted:

'* * * the broadest possible coverage for all of its mobile equipment to cover all of its operations in connection with the maintenance, ownership, and use of its premises, both summer and winter; that defendant corporation (Black Hills) wanted this coverage because of the greater use of its mobile equipment in connection with its expanded activities'.

Aetna issued a liability policy to Black Hills effective November 1, 1966, for one year. The policy is the usual printed policy with space for typewritten insertions of coverage, descriptions and endorsements. A printed page of the policy contains the coverage and exclusions. At the top thereof in bold face print is the following:

COVERAGE FOR DESIGNATED PREMISES AND RELATED OPERATIONS IN PROGRESS OTHER THAN STRUCTURAL ALTERATIONS, NEW CONSTRUCTION AND DEMOLITION

Further down in this printed page under exclusions, the policy provides the insurance does not apply:

'(o) to bodily injury or property damage arising out of structural alterations which involve changing the size of or moving buildings or other structures, new construction or demolition operations performed by or on behalf of the named insured.'

A typewritten endorsement on a form provided by the company and attached to the policy provides:

'* * * coverage (is) ¹ afforded under this policy for Tote-Gote, Snow Packers and Ski-Doos, and other equipment used in...