Aetna Ins. Co. v. Waco Scaffold & Shoring Co., Inc.

• Decision Date: 16 August 1978
• Docket Number: No. 76-2299,76-2299
• Citation: 370 So.2d 1149
• Court: Florida District Court of Appeals
• Parties: AETNA INSURANCE COMPANY and Insurance Company of the State of Pennsylvania, Appellants, v. WACO SCAFFOLD & SHORING COMPANY, INC., etc., et al., Appellees.

Page 1149

370 So.2d 1149

AETNA INSURANCE COMPANY and Insurance Company of the State of Pennsylvania, Appellants, v. WACO SCAFFOLD & SHORING COMPANY, INC., etc., et al., Appellees.

No. 76-2299.

District Court of Appeal of Florida, Fourth District.

Aug. 16, 1978.

Larry Sands of Larry Sands, P. A., Daytona Beach, for appellants.

Leonard N. D'Aiuto of D'Aiuto, Walker & Buckmaster, Orlando, for appellee Waco.

DOWNEY, Chief Judge.

This case involves a claim by one insurance carrier against two other carriers for contribution arising out of a judgment for damages. Waco Scaffold and Shoring Company, Inc., for the use and benefit of Waco's excess carrier, Lloyds of London, sued Aetna Insurance Company and Insurance Company of the State of Pennsylvania to require contribution from them toward the payment of a judgment obtained against Waco. From a final judgment finding that appellee Waco was entitled to contribution, the appellant insurance carriers have appealed.

An understanding of the factual background is essential to a resolution of the issue between the parties. From a stipulation of facts presented to the trial court it appears that in 1968 American Pecco Corporation (Pecco) sold all of its shoring and beam assets, including literature pertaining to their use, to Waco Scaffold and Shoring Company (Waco). As part of the transaction Pecco provided products liability insurance coverage for Waco by having Waco added to Pecco's existing products liability policy as an additional insured as a vendor. This primary coverage was written by Aetna Insurance Company with Insurance Company of Pennsylvania (Pennsylvania) writing the excess coverage.

Following acquisition of these products from Pecco, Waco delivered certain shoring, beams and layout plans to McDonough Construction Company (McDonough) under a rental contract. McDonough was using the Pecco products to form a shoring structure to receive a concrete pour for an 8 inch slab roof on a Sears store that McDonough was constructing in Melbourne, Florida. On or about March 28, 1968, during one of the stages of pouring this roof, the shoring and beams collapsed causing one of McDonough's employees, Juliana R. Mason, to sustain severe and crippling injuries. As a result of this accident, a complaint was filed by Mason against Waco, Pecco and others, alleging alternative or concurrent acts on the part of Waco and the other defendants, charging that through either negligence or breach of implied warranties of its product Mason sustained injuries and damages. Waco's initial defense was provided by another insurance carrier, Aetna Life and Casualty Company (Aetna Life), which provided primary coverage for all claims being asserted by Mason against Waco up to $100,000. Lloyds of London provided excess coverage for Waco in the sum of $1,000,000.

Pecco was also sued by Mason and was being defended by counsel provided by Aetna Insurance Company. During pre-trial preparation, Waco, through counsel provided by Aetna Life, made demands upon Aetna Insurance Company and Pennsylvania to acknowledge coverage and provide a defense to Waco based upon the certificate of insurance adding Waco as an additional insured under the Aetna Insurance Company policy issued to Pecco.

Counsel for Waco, with authority from Waco and Aetna Life, agreed to defend the products claim on behalf of Aetna Insurance Company and Pennsylvania and did so through trial and verdict. During the course of the trial evidence was submitted against both Waco and Pecco on theories of negligence and breach of implied warranties of the product, and the jury was duly instructed upon those theories of liability. The trial judge refused all defense requests for special verdict findings on the theories presented and a general verdict was returned in favor of Pecco and against Waco for $1,000,000. Following the rendition of this general verdict, Aetna Insurance Company, through its attorney representing Pecco, discharged counsel retained to defend Waco on its behalf, and denied coverage for payment of any part of the judgment to be rendered against Waco and any obligation for additional cost of the defense to be incurred in connection with post-trial motions or appeals. Judgment ultimately was rendered against Waco for $1,000,000, and plaintiff's costs were taxed against Waco in the sum of $21,103.74. Waco unsuccessfully sought review in both the Fourth District Court of Appeal and the Supreme Court of Florida. The final judgment plus interest and costs was paid in full on behalf of Waco by Aetna Life and Casualty Company making a payment of $141,732.77, and by Lloyds of London making a payment of $1,085,661.19. In the case at bar the trial court entered a final judgment finding among other things that 1) appellants Aetna Insurance Company and Pennsylvania acknowledged coverage for part, but not all, of the liability alleged in Mason's complaint, 2) the general verdict against Waco did not indicate the basis upon which the jury found liability against Waco, 3) coverage was afforded for bodily injury arising out of the named insured's products, so that it was the condition of the goods that determined coverage and not the theory upon which recovery might have been sought (citing Sears Roebuck & Company v. Travelers Insurance Company, 261 F.2d 774 (7th Cir. 1958), 4) Count II alleged negligence by Waco in manufacturing and furnishing plans and specifications and directions when it should have known the weight of the concrete would cause the shoring to give way and injure Mason, 5) since some of the claims were admittedly covered by appellants' policy, the appellants were required to defend the insured against claims not covered and to pay any...