Aetna Insurance Co. v. Getchell Steel Treating Co.

• Decision Date: 16 May 1968
• Docket Number: 18924.,No. 18923,18923
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: AETNA INSURANCE COMPANY, Appellant, v. GETCHELL STEEL TREATING COMPANY, Inc., Appellee. COMMERCIAL UNION ASSURANCE COMPANY, Ltd., Appellant, v. H & L CORPORATION, Appellee.

395 F.2d 12 (1968)

AETNA INSURANCE COMPANY, Appellant, v. GETCHELL STEEL TREATING COMPANY, Inc., Appellee.

COMMERCIAL UNION ASSURANCE COMPANY, Ltd., Appellant, v. H & L CORPORATION, Appellee.

Nos. 18923, 18924.

United States Court of Appeals Eighth Circuit.

May 16, 1968.

COPYRIGHT MATERIAL OMITTED

Lawrence Zelle, of Robins, Davis & Lyons, Minneapolis, Minn., for appellants; William B. Stukas, Minneapolis, Minn., on the brief, reply brief and supplemental reply brief.

Frank Claybourne, of Doherty, Rumble & Butler, St. Paul, Minn., for appellees; William H. Bast, St. Paul, Minn., on the brief.

Before MATTHES, GIBSON, and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

The Aetna and Commercial insurance companies appeal from a judgment of the District Court requiring Aetna to pay the Getchell Steel Treating Company $28,571.48 for damage to two electrical furnaces and requiring the Commercial Union Assurance Company, Ltd., to pay the H & L Corporation, a wholly-owned subsidiary of Getchell, $1,865¹ for damage to its building and $4,735 for damage to an electrical control panel and its contents. The Court found that the insurers were obligated to make these payments under standard Minnesota fire insurance policies issued to the insureds.

We affirm.

Getchell was in the business of heat treating various steel components for industrial use. It occupied, under lease, a Minneapolis building owned by H & L. It used two electrical furnaces in its heat treating process, and electrical power was distributed to the furnaces through the electrical control panel.

On Sunday, January 30, 1966, Lindstrom, a Getchell employee, was informed that the power had failed. Upon confirming that fact, he called Timm, the plant electrician. Timm examined the panel and found that the main circuit breaker was open. He also found evidence of electrical arcing on the copper bus bars, and proceeded to clean them and the bakelite insulators separating them by wiping away condensation and dust. He then reactivated all the circuits.

The District Court's findings as to what occurred thereafter are stated succintly in its opinion and, in our view, are supported by substantial evidence:

"Approximately one minute after the restoration of electrical power, severe electrical arcing began in the control panel, accompanied by some burning, smoke and soot. There was a loud noise described by Mr. Timm as an electrical explosion. `* * * within three seconds after the commencement of the electrical short-circuiting, a "self-sustaining" fire existed. * *\' (Emphasis added.) The circuit breaker on the control panel did not release as it was designed to do and approximately ten to 30 seconds after the arcing began the fuses on the pole outside burned out and electrical power was interrupted. * * * A fire continued to burn within the control panel for approximately five or six minutes, accompanied by extensive smoke and soot. * * *

* * * * * *

"* * * 90% of the damage to the control panel occurred within the first ten seconds after the electrical arcing began."

* * * * * *

"The electrical control panel was rendered inoperable as a result of the occurrence. The solid copper bus bars were melted from the heat of the arc. The insulation on the wiring near the bus bars was charred and burned. The bakelite insulators in the vicinity of the electrical arcing were charred and carbonized. The upper portions of the control panel were covered with smoke and soot, and flashover arcing had occurred within some of the branch circuit breakers. The main circuit breaker was inoperable. * * *

"As a result of the deprivation of electrical energy to the salt bath furnaces, the salt within them solidified or `froze\', causing damage to the furnaces * * *."

The insureds submitted claims to their respective companies contending that all damages to the building, the control panel and the furnaces were covered risks. The insurers refused to pay the claims arguing that the losses were excluded from coverage by the "electrical apparatus clause:"

"This Company shall not be liable for any loss resulting from any electrical injury or disturbance to electrical appliances, devices, fixtures or wiring caused by electrical currents artificially generated unless fire ensues. And if fire does ensue, this Company shall be liable only for its proportion of loss caused by such ensuing fire."

The insured then brought separate actions in Minnesota state court. They were removed by the insurance companies to federal court,² where they were subsequently consolidated and tried by the court without a jury.

The trial court concluded: (1) that the fire occurring within the control panel was an "ensuing fire," and (2) that all of the damage to the building, seventy per cent of that to the control panel and all of the damage to the furnaces resulted from the "ensuing fire." We believe its conclusions were proper.

(1) The fire occurring within the control panel was an "ensuing fire."

We are convinced that the "fire" that co-existed with the electrical disturbance from the first through the tenth to thirtieth second, was an "ensuing fire" within the meaning of the policies. In so holding, we join the District Court in rejecting the insurers' contention that a fire only becomes an ensuing one after the termination of the electrical disturbance (i. e., the electrical current interrupted).

"Ensuing fire" is neither defined in the policy, compare, Niagara Mohawk Power Corp. v. Aetna Ins. Co., 15 App.Div.2d 390, 224 N.Y.S.2d 536 (1962), nor the subject of construction by the Minnesota Supreme Court. We must, therefore, attempt to determine the meaning that the Minnesota court would give to it.³ In so doing, we follow the guidelines of that court. LeRoux v. Edmundson, 276 Minn. 120, 148 N.W.2d 812 (1967); Benson v. Continental Cas. Co., 275 Minn. 544, 146 N.W.2d 358 (1966); Lang v. General Insurance Company of America, 268 Minn. 36, 127 N.W. 2d 541 (1964). These guidelines were summarized in Lang. We restate the relevant ones here:

"`* * * As the language of an insurance policy is that of the insurer, any reasonable doubt as to its meaning must be resolved in favor of the insured, but the court has no right to read an ambiguity into plain language of an insurance policy in order to construe it against the one who prepared the contract.

* * * * * *

"`* * * Where there is no ambiguity there is no room for construction. In such cases, the parties being free to contract, the language used must be given its usual and accepted meaning.

"`* * * Contracts of insurance, like other contracts, must be construed according to the terms the parties have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary, and popular sense, so as to give effect to the intention of the parties as it appears from the entire contract.

* * * * * *

"`* * * A policy and endorsements should be construed, if possible, so as to give effect to all provisions, * * *.\'"

Id. at 544.

(a) The words in the phrase "ensuing fire" should be given their plain and ordinary meaning.

"Fire" is defined⁴ as a "phenomenon of combustion manifested in light, flame, and heat."⁵ Webster's Seventh New Collegiate Dictionary (1965). It has been defined by a number of courts, including this one, as combustion accompanied by heat and light. Western Woolen Mill Co. v. Northern Assur. Co., 139 F. 637 (8th Cir. 1905); Sun Insurance Office of London v. Western Woolen Mill Co., 72 Kan. 41, 82 P. 513 (1905); Security Ins. Co. of N. H., Conn. v. Choctaw Cotton Oil Co., 149 Okl. 140, 299 P. 882 (1931).

It is conceded by the parties that a "fire" existed within the first second after the electrical arcing began. The question thus becomes whether it was an "ensuing fire."

"Ensue" is defined:

"* * * 2. to follow as a consequence; result." The Random House Dictionary of the English Language, The Unabridged Edition (1966).

"To follow as a chance, likely or necessary consequence: to take place afterwards." Webster\'s Unabridged Dictionary (1961).

On the basis of these definitions, we view an ensuing fire as one which follows as a consequence of an electrical disturbance or injury caused by electrical current artificially generated. Whether an electrical current continues after a fire is ignited is, in our judgment, immaterial. The only question that can be reasonably asked is: At what point does electrical arcing cause a fire to come into being? This point is obviously the moment at which combustion accompanied by heat and light occurs. Here, that point was within the first second after the arcing occurred.

To the extent that the jury charge as quoted in South Carolina Electric & Gas Co. v. Aetna Ins. Co., 238 S.C. 248, 120 S.E.2d 111 (1961), might be read to contain any language to the contrary, we decline to engraft it on Minnesota law.

(b) The "surplus words rule" does not require that the phrase be construed as to bar recovery.

Electrical arcing is not fire. It is the movement of electrons from one point to another. Van Norstrand, International Dictionary of Physics and Electronics; Palmer, Craig and Easton, World Book Encyclopedia. It produces heat and light, but does not involve the combustion of matter. The insurers are thus correct in arguing that damage by arcing is not "loss or damage by fire" within the terms of the policies. We believe them to be wrong, however, in insisting that if arcing causes "fire," which in turn causes damage, including damage from secondary arcing, that the damage caused by the fire is not compensable. They urge that unless the policy is construed so as to reach that result, the electrical apparatus clause is pure surplusage, and that such a result is to be avoided.⁶

While we do not minimize the importance of the rule, we cannot apply it to the exclusion of other rules of construction, nor can we apply it to alter the plain meaning of the clause. To apply it here in the manner urged by the...