Bolduc v. New York Fire Ins. Co.

• Decision Date: 25 March 1955
• Docket Number: No. 36264,36264
• Citation: 69 N.W.2d 660,244 Minn. 192
• Parties: L. F. BOLDUC, Paul A. Prendergast and Arthur A. Sehlin, partners, d/b/a L. H. Bolduc & Company, Respondents, v. NEW YORK FIRE INSURANCE COMPANY, Appellant.
• Court: Minnesota Supreme Court

Page 660

69 N.W.2d 660

244 Minn. 192

L. F. BOLDUC, Paul A. Prendergast and Arthur A. Sehlin partners, d/b/a L. H. Bolduc & Company, Respondents, v. NEW YORK FIRE INSURANCE COMPANY, Appellant.

No. 36264.

Supreme Court of Minnesota.

March 25, 1955.

Syllabus by the Court

1. In the construction of insurance policies this court has followed the rule that, although the language of the parties to an insurance policy must be given its natural and ordinary meaning and the words used are to be taken in their popular sense, such language and words as expressive of intent cannot be wholly disassociated from the purpose for and the subject to which they are applied.

2. The language of the policy being that selected by the insurer and for its benefit must be clear and unambiguous, and any reasonable doubt as to its meaning must be resolved in favor of the insured.

3. When reasonably possible, words in an insurance policy must be so construed as to make effective the general insurance purpose under the terms and provisions of the policy.

4. We here apply the well-established, familiar rule that, if a policy of insurance be susceptible of two meanings, that construction is to be adopted which is most favorable to the insured, and that conditions and stipulations in such a policy are to be construed most strongly against the insurer.

5. Plaintiffs' pile driver, which was an item of contractor's equipment and used in connection with their general business of contracting, came within the provisions of defendant's insurance policy. The evidence sustains the findings and the award of damages made by the court below.

Thomas, Bradford, King & Collatz, St. Paul, for appellant.

Harry G. Costello, Jr., B. Warren Hart, St. Paul, Faricy, Moore & Costello, St. Paul, of counsel, for respondents.

NELSON, Justice.

This action was instituted by the plaintiffs to collect insurance alleged to be due under a contract with the defendant company. The trial court found that there was at the time of the collision involved an existing contract of insurance; that a pile driver oriented and operated by the plaintiffs was clearly subject matter within the terms of the insurance contract; that the pile driver which was damaged was damaged within the terms of the insurance contract, while in force; and that the accident came within the provisions of the insurance contract, subject to the deduction of $150 thereunder provided by its terms depending upon the conditions under which the accident occurred and the type of injury sustained. Judgment was ordered in favor of plaintiffs in the amount of $3,571.52. Defendant moved the court to amend and supplement its findings of fact so as to read that the damage to the pile driver did not come within the terms of the contract of insurance and likewise its conclusions of law so that it would read that the plaintiffs were not entitled to recover, and in the alternative for a new trial upon two grounds; namely, errors of law occurring at the trial and excepted to at the time, and that the findings of fact were not justified by the evidence. The court entered its order denying the motions, and defendant appeals therefrom.

Most if not all of the essential facts have been stipulated, and it appears to be admitted both on the part of plaintiffs and the defendant company that the material facts are not in dispute. The portion of the insurance contract in dispute here is entitled 'Contractors' Equipment' and reads as follows:

'1. On the following scheduled property, which the Assured warrants to be in sound condition at the time of attachment of this insurance:

'Contractor's Equipment of every description including timbers, holds, and forms incidental and necessary to the assured's contracting business, the property of the assured, including such equipment that may be leased, loaned, or rented to the assured, and covering the same during transportation or otherwise anywhere within the continental limits of the United States and Canada against the risks and perils hereinafter specified and not otherwise, all of which property the assured warrants to be in sound condition upon the attachment of this insurance ... $15,000.00

'2. This Policy Insures Against Loss of or Damage to the Insured Property Caused Directly By:

'(d) Collision of any conveyance on which the insured property is being transported, with any other object, excepting that the coming together of cars, trucks, trailers, etc., during coupling, uncoupling or shifting or the striking of curbing or any portion of the roadbed or the ties of steam or electric railways shall not be deemed a collision;

'(e) Derailment or overturn of the transporting conveyance, (the mere tilting or leaning of the conveyance not to be deemed an overturn);

'(f) Collapse of Bridges.

'3. This Policy Does Not Insure Against:

'(a) Loss or damage caused by the weight of a load exceeding the registered lifting capacity of any machine;

'(b) Loss or damage caused by rough handling, improper stowage or insufficient packing;'

An endorsement of this policy, effective at the time of the damage to the plaintiffs' pile driver, added to the list of perils insured against as follows:

'(j) Landslide, Collision, Upset or Overturning of equipment moving under its own power. It is agreed that each loss by landslide, collision, upset or overturn of equipment moving under its own power shall be adjusted separately and from the amount of each loss when determined the sum of $150.00. shall be deducted.'

A property exclusion clause follows. Among the items of property now specifically excluded are 'automobiles, trucks, and automobile truck trailers, materials and supplies, excepting materials and supplies necessary or incidental to the operation of property insured hereunder.'

A letter from the defendant company to the plaintiffs dated before the time of the damage to the pile driver was received in evidence. It stated:

'We have your letter of April 12th and are agreeable to covering the pile driving machine and do not believe that it is necessary to endorse the contract or to charge an additional premium.'

The loss involved under the policy grew out of an accident which occurred November 29, 1949, at which time plaintiff's pile driver was damaged. The pile driver consisted of a platform resting on movable skids, a tower boom, several winches and cables, an engine, boiler, hammer, a steam hose, and such other equipment as was necessary to drive pilings into submerged surfaces. It was fitted with cables running to its own winches. These were connected with stationary objects so that when in operation if the cables were slacked off or pulled in by the winches the pile driver would move itself from place to place by being pulled along on its own skids.

Just before the accident occurred there was a change of crews. The pile driver was resting on its skids over the water. These skids were supported by pilings which had been previously placed. The skids supporting the pile-driving rig were stationary at the time of the accident. The crew consisted of a foreman, an operator of the machinery, a loftsman stationed on the tower boom to guide the pilings into the jetted slot for hammering, and a fireman. These were all stationed on or about the equipment. The crew that was relieved had left one line lading from one of the winches over the tower boom and attached to a piling in the group of pilings on the shore. The new crew became engaged in jetting a hole in the bottom of the lake for the placing of a new piling. This jetting operation consists in the driving of a long pipe into the lake bed and directing, through the pipe, a jet of water which displaces the lake bed at that spot and thereby makes room for the insertion of a piling. While this operation was being carried on, the machinery operator took up the slack on the line connected with the piling on the shore. This had the effect of disengaging the pile on the shore from the group of pilings in which it was located. Had the operation continued as intended, it would have brought the attached piling to the rig. In this instance the attached piling did not come free. The result was that the pile-driving rig overturned; while overturning, the right-hand skid broke and the pile driver as a result sustained additional damage upon impact with pilings previously placed, the stationary objects, and the water or lake surface.

The question involved here turns upon the effect of the words under (j) in the endorsement of the insurance policy where the perils insured against are stated to be 'Landslide, Collision, Upset or Overturning of equipment moving under its own power.' In the listing of perils, 'landslide' and 'collision' are set apart by commas, and paragraph (j) is explicit in saying that Each loss by landslide, collision, upset or overturning of equipment moving under its own power shall be Adjusted separately and from the amount of Each loss when determined the sum of $150 shall be deducted. The words 'moving under its own power' following the words 'upset' and 'overturning,' without separation by comma at any point in this phraseology, present an ambiguity which can only be resolved by reading into its context other words of expression. The phraseology is that of the insurer.

1. In the construction of insurance policies this court has followed the rule that, although the language of the parties to an insurance policy must be given its natural and ordinary meaning and the words used are to be taken in their popular sense, such language and words as expressive of intent cannot be wholly disassociated from the purpose for and the subject to which they...