Boston Insurance Company v. Gable
| Decision Date | 01 November 1965 |
| Docket Number | No. 22260.,22260. |
| Citation | 352 F.2d 368 |
| Parties | BOSTON INSURANCE COMPANY, Appellant, v. Herman L. GABLE, d/b/a Gable Floor Covering Company, et al., Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Edward E. Dorsey, John T. Marshall, Atlanta, Ga., for appellant.
James H. Archer, Jr., East Point, Ga., A. Ed Lane, Atlanta, Ga., for appellees.
Before TUTTLE, Chief Judge, and BELL and COLEMAN, Circuit Judges.
This is an appeal from a summary judgment entered against the appellant on a Manufacturers' and Contractors' Liability Policy, which was issued to Appellee Gable. The policy provided in part that the insurance company would pay, in accordance with the policy terms and limits, sums for property damage for each accident for which the insured became liable.
At issue before this court is the correctness of the trial court's determination that the loss here complained of was not excluded from the policy by reason of an exclusion clause which eliminated coverage as to "property in the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control."
The facts are not in dispute. In September, 1962, Vincent C. Lagemann owned his home and resided therein. On September 15, 1962, Lagemann left town on vacation. Prior to leaving, he told the general contractor who built the house that the floors of the newly built house would have to be refinished prior to his return. Lagemann left the house locked, but did not leave his keys with the general contractor since the general contractor also had a set of keys to the house. The general contractor told the defendant Gable that the floors would have to be refinished prior to Lagemann's return from his vacation. On September 24, 1962, two of Gable's employees went to the Lagemann house at Gable's direction to refinish the floors. Gable instructed his employees to lock the house when they had completed work. Gable's employees obtained the keys to the house from the general contractor and unlocked the house. Gable's employees worked in the house for a period of approximately two and one-half to three hours and then a fire started in the house. During this period, no one else was physically present in the house. The house was damaged by the fire, and the plaintiff contends that this loss is excluded from coverage under the policy issued by the plaintiff to the defendant Gable.
The appellant insurance company contends that at the time of the fire Gable, the insured by its presence and conduct on the property was exercising "care, custody and control" and/or "physical control" of the house and its contents that were damaged by the fire. The insured, to the contrary, contends that, within the meaning of this paragraph, the property was not within the care, custody or...
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