Bulyga v. Underwriters at Lloyd's, London

• Decision Date: 19 June 1973
• Citation: 1 Mass.App.Ct. 359,297 N.E.2d 68
• Court: Appeals Court of Massachusetts
• Parties: Joseph BULYGA, Jr., & another v. UNDERWRITERS AT LLOYD'S, LONDON & another.

Page 68

297 N.E.2d 68

1 Mass.App.Ct. 359

Joseph BULYGA, Jr., & another v. UNDERWRITERS AT LLOYD'S, LONDON & another.

Appeals Court of Massachusetts, Essex.

Argued Feb. 21, 1973.

Decided June 19, 1973.

Salvatore J. Basile (Harry N. Steinberg, Lawrence, with him), for the defendant Underwriters at Lloyd's, London.

John A. McNiff, Peabody, for plaintiffs.

Before ROSE, KEVILLE, and ARMSTRONG, JJ.

ROSE, Justice.

This is a bill in equity brought under the provisions of G.L. c. 214, § 3(10), to reach and apply the rights of the defendant Interstate Fireworks Mfg. & Display Company, Inc. (Interstate), under a certificate of public liability insurance (supplemented by an excess of loss certificate) issued by the defendant Underwriters at Lloyd's, London (Lloyd's), in satisfaction of judgments recovered by the plaintiffs against Interstate. Lloyd's disclaims coverage of this accident, asserting that the provisions of an endorsement to the basic certificate excludes its liability thereunder. The court below found for the plaintiffs, made findings, rulings, and an order for decree, and adopted its findings as its report of material facts. Lloyd's appealed from the final decree. The evidence is reported.

On July 3, 1963, at 11 P.M., the minor plaintiff (plaintiff), then sixteen years old, was in Patton Park in the town of Hamilton, watching a display of fireworks being presented by Interstate, through its operator, Anthony Cannatelli. Approximately 15,000 spectators were present, all situated at least 300 feet from the site of the firing. The fireworks were fired from a metal tube referred to as a gun. The gun was made of one-quarter inch thick galvanized steel tubing and was thirty inches in length. The open mouth of the gun extended upward toward the sky. After it was placed in a trench, earth was compacted around the bottom three-fourths of the tube. Two railroad ties had been placed near the area where the fireworks were being fired. There was testimony to the effect that it was the standard and accepted practice to use such ties as barriers between the spectators and the one-fourth portion of the gun which extended above ground. This was usually done to deflect fragments of the metal gun, should a firework explode within the tube and shatter the exposed mouth of the gun.

That night no ties were used, nor were any other barriers placed between the gun and the spectators. The ground between the gun and the spectators was open and flat. During the display an aerial bomb twenty-two inches in length and four inches in circumference was placed in the gun. Cannatelli lit its fuse. Almost immediately the bomb exploded within the gun. The upper portion of the gun fragmented, hurling a piece of the tubing through the air so as to strike the plaintiff in the face as he sat on the grass some 360 feet away. He sustained severe and permanent injuries.

The relevant portion of the basic certificate issued by Lloyd's and in effect at the time of the accident provided:

1. 'Coverage A--Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages . . . because of bodily injury . . . sustained by any person or persons, caused by accident and arising out of the hazards hereinafter defined.'

The certificate bore an 'Endorsement No. 5' which read as follows:

'Notwithstanding anything contained herein to the contrary, this (p)olicy excludes liability arising from (f)ireworks which are intended to travel through the air or to move from the position in which they are fired.'

The sole question presented is whether the foregoing endorsement is effective to exclude liability for what occurred from the broad provisions of Coverage A. We are of...