Cafritz Co. v. Employers Com'L. Un. Ins. Co. of America, 6598.

• Decision Date: 11 September 1973
• Docket Number: No. 6598.,6598.
• Citation: 309 A.2d 302
• Parties: The CAFRITZ COMPANY, Appellant, v. EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY OF AMERICA, Appellee.
• Court: D.C. Court of Appeals

Page 302

309 A.2d 302

The CAFRITZ COMPANY, Appellant, v. EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY OF AMERICA, Appellee.

No. 6598.

District of Columbia Court of Appeals.

Argued November 27, 1972.

Decided September 11, 1973.

James Edward Ablard, Washington, D. C., with whom John J. Wilson, Washington, D.C., was on the brief, for appellant.

Edward J. Gorman, Jr., Washington, D. C., with whom Kenneth B. Skelly, Washington, D.C., was on the brief, for appellee.

Before KELLY, FICKLING and GALLAGHER, Associate Judges.

KELLY, Associate Judge:

This appeal concerns the amount of recoverable damages under a boiler and machinery insurance policy issued by Employers Commercial Union Insurance Company of America (Employers) to The Cafritz Company (Cafritz) for accidental damage to the motor of an air conditioning unit. The trial court found for Cafritz on the issue of coverage,¹ allowing recovery of certain sums listed on an itemized repair bill but disallowing others. It is the disallowance of two items of damage that has been called into question on appeal.

Specifically, the court disallowed (1) the sum of $644 charged for a new terminal board and its installation,² and (2) the entire $1,650 labor charge of Boland Trane Service Agency, Inc. (Boland Trane), the company Cafritz hired to repair the unit. With respect to the first item the court found that no evidence had been adduced at trial to show that the terminal board had been directly damaged by the accident and thus there was nothing in the record to support the claim that its repair was necessitated by the accident.³ Appellant nevertheless urges that it should be permitted recovery for this expense since replacement of the terminal board was required to return the machine to working order and became part of the actual cost of repair. This argument overlooks the fact that coverage for a loss under the policy must be established before one can claim damages for the loss. The policy here in question covers only those losses directly caused by an accident and in the absence of evidence that the terminal board was so damaged, the trial court properly disallowed this item of damages.⁴

As to the Boland Trane labor charge, the facts are that in January of 1970, while performing regular winter maintenance, an employee of Barrington and Company, Inc. (Barrington), maintenance contractors for the Cafritz air conditioning equipment, found damage to a semi-hermatic motor within an air conditioning unit atop Cafritz' building at 1825 K Street, N. W. Cafritz was notified and contracted with Boland Trane, refrigeration engineers, to do the repair work.⁵ Boland Trane dismantled the unit and removed the damaged motor which was picked up by the Electric Apparatus and Repair Company of Philadelphia (Electric), a subcontractor, for overhaul and repair. Boland Trane reassembled the air conditioning unit when the motor was returned. It then submitted a bill to Cafritz which included Electric's charge for the motor overhaul, marked up 50%;⁶ the cost of a gasket kit, a terminal board and a terminal board gasket; its labor charge for disassembling and reassembling the unit, and a D.C. sales tax. The particular charge now in question reads:⁷

Refrigeration Engineer — pull 1650.00 motor, tightened and wound all motor windings, shortened series connections, renewed bearings, rings, and gaskets, balanced rotor processed to remove all carbon, varnished and baked, tested for runout and end play, reassembled unit, attempted to evacuate, found crack in terminal board, replaced terminal board.

Confusion over the bill arose because the above-quoted language describes together the work done on the unit by Boland Trane and by Electric. Nevertheless, the testimony of appellant's witnesses with respect to the bill is that the $1,650 charge is for labor in dismantling and reassembling the unit, including leak testing and evacuation (approximately 80 hours), and that the charge is a customary and reasonable one for the work done. All agreed that the other work described was either done or would have been done by Electric, for which there was a separate charge, with mark-up, on the bill. The language was Boland Trane's description for the customer's benefit of all work done on the unit; the dollar amount of $1,650 covered Boland Trane's labor cost alone. Even appellee's expert witness, who expressed his opinion on the basis of the testimony he heard in court, did not dispute the fact that some amount was due, saying only that: "I would think that half of this charge would have been plenty." [Tr. ar 163.]

Subsequent to trial the court made written findings of fact and conclusions of law in which it said:⁸

As to the item of $1,650, it is sheer duplication. The work was never performed, and there was no testimony which satisfied the court, by a fair preponderance of the evidence, that the work done by the local company was any more than it was obliged to do under a service and maintenance contract. They did no more than attach a megger and pull the motor and then replace the motor. They have so confused their bill, and their testimony, that the court cannot say that it is satisfied by a fair preponderance of the evidence as to the reasonableness of any portion of this item of $1,650.

Upon Cafritz' motion to...