Fidelity & Cas. Co. of N. Y. v. Fratarcangelo
| Decision Date | 07 March 1960 |
| Docket Number | No. 5038,5038 |
| Citation | 201 Va. 672,112 S.E.2d 892 |
| Court | Virginia Supreme Court |
| Parties | FIDELITY AND CASUALTY COMPANY OF NEW YORK v. DANTE FRATARCANGELO, ET AL., ETC. Record |
Alexander H. Sands, Jr. (Sands, Marks & Sands, on brief), for the plaintiff in error.
James G. Harrison (Harrison & Harrison, on brief), for the defendants in error.
WHITTLE, J., delivered the opinion of the court. This is a declaratory judgment proceeding brought for the purpose of construing a policy of liability insurance issued by the Fidelity and Casualty Company of New York, hereinafter called Fidelity, to Dante Fratarcangelo, and Harry Fratarcangelo, T/A Hopewell Iron and Steel Company, hereinafter called the insured.
The petition for declaratory judgment filed by the insured against Fidelity alleged that for a number of years the insured had been engaged in the business of handling and selling used iron and steel products, and in connection with insured's operation of such business Fidelity issued to them a certain policy of insurance; that during the course of business the Fratarcangelos sold to one Willie Edward King a laundry stove; that at the time of the sale and upon insured's premises, insured's servants or employees plugged certain outlets in the stove, which act of so plugging said outlets is alleged by King to have been negligence on the part of the insured; that King, after the purchase, removed the stove from insured's premises, took it to his home, and upon the first occasion of use the stove exploded, injuring two of King's minor children. These infants, in asserting their claim for damages against the Fratarcangelos, charge that the act of plugging the outlets was negligence on the part of the insured which proximately caused the explosion and resultant injuries.
It is this claim which the insured, while denying liability, has called upon Fidelity to defend, and which Fidelity denies was covered under its policy, a copy of which was filed with the pleadings.
To the petition Fidelity filed a demurrer saying:
'* * * The petition herein fails to state a cause of action against this defendant for the following reasons: '(1) The policy here involved insures the named assured for his loss under Division 1 only of coverage A and B and not under Division 2, 3 or 4.
'(2) Under the allegations of the petition herein the accident resulting in the injuries in question occurred (a) after the insured's operation as to the stove were completed and (b) away from the premises of the insured and would, therefore, constitute a 'completed operation' as defined under I Definition of Hazards -- Division 4 Subsection (2) of the policy in question.
'(3) Under the heading 'Exclusions,' Par. (2) 'Completed Operations' as defined under I, Division 4(2) are expressly excluded from coverage under Division 1.
'(4) As the petitioner did not have, or pay premium for coverage under Coverage A, Division 4, and since this accident falls only under Coverage A, Division 4, there is no coverage for this accident under the policy in question.'
The demurrer was overruled by the trial court, and Fidelity filed its answer; whereupon the insured filed a motion for summary judgment.
In answering the motion Fidelity stated
Whereupon the trial court entered its final order in which it adjudged that the policy of insurance mentioned in the petition did cover, apply to and protect the petitioners as alleged. Rule 3:20.
From this order we granted Fidelity an appeal.
The sole issue in the case is whether, under the facts alleged, the policy issued to the Fratarcangelos covers their liability, if any, to the King children; it being Fidelity's contention that the coverage was expressly excluded under the terms of the policy.
Under the policy Fidelity agrees with the insured:
'* * * Subject to the limits of liability, exclusions, conditions and other terms of this policy:
'I Coverage A -- Bodily Injury Liability,
'to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, * * * sustained by any person, caused by accident.'
On the face of the policy there are listed the various hazards which might be covered by the policy if the insured desires such coverage and pays the premium therefor. These hazards are listed thus:
'(1) Premises -- Operations
'(2) Elevators
'(3) Independent Contractors
'(4) Products -- Completed Operations.'
Opposite the hazards for which insured purchased coverage there was typed in the amount of advance premium which insured paid for such coverage. The entry of this premium figure controlled what coverage the insured sought and paid for. In the policy, above this section, it is provided:
'The insurance afforded is only with respect to such and so many of the following coverages and divisions thereunder as are indicated by specific premium charge or charges.'
Opposite the hazard (number 1) 'Premises -- Operations', there has been typed the advance premium of $119.68.
We are not here concerned with Item No. 2 'Elevators', nor Item No. 3 'Independent Contractors.'
Opposite the hazard (number 4) 'Products -- Completed Operations' there is no premium typed. Therefore this hazard was not covered.
The problem before the court therefore is whether the act of plugging the outlets (assuming this was negligence) falls under No. 1 -- 'Premises -- Operations', as contended by the insured, or No. 4 -- 'Products -- Completed Operations', as contended by Fidelity.
Fidelity contends that their position is correct, for they say if we look under the heading 'Exclusions', we find 'This Policy does not apply:
'(c) Under Division 1, of the definition of hazards, to * * * the...
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