Gorton v. Phoenix Insurance Company
| Decision Date | 23 February 1972 |
| Docket Number | Civ. A. No. 70-1288-W. |
| Citation | 339 F. Supp. 241 |
| Parties | Slade GORTON et al., Plaintiffs, v. The PHOENIX INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Nathaniel M. Gorton, Powers & Hall, Boston, Mass., for plaintiffs.
Brian J. Moran, Boston, Mass., for defendant.
MEMORANDUM OF FINDINGS AND RULINGS
The plaintiffs, Trustees of a Massachusetts Realty Trust, are suing the defendant insurance company upon a fire insurance policy relating to premises of the plaintiffs in South Boston (the "A" Street premises).
On December 13, 1968, a building on the "A" Street premises was severely damaged by a dynamite explosion. The blast was set off by a professional blaster hired by the plaintiffs to demolish a concrete block within the building. The plaintiffs claim that they are entitled under the policy to recover for so much of the loss to their building that exceeds the minor damage which was anticipated.
The terms of the policy are undisputed (Pl.'s Ex. 1). It is undisputed also that the policy was paid up, that it covered the building, and that proper notice and proof of loss were given.
It is agreed that if the defendant is liable, the plaintiffs are entitled to recover $12,000, that sum being the defendant's proportionate share of the loss (two other companies shared the risk with the defendant).
One of the plaintiff Trustees, Slade Gorton, is the principal officer of Slade Gorton, Inc., a firm in the wholesale fish distribution business, and of related firms. The Trust held the "A" Street premises for purposes of the Gorton fish business.
The "A" Street premises were acquired September 30, 1968, from Anderson Power Products Co. Consisting of 43,000 square feet, they contained a number of vacant industrial and commercial buildings, including the building which was the site of the explosion.
The Trustees planned to renovate the "A" Street premises to house the Gorton wholesale frozen fish business. One of the smaller buildings was torn down in the fall of 1968, but Slade Gorton and his fellow Trustees meant to retain the others.
The building where the loss occurred was to be remodelled to accommodate fish freezers. It was a 40' × 120' one story, industrial-type structure, built mainly of wood but with part of its walls of industrial tile. Its roof, of tar and gravel, was flat, with protruding sky-lights or "monitors". The floor was of cement.
Inside, some six feet from one of the 120 foot walls, was a massive concrete block which had been used as a hydraulic counterweight by the former owner. It was 9' × 9' square, and about 10' high. A 2' × 2' hollow core ran from top to bottom. The block is estimated to have weighed between 78 and 100 tons. It sat 3-4 feet off the cement floor on some kind of metal supports. The top of the block almost reached the ceiling, the distance from floor to ceiling being about 14' or 15'. Since the block had been designed to move up and down, there was a hole in the roof directly above it, and a framework above the roof, to accommodate the upward thrust of the block.
The plaintiffs wished to get rid of the block so that freezers could be installed in the building.
Rather than hiring an outside contractor, the plaintiffs had arranged to have all renovation work on the "A" Street premises done through a subsidiary of Slade Gorton, Inc., named Riverside, Inc. A Mr. Morrill, who had had experience in the building field, was hired by Riverside. Under his supervision, and the overall direction of Slade Gorton, carpenters and other workmen and sub-contractors were engaged as needed.
In October of 1968, an attempt was made to demolish the concrete block by use of jack hammers and air hammers. The drills broke off when they hit pieces of metal embedded in the concrete. Slade Gorton and Mr. Morrill concluded that while the block might eventually be broken up in this manner, the process was far too slow and expensive.
Their next thought was to blast the block out. Before engaging a blaster, Slade Gorton consulted with a Mr. Norwell, an insurance agent employed by Herbert Field & Co. The plaintiffs had just procured the fire insurance policy on the "A" Street premises (Pl.'s Ex. 1) through Field & Co., the latter acting as their (not the defendant's) agent.
Mr. Norwell expressed the view that Mr. Gorton could go ahead with the blasting if he hired a licensed blaster.
Thereafter Mr. Morrill got in touch with Barclay Explosives, Inc. of Avon, Massachusetts, a firm run by a Mr. Barclay, an experienced, licensed blaster. Barclay had done work for Morrill in the past.
Conversations took place in late October and in November between Mr. Barclay, Mr. Gorton and Mr. Morrill. It is undisputed that Barclay was hired by the latter at a price of $350 to demolish the block. However, it is disputed whether (as Gorton and Morrill testified) Barclay told them that only minor damage to the building would ensue, or whether (as Barclay testified) he said that one entire wall and part of the roof would be damaged. No letter or written agreement bearing on the matter was prepared other than a release (Pl.'s Ex. 2) prepared by Barclay and signed by one of the plaintiffs, as follows:
Upon contradictory testimony concerning the oral undertaking with Barclay, I find as follows:
Mr. Gorton and Mr. Morrill told Mr. Barclay of their previous futile efforts to destroy the concrete block; they asked if he could handle blowing the block to pieces by dynamite; Barclay told them that he could, although the blast would break glass in the skylights of the building and cause other minor damage. Gorton and Morrill were given the impression that Barclay could crack the block by dynamite with only minor damage resulting to the building — damage such as would cause "minor carpenter work".
Barclay instructed Morrill before the blast to remove some loose stock piled up in the building, so that it would not be covered by debris, and asked him to make sure that pipes and power lines were disconnected. Barclay agreed that for the total price of $350 he would also furnish a day's labor after the blast to help further break up the broken fragments of the block by air drill, and help Morrill's men remove them on a conveyor to be inserted through an opening to be cut in one side of the building.
The method for cracking the block adopted by Barclay, and described by him to Gorton and Morrill in November, 1968, was to be a single explosion. Barclay instructed Morrill to insert four pipes, one in each corner of the square, vertical hole in the block. Morrill was to fill the remainder of the core with cement. Sticks of dynamite were to be inserted by Barclay in the pipes on the day of the blast.
Morrill prepared the block as Barclay instructed.
There were pipes on the wall of the building within 5' or 6' of the block. I find that Morrill and Gorton did not discuss the future of these with Barclay.
I find that Morrill and Gorton did not discuss with Barclay specifically what would happen to the fragments of the massive block immediately after the explosion. Barclay was given to understand that the building was still to be used after the explosion. However, there was little specific discussion between Barclay and Gorton or Morrill on precisely what the consequences of the blast would be.
I find that Mr. Gorton was influenced to proceed with the dynamiting by the high cost of alternative methods, and that the was willing to adopt a method which would cause some minor damage as the cheapest way to accomplish what he wanted.
I find that a reasonable man, knowing that a block composed of metal fragments and concrete, and of this size, location and shape, was to be cracked by a single blast of dynamite within a frame building, would at least have wondered what the effect of the explosion in the confined space would have on the roof (which the block nearly touched) and the wall (six feet away from the block).
While I accept Mr. Gorton's and Mr. Morrill's testimony that they relied on Mr. Barclay's skill and advice as a blaster, I find that Mr. Gorton was sufficiently conscious of the element of risk to call his insurance agent twice. The first conversation has already been described. The second call was occasioned by Mr. Barclay's request that the plaintiffs sign releases absolving him from liability for damage to the plaintiffs' property and from liability for personal injuries caused by the blast. The agent advised against execution of the latter-type release. The former release was signed.
I find that Mr. Gorton had no intention of "blowing up his own building". I...
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