Grossman Iron & Steel Co. v. Bituminous Cas. Corp.

• Decision Date: 30 August 1977
• Docket Number: No. 37794,37794
• Parties: GROSSMAN IRON & STEEL CO., etc., Plaintiff-Appellant, v. BITUMINOUS CASUALTY CORP., Defendant-Respondent. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 255

558 S.W.2d 255

GROSSMAN IRON & STEEL CO., etc., Plaintiff-Appellant, v. BITUMINOUS CASUALTY CORP., Defendant-Respondent.

No. 37794.

Missouri Court of Appeals, St. Louis District, Division Three.

Aug. 30, 1977 As Modified on Court's Own Motion Sept. 13, 1977 Appellant's Motion to Modify and to Correct Opinion and Judgment Denied Nov 14, 1977.

Alvin A. Wolff, St. Louis, for plaintiff-appellant.

Robertson, Ely & Weiland, Louis A. Robertson, St. Louis, for defendant-respondent.

KELLY, Presiding Judge.

In this appeal from a judgment of the Circuit Court of the City of St. Louis entered in favor of the respondent Bituminous Casualty Corporation two questions are presented for decision: whether the trial court erred in sustaining respondent's motion for directed verdict at the close of the case and in denying appellant Grossman Iron & Steel Company's motion for directed verdict at the close of the case.

This case had its origin in a policy of insurance issued by the respondent to the Grossman Wrecking Company ¹ for one year commencing April 1, 1961, wherein the respondent agreed to pay on behalf of the appellant all sums, not to exceed $25,000, which appellant became legally obligated to pay as damages because of injury or destruction of property during the policy period. The accident out of which appellant's claim arose occurred on August 4, 1961, when a crane and boom operated by one of appellant's crane operators tipped over, fell on and damaged a pipe line belonging to the Laclede Gas Company. Laclede Gas Company made a claim for damage to these pipes for $5,018.65. Appellant notified respondent thereof but respondent denied liability for payment of the claim on the sole ground that the casualty was excluded from coverage by Exclusion (1) of the policy. On advice of counsel, appellant paid Laclede Gas Company's claim on July 30, 1962, and when the respondent refused to pay the amount of the claim to appellant a two-count petition was filed in the Circuit Court of the City of St. Louis.

Count I of appellant's petition sought damages for breach of contract, vexatious delay and attorney's fees; Count II sought reformation of the contract by eliminating Exclusion (1) from the policy of insurance by Endorsement 13 in accordance with an alleged prior agreement between respondent's agent and appellant. ² Respondent's motion to transfer the cause to the equity division of the court for trial was granted and Count II was tried and decided adversely to appellant. On appeal that judgment was affirmed. Grossman Wrecking Company v. Bituminous Casualty Corporation, 518 S.W.2d 719 (Mo.App.1975).

The case then came on for trial on Count I of appellant's First Amended Petition. At the close of the case respondent's motion for directed verdict was sustained and appellant's motion for directed verdict was denied.

In deciding whether the trial court erred in sustaining the respondent's motion for directed verdict at the close of the case we look to the pleadings to ascertain what facts were at issue and then view all of the evidence in a light most favorable to the appellant, giving it the benefit of any and all reasonable inferences to be drawn from the evidence not in conflict with its theory of the case, and we disregard respondent's evidence except insofar as it might aid appellant's case. Kaelin v. Nuelle, 537 S.W.2d 226, 232(6) (Mo.App.1976).

It was conceded by the respondent that the appellant purchased from it through its "authorized agent" a Comprehensive Liability Policy, No. CL 852975 with a policy period from April 1, 1961, to April 1, 1962. According to this policy Declarations the named insured was Grossman Wrecking Company, # 5 North Market Street, St. Louis, 6, Missouri, and the insured, a corporation was the tenant of a portion of the described premises. Although there was a provision in the policy for entry of the "Business of the named insured," no entry was made indicating insured's business. Schedule No. 1 of the Declarations in describing the hazards covered on the appellant's premises and operations identified it as the wrecking of buildings or structures which were "Not Marine." The Advance Premium for coverage under the policy was $748.90 for "Property Damage Liability Except Automobile." A total of 13 Endorsements were enumerated on the face of the policy in typewritten entries under "Endorsements forming part of this policy at issuance."

Under "Insuring Agreements" the respondent undertook, by affording appellant "Coverage C Property Damage Liability Except Automobile," to "pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident."

Among these Endorsements was Endorsement # 6 which reads:

"ENDORSEMENT

RESTRICTION ENDORSEMENT LIMITING LOCATIONS

It is agreed that such insurance as is afforded by this Policy shall not apply as respects the insured's WRECKING, DISMANTLING AND SALVAGE operations performed at any location other than as stated in Item 1. (sic) 'Location of Premises,' of the Declarations, forming a part of this Policy, unless the Insured notifies the Company prior to the undertaking of such aforementioned operations and the Company accepts coverage for each specific project or job, by means of a written endorsement to this Policy."

There were also a number of Exclusions contained in the policy, but the only one germane to the issues here was (1):

"(1) under coverage C, to injury or destruction of any property arising out of (1) blasting or explosion, other than the explosion of air or steam vessels, piping under pressure, prime movers, machinery or power transmitting equipment, or (2) the collapse of or structural injury to any building or structure due (a) to grading of land, excavation, borrowing, filling, back-filling, tunneling, pile driving, coffer-dam work or caisson work, or (b) to moving, shoring, underpinning, raising or demolition of any building or structure or removal or rebuilding of any structural support thereof; . . ." (Emphasis supplied).

While this policy was in effect the appellant entered into a contract with the Laclede Gas Company to dismantle a large gas holder on its premises at 322 East Catalan Street in St. Louis. Prior to commencing performance of the contract, and in compliance with Endorsement # 6 to the policy, appellant notified the respondent of the contract for the dismantling of the gas holder and requested coverage for this job. Upon receipt of the notice the respondent dispatched Mr. Charles L. Blaylock, one of its safety engineers, to the premises on Catalan Street for the purpose of conducting an inspection to ascertain the hazards to which the respondent would be subject if coverage was extended as requested. Thereafter, effective July 3, 1961, by Endorsement # 17 to the policy, coverage was extended to "the insured's operation of dismantling steel gas holder," subject to "all exclusions, conditions and other terms of the policy except as specifically amended herein, . . ." A certificate of insurance was issued by the respondent to Laclede Gas Company certifying that this policy was in effect and covered the contract with the appellant for the dismantling of the gas holder located on the premises on Catalan Street.

Appellant commenced performance of the contract, and while a crane operator it had hired from the Union Hall and put on its pay-roll, was moving a crane and boom from one place to another on the premises, the crane and boom toppled over and fell on a pipe-line six to eight inches in diameter which led from a battery of butane or propane tanks and was not connected to the gas holder. This pipe-line was elevated and supported by steel supports; it was not to be dismantled or wrecked in performance of the contract with Laclede Gas Company. The Gas Company claimed that the damage to this pipe-line amounted to $5,018.65 and made demand upon the appellant for this amount. As stated previously, appellant notified the respondent but it denied any liability under the terms of the policy on the sole ground that the casualty was excluded from coverage under Exclusion (1) of the policy. Appellant paid Laclede Gas Company its claim for damages to the pipes on July 30, 1962, but the respondent refused to pay this amount to it. This suit followed.

At the close of the evidence respondent filed its motion for directed verdict on the following grounds.

"1. That under the law, the pleadings and the evidence plaintiff is not entitled to recover against the defendant.

2. That plaintiff has not made a submissible case against the defendant upon which relief can be granted.

3. That plaintiff has not proved any violation of the terms and conditions of the policy of insurance by this defendant.

4. That the evidence does not support any pleaded assignment for any action against defendant for its failure or refusal to extend coverage to plaintiff under the policy."

In sustaining this motion the trial court did not specify on which one or more grounds its action was based.

In considering whether a plaintiff in a suit to recover on a policy of insurance has made a submissible case, the principles generally applicable to civil jury trials determine whether the evidence has been sufficient to establish a prima facie case. 11 Couch on Insurance 2d, § 44:258, p. 685. In an action of this kind, the plaintiff makes a prima facie case by establishing issuance of the policy of insurance, delivery, payment of the premium, the loss through or on account of the cause insured against, and the furnishing of notice and proofs to the insurer as required by the policy. 44 Am.Jur.2d Insurance, § 2059, p. 1002. The insured must, of course, bring himself within the terms of the policy and prove by substantial evidence that the claim sued on is within the coverage provided by the terms of the insurance...