H. R. Weissberg Corp. v. New York Underwriters Ins. Co.

• Decision Date: 13 January 1971
• Docket Number: No. 223,223
• Citation: 260 Md. 417,272 A.2d 366
• Parties: H. R. WEISSBERG CORPORATION et al. v. NEW YORK UNDERWRITERS INSURANCE COMPANY et al.
• Court: Maryland Court of Appeals

Page 417

260 Md. 417

272 A.2d 366

H. R. WEISSBERG CORPORATION et al. v. NEW YORK UNDERWRITERS INSURANCE COMPANY et al.

No. 223.

Court of Appeals of Maryland.

Jan. 13, 1971.

William L. Clark, Bltimore (Walter R. Tabler, F. Duncan Cornell and Hooper, Kiefer, Sachs, Tabler & Cornell, Baltimore, on the brief), for appellants.

George M. Radcliffe, Baltimore (Edgar H. Gans, Baltimore, on the brief), for appellees.

Argued before HAMMOND, C. J., and McWILLIAMS, FINAN, SMITH and DIGGES, JJ.

SMITH, Judge.

We are here obliged to decide whether damage which arose when the boom of a mobile crane struck the Lord Baltimore Hotel in Baltimore came within the purview of an extended coverage endorsement to fire insurance policies which provided indemnity for 'direct loss by * * * Vehicles * * *'. The crane was engaged in demolition work when its boom twisted, buckled, and fell. We conclude that the damage did come within the policy provisions. therefore, we shall be obliged to reverse the judgment entered by a trial judge who arrived at a contrary conclusion.

This litigation could be called a by-product of the extensive rebuilding in recent years of the downtown Baltimore area. The facts are not in dispute. In fact, the matter was decided in the trial court on a motion for summary judgment. The parties made commendable use of Maryland Rule 421 concerning admission of relevant facts, a tool many attorneys seem to overlook.

The crane in question was engaged on the morning of January 7, 1964, in the demolition of the Hamburger building on Hanover Street, directly across from the Lord Baltimore Hotel (the Hotel). The Hamburger building was eight floors high. This work had brought the building down to the fourth floor. As the crane operator put it:

'I was claming debris off the fourth floor level of the building, the boom angle was approximately 70 degrees to 80 degrees. The clam of the crane was resting on the fourth floor and full of debris, it was not hooked to anything which was still attached to the building. As I started to lift the bucket clam, I heard a noise like a sharp crack or snap. I looked up at the boom and saw that the third section of boom about 55 ft. up was buckled and the boom had started to come back over towards the cab. I licked the swing lock on the crane to keep the crane from swinging around and jumped out of the crane. The boom twisted and slewed around.'

No portion of the crane other than the boom came into contact with the Hotel.

The crane contained two engines. One engine could be used for the purpose of driving the entire unit laterally along the ground in the same fashion that a truck is driven along the ground; this engine could not operate the boom. The other engine was used for the purpose of operating the boom of the crane; it could not be used to propel the crane along the ground. This latter engine or 'boom engine' was the one in operation at the time of the accident. The engine which would have moved the crane laterally was not in operation.

Outriggers attached to the crane supported or stabilized it while the boom assembly was being operated in the demolition of buildings. At the time of this incident the crane was stabilized by these outriggers which were in contact with the ground. When the outriggers are so placed, it is not possible to move the crane along the ground. The boom assembly could be disconnected from the truck-crane unit. The crane was capable of utilizing booms of varying sizes and lengths.

Various insurance companies had issued policies on the 1943 Standard Fire Insurance form to Lord Baltimore Hotel, Inc., the operator of the Hotel, and its parent company, H. R. Weissberg Corporation. Attached to these policies were endorsements containing the following pertinent language:

'Subject to provisions and stipulations (hereinafter referred to as 'provisions') herein and in the policy to which this Endorsement is attached, including endorsements thereon, the coverage of this policy is extended to include direct loss by * * * Vehicles * * *.

'Provisions Applicable Only to Loss by Aircraft and Vehicles: The term 'vehicles', as used in this Endorsement, means vehicles running on land or tracks but not aircraft. Loss * * * by vehicles shall include only direct loss resulting from actual physical contact of * * * a vehicle with the property covered hereunder or with the building containing the property covered hereunder * * *.'

There is no shortage of cases defining the word 'vehicle'. See, for instance, 91 C.J.S. Vehicle at 805-807 (1955), and 44 Words and Phrases 'Vehicle' at 145-159 (1962). The cases include our own Baltimore Transit Co. v. Metropolitan Transit Authority, 232 Md. 509, 517, 194 A.2d 643, 647 (1963). The Court was there called upon to determine with reference to a seat tax the meaning of the phrase 'per vehicle used by mass transit or transportation company'. In an opinion by Judge (later Chief Judge) Prescott the meaning of the phrase was held not ambighous and it was determined, '(T)he word 'vehicle' therein must be construed as having been used in its general sense so as to include streetcars.'

Definitions include the interesting comment of Mr. Justice McReynolds in United States v. One 1936 Model Ford V-8 Deluxe Coach, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249 (1939), relative to forfeiture of a vehicle under the revenue laws because of unlawful transportation of distilled spirits upon which the federal tax had not been paid. He there said by way of dicta:

'It should be observed that the following things are possible subjects of seizure and forfeiture because of liquor law violations: 'Every vessel, boat, cart, carriage, or other conveyance whatsoever, and all horses or other animals, and all things used in the removal or for the deposit or concealment, etc.' 'Vehicle' is thus defined-'That in or on which a person or thing is or may be carried from one place to another.' A wheelbarrow, a covered wagon, a 'Rolls-Royce', the patient mule, a 'Man of War', and possibly a Pullman car or Ocean Liner is a vehicle. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376; United States v. Two Bay Mules, 36 F. 84 (W.D.N.C.1888); United States v. One Bay Horse, 270 F. 590 (N.D.Ga.1921).' Id. at 237 of 307 U.S., at 870 of 59 S.Ct.

Interestingly enough, Mr. Justice McReynolds dissented (without opinion) in Goldsmith-Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376 (1921), to which he made reference. In that case as to a contention that under the statute there involved:

'(A) Pullman sleeper can be forfeited if a bottle of illicit liquor be taken upon it by a passenger, and * * * an ocean steamer can be condemned to confiscation if a package of like liquor be innocently received and transported by it.' Id. at 512, 41 S.Ct. at 191.

The Court said, 'When such application shall be made it will be time enough to pronounce upon it.'

The insurance companies and the trial judge found persuasive Smedley v. Milwaukee Automobile Insurance Co., 12 Wis.2d 460, 107 N.W.2d 625 (1961). In that case the court was called upon to interpret a Wisconsin direct action statute under which an insurance company might be 'made a proper party defendant' in any action caused by 'the negligent operation, management or control of a motor vehicle'. It was claimed that the defendant was negligent 'in failing to properly manage and control the crane he was operating in respect to swinging the girder up unexpectedly, in swinging the girder too close to the plaintiff, in slackening the boom line, in allowing the girder to crash on the wall, and in failing to obey signals directing the movement of the crane'. The court said:

'These are not the usual allegations for the operation, management or control of a motor vehicle but would be sufficient if in fact the crane was a motor vehicle.' Id. at 466, 107 N.W.2d at 627.

In holding that the crane was not a motor vehicle under that statute, the court said:

'It is undoubtedly true if the unit were being driven on a public street for the purposes of locomotion, it would be considered a motor vehicle. In the record there are several photographs and a lithograph of this unit. Arbitrarily classifying it either as a truck or a hydrocrane without reference to a particular use does not solve the problem. When the unit is in locomotion for the purpose of transporting the crane, it takes on the essential aspects of a motor vehicle for some purposes. However, after the unit arrives at its destination, the mobile aspect ceases and the crane is operated as an independent immobile unit. The test under the statutes is whether at the time of the accident the unit is being used, managed, controlled or operated as a motor vehicle in the ordinary meaning of those words. At the time of the accident the unit was stationary, the crane was stabilized, supported and rendered immobile by outriggers. The unit was not then used as a motor vehicle. Plaintiff was injured by the operation of the crane, not the operation of the truck. We do not believe such use of the unit is within the meaning of the negligent operation, management or control of a motor vehicle as used in sec. 260.11, Stats.' Id. at 466-467, 107 N.W.2d at 628. (Emphasis added.)

We regard the emphasized words as the critical difference between Smedley and this case.

The numerous other cases which have construed the term 'vehicle' have involved workmen's compensation statutes, motor vehicle fuel taxes, automobile liability policies and zoning ordinances, to mention but a few. All are distinguishable from this case. In the light of the number of those cases and the undoubtedly vast numbers of insurance policies issued with language similar to that here involved, it is remarkable that there are but a handful of cases construing policy provisions similar to these. No case has been cited to us nor have we been able to locate a case involving similar facts....