Harper v. Pelican Trucking Co.

Decision Date16 June 1965
Docket NumberNo. 10394,10394
PartiesJ. A. HARPER, Plaintiff-Appellee, v. PELICAN TRUCKING COMPANY, Inc., Defendant-Appellee.
CourtCourt of Appeal of Louisiana — District of US

Hendrick & Fant, Shreveport, or Pelican Trucking Co., defendant-appellant and third-party plaintiff-appellee.

Mayer & Smith, Shreveport, for third-party defendant-appellant, Aetna Ins. Co.

James D. Sparks, Monroe, for J. A. Harper.

Thomas & Lordians, Bossier City, for J. B. Fletcher Drilling Co., third-party defendants-appellees.

Simon, Carroll, Fitzgerald & Fraser, Shreveport, for Argonaut Ins. Co. and Argonaut Southwest Ins. Co.

Bodenheimer, Looney & Jones, Shreveport, for Insurance Co. of America, third-party defendant-appellee.

Before HARDY, AYRES and BOLIN, JJ.

HARDY, Judge.

This is an action on account for labor, services and material furnished by plaintiff in connection with a salvage operation performed at the request and for the benefit of defendant, Pelican Trucking Company, Inc. In answer to plaintiff's petition the defendant, Pelican, after denying liability for the account, assumed the position of third party plaintiff and impleaded as third party defendants J. B. Fletcher and his insurer, Argonaut Insurance Company, and Aetna Insurance Company and the Insurance Company of North America, both of whom were insurance carriers for Pelican.

In response to a peremptory exception Argonaut Insurance Company was dismissed as a third party defendant to this action. By judgment after trial on the merits Pelican's third party demands against Fletcher were dismissed. From these judgments eliminating Fletcher and his insurer Argonaut as parties there has been no appeal, and the claims asserted against them are no longer at issue.

The district judge also rendered judgment in favor of plaintiff and against Pelican as prayed for and there has been no appeal from this action.

Judgment was awarded in favor of Pelican as third party plaintiff against Aetna as third party defendant in the identical sum awarded the original plaintiff Harper, and Pelican's rights to claim attorney's fees from Aetna were specifically reserved. From this portion of the judgment Aetna, as third party defendant, has appealed.

Finally, the judgment rejected Pelican's demands against the Insurance Company of North America and from this portion of the judgment both Pelican and Aetna have appealed.

There appears to be no substantial dispute as to the facts. Pelican contracted for the hauling of a drilling rig owned by Fletcher, and in the course of this operation a truck owned by Pelican, towing a trailer owned by Fletcher loaded with the drilling rig drawworks and derrick, was involved in an accident when the truck and trailer fell through the deck of a bridge across Bayou Macon in Madison Parish. The truck, the trailer and the load, having a gross weight of some 80,000 pounds, were left in a precarious position, suspended over the Bayou and apparently supported only by the sub-flooring of the bridge. An authorized representative of Pelican employed the plaintiff, Harper, to remove the truck-trailer and its load from the damaged bridge. The work was performed, Harper submitted a bill to Pelican and upon its refusal to pay instituted this suit.

Third party defendant, Aetna Insurance Company, at the time of the accident was the automobile liability insurer of Pelican under the terms of a physical damage liability insurance policy. As the basis of its third party action against Aetna, Pelican contends that the conditions of the said policy in the event of the occurrence of loss required the insured to protect the insured vehicle from further loss and obligated the insurer to bear the reasonable expenses incurred in connection with such protection.

In answer to the third party petition Aetna denied such liability and affirmatively asserted lack of coverage under the policy of insurance with respect to Pelican's claim. As appellant, Aetna specifies error on the part of the trial court in holding that its policy extended coverage for the salvage operations of the Fletcher trailer, drawworks and derrick. Further error is specified as to the holding that the cargo policy of the Insurance Company of North America did not extend coverage to the salvage operations.

Pelican's claim as third party plaintiff against the Insurance Company of North America is based upon the provisions of a policy of cargo insurance which was effective at the time of the accident in favor of Pelican as a cargo carrier. Pelican, as appellant from the part of the judgment rejecting its demands against the Insurance Company of North America, also specifies error on the part of the trial court in holding that the policy did not extend coverage with respect to the salvage operations.

It is established that Aetna has paid Pelican as its assured for the damages, less the deductible amount provided by the policy, which were actually sustained as the result of collision by the insured truck owned by Pelican.

Although not made a part of Aetna's specifications of error as appellant, and so far as we can determine not covered by its pleadings, counsel for said appellant has argued before this court that Pelican failed to prove the amount of the proportion of the cost of the salvage operations attributable to the rescue of the Pelican truck. In other words, while relying primarily upon the defense of lack of coverage with respect to any and all costs incurred in the salvage operations, counsel appears to present, by argument an alternative contention. In opposition to this argument counsel for Pelican contends that this point was never raised during trial of the case and that no effort was made on behalf of Aetna to establish the cost of the salvage operations which were necessary exclusively for the rescue of the truck.

Our examination of the record fails to disclose any evidence which would support a conclusion that the truck could have been rescued or salvaged independent of, and without relation to, the performance of a similar operation with respect to the trailer and its cargo. We regard such a showing as being essential for the purpose of establishing a foundation for appellant's contention. The truck, trailer and cargo were treated as a unit in the conduct of the salvage operation. The question raised appears to be a novel one upon which we can find no authority, but we are constrained to hold that this issue should have been raised by appellant's pleadings as a matter of defense and supported by evidence on trial of the case. We think it would be highly improper, unjust and inequitable, under the circumstances, to maintain the contention which is presented exclusively by way of argument. Accordingly, this argumentative defense is rejected.

The only issue which we think is properly before the court, by reason of Aetna's appeal as against the judgment in favor of Pelican, relates to the defense of lack of coverage, which issue must be determined upon the basis of an interpretation of the provisions of the policy. We set forth below the extracts from the policy contract which we think are in any degree relevant to the question presented:

'INSURING AGREEMENTS

'Coverage E--Collision or Upset:

To pay for direct and accidental loss of or damage to the automobile, hereinafter called Loss, caused by collision of the automobile with another object or by upset of the automobile.'

'Coverage J--Towing and Labor Costs:

To pay for towing and labor costs necessitated by the disablement of the automobile, provided the labor is performed at the place of disablement.'

'7. General Average and Salvage Charges:

The Company with respect to such transportation insurance as is afforded by this policy shall pay any general average and salvage charges for which the named insured becomes legally liable.'

'CONDITIONS

'12. Named Insured's Duties When Loss Occurs--Coverages D, E, F, G, H, I and J: When loss occurs the named insured shall:

(a) protect the automobile, whether or not the loss is covered by this policy, and any further loss due to the named insured's failure to protect shall not be recoverable under this policy; reasonable expense incurred in affording such protection shall be deemed incurred at the company's request;'

'17. No Benefit to Bailee--Coverages D, E, F, G, H, I and J: The insurance afforded by this policy shall not enure directly or indirectly to the benefit of any carrier or bailee liable for loss to the automobile.'

We think consideration of all of the above quoted provisions may be rejected with the exception of the Conditions set forth under 12(a), which covers the factual situation here involved and determines the liability of the insured. We find nothing ambiguous, indefinite or uncertain in the plain obligation imposed upon the insured, in the event of loss under the Coverage (E) in the nature of collision or upset, to 'protect the automobile, Whether or not the loss is covered by this policy, * * *'. The condition contains a penalty for the failure of the insured to take action to protect the automobile by excluding any recovery for loss due to such failure. The obligation of the insurer is as...

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