Jones Masonry, Inc. v. West American Ins. Co.

• Decision Date: 24 October 1988
• Citation: 768 S.W.2d 686
• Parties: JONES MASONRY, INC., Plaintiff-Appellee, v. The WEST AMERICAN INSURANCE COMPANY, an Ohio Casualty Group Company, Defendant-Appellant. 768 S.W.2d 686
• Court: Tennessee Court of Appeals

Page 686

768 S.W.2d 686

JONES MASONRY, INC., Plaintiff-Appellee, v. The WEST AMERICAN INSURANCE COMPANY, an Ohio Casualty Group Company, Defendant-Appellant.

768 S.W.2d 686

Court of Appeals of Tennessee,

Western Section,

at Jackson.

Oct. 24, 1988.

Application for Permission to Appeal

Denied by Supreme Court

Jan. 23, 1989.

J. Cecil McWhirter, Richard W. Vaughn, Jr., Memphis, for defendant-appellant.

Richard Glassman, Memphis, for plaintiff-appellee.

CRAWFORD, Judge.

This is a suit on a liability insurance policy. Defendant, West American Insurance Company, appeals from the order of the trial court denying its motion for summary judgment and granting summary judgment to plaintiff, Jones Masonry, Inc.

A review of the pleadings, affidavits and depositions filed in the cause reveals the following facts.

At all pertinent times, a contract of liability insurance existed between the plaintiff Jones and defendant West American and the provisions of the policy pertinent to this case are set out in our discussion of the issues for review.

In December, 1983, plaintiff was the masonry subcontractor to the general contractor, Brown Construction Company, for construction of The Church of the Incarnation in Shelby County. While plaintiff's employees were doing the brick work, mortar splashed or dropped onto some uncovered windows of the church. Two of plaintiff's employees were on the construction site cleaning the brick when the general contractor's superintendent instructed them to clean the windows. These employees did as instructed. However, the cleaning process the two employees were using for the brick was not proper for the windows, thereby damaging the window panes and frames resulting in monetary damages of $4,042.21. The general contractor held a "retainage" of money due the subcontractor pending satisfactory completion of the subcontractor's work. The general contractor, after having the frames and windows repaired and replaced, paid for the work out of the plaintiff's retainage. Plaintiff then sought reimbursement from West American, but West American declined, resulting in this action.

Both parties filed motions for summary judgment and the only issue for review is whether the trial court erred in denying West American's motion and granting Jones' motion.

West American first contends that on the undisputed facts it is not liable under the terms of the policy and second that plaintiff did not meet a required condition precedent to recovery. On the other hand, Jones contends that under the same undisputed facts coverage is provided. The dispute requires a construction of the policy which is a question of law for the court. Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355 (1955).

The policy as pertinent to this case provides:

COVERAGE B--PROPERTY DAMAGE LIABILITY

The company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of

* * *

Coverage B. property damage

to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured ... even if any of the allegations of the suit are groundless, false or fraudulent, ...

* * *

CONDITIONS

* * *

5. Action Against Company. No action shall lie against the company unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.

* * *

In Cocke County Board of Highway Commissioners v. Newport Utilities Board, 690 S.W.2d 231 (Tenn.1985), our Supreme Court said:

It is the Court's duty to enforce contracts according to their plain terms. Bob Pearsall Motors, Inc. v. Regal Chrysler-P., Inc., Tenn., 521 S.W.2d 578 (1975). In construing a contract, the entire contract should be considered in determining the meaning of any or all its parts. Crouch v. Shepard, 44 Tenn. 384, 4 Cold. 383 (1867). It is the universal rule that a contract must be viewed from beginning to end and all its terms must pass in review, for one clause may modify, limit or illuminate another. Associated Press v. WGNS, Incorporated, 48 Tenn.App. 407, 348 S.W.2d 507 (1961).

690 S.W.2d at 237.

In Guardian Life Insurance Co. of America v. Richardson, 23 Tenn.App. 194, 129 S.W.2d 1107 (1939), the Court set out the rules for the construction of insurance contracts:

"Contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense. The rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists, nor does it authorize the court to make a new contract for the parties or disregard the evidence (intention) as expressed, or to refine away terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties and embodying requirements, compliance with which is made the condition to liability thereon. Neither does the rule prevent the application of...