Kirchner v. Hartford Acc. & Indem. Co.

• Decision Date: 07 April 1969
• Docket Number: No. 25172,25172
• Citation: 440 S.W.2d 751
• Parties: Darrell G. KIRCHNER, Plaintiff-Respondent, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 751

440 S.W.2d 751

Darrell G. KIRCHNER, Plaintiff-Respondent, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, a corporation Defendant-Appellant.

No. 25172.

Kansas City Court of Appeals, Missouri.

April 7, 1969.

Murphy & Kortenhof, Edward E. Murphy, Jr., St. Louis, for appellant.

Charles H. Howard, Hendren & Andrae, Sam C. Blair, Jefferson City, for respondent.

CROSS, Judge.

This is an action for a declaratory judgment brought by plaintiff Darrell G. Kirchner to determine the coverage provided by a 'Comprehensive General-Automobile liability policy' issued by defendant Hartford Accident & Indemnity Company which insured him, (along with other coverages) against liability for damages to property caused by accident, and obligated Hartford to provide legal defense of suits and claims therefor.

This controversy arose when a certain building under construction, on which plaintiff had performed a part of the work, collapsed and fell. The building owners were paid for the loss by their insurer, Fidelity & Casualty Company of New York, which in turn, as subrogee, filed suit against plaintiff for damages caused by the collapse of the building. Defendant Hartford, relying upon a policy exclusion, refused to defend the suit and denied that the policy afforded coverage. This action for a declaratory judgment resulted.

Upon trial to the court, without a jury, judgment was rendered to the declaratory effect that the policy exclusion relied on by Hartford (hereinafter identified) has no application to the claim in question, that Hartford must afford coverage to plaintiff for the claims asserted against him in the suit brought by Fidelity & Casualty Co. and denied that action. Additionally, the judgment provided that plaintiff recover of defendant the sum of $750.00 already expended for attorneys' fees and other items in defense of the suit. Hartford appealed originally to the Supreme Court but the cause was transferred to this court because it does not appear the amount presently in dispute exceeds $15,000.00.

The facts here set out are undisputed, and were established by the testimony of plaintiff. Defendant produced no witnesses. Plaintiff, age 29, has been a structural steel worker since the age of 17, and is presently engaged in the business of steel erection, under the name 'Kirchner Crane Rental.' In September of 1965, he applied to Hartford's agent for insurance that would give him 'complete coverage so I would be covered in any accident I would have in my line of business.' Defendant issued him two policies, one for workmen's compensation insurance, the other a comprehensive liability insurance policy. Delivering the policies, the issuing agent told plaintiff 'with these two policies I would have all the coverage I would need. I would be covered in every way.' The comprehensive liability policy separately insured plaintiff against liability for bodily injury and property damage (1) caused by automobile accident and (2) caused by accident other than 'automobile'. Separate premiums were exacted for each classification. The policy describes plaintiff's business as 'Steel Erectors' and the schedule of premiums for non-automobile liability coverage specifically identified plaintiff's operations as 'Iron or Steel Erection'. The property damage insuring clause in the comprehensive liability policy (non-automobile) reads as follows:

'Coverage D--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.'

The policy contains the further provision that defendant agrees to:

'II (a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiations and settlement of any claim or suit as it deems expedient.'

The policy contains thirteen exclusions, inclusive of exclusion (j) which in perinent part is here quoted:

'This policy does not apply: * * * (j) under coverage D, to injury to or destruction of * * * (3) * * * property in the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control, or, (4) any goods, products or containers thereof manufactured, sold, handled or distributed or premises alienated by the named insured, or work completed by or for the named insured, out of which the accident arises; * * *' (Italics supplied.)

Sometime after obtaining the above described policies, plaintiff entered into a subcontract with one L. N. Brown who, as general contractor, was constructing a building on the premises of Missouri Military Academy at Mexico, Missouri. Plaintiff's subcontract agreement was to perform the labor in erecting the steel used in the building. He was to furnish no materials. The building was of a stock design and was sold by Brown as agent of the American Building Company. That concern had prefabricated various parts for the building, including steel framework, insulation and metal 'sheeting', for assemblage according to an accompanying 'erection manual' and prepared plans. The steel parts were numbered and were to be bolted together according to the manual which directed 'which piece fit in with which piece.'

When plaintiff arrived at the job site (either on Monday, April 4th, or Wednesday, April 6th, 1966) the concrete foundation and footings were completed and the anchor bolts were already in. Plaintiff had nothing to do with any of that construction. He found all the steel materials stacked a short distance from the building, none of which he had supplied. Using Brown's truck to move the steel, plaintiff hauled it to the immediate building site to begin his work. After consulting with Brown and obtaining his approval as to the method of doing the work plaintiff proceeded to fasten the numbered steel frame members to the anchor bolts imbedded in the foundation, according to the manufacturer's erection manual and plans Brown had furnished him to guide the work. As the steel frame members were so erected they were tied together with steel 'purlins' which served as cross-braces, and were additionally braced by guy cables temporarily attached to the frame and anchored to the bolts in the foundation. In doing this work plaintiff used a crew of employees varying from five to ten men. His equipment consisted of a hoisting crane, electric welder, cutting torch, cable, turnbuckles and small hand tools--the normal equipment used by steel workers. He had no office or desk at the work site, was present there only while the work was being done, and kept no watchman there after working hours. During progress of the work Brown was usually present and plaintiff advised and consulted with him from time to time as to the method pursued, whether it was satisfactory, and whether 'he wanted to make any changes or do it a certain way.' Plaintiff would have made any changes requested, but the work progressed to Brown's satisfaction.

Other work to be done by Brown under the general contract which did not involve plaintiff, (in addition to the foundation, footings and anchor bolts) included the construction of brick endwalls, block sidewalls, an asphalt floor, the electrical work, and the plumbing and lighting. While plaintiff and his employees were erecting the steel, plaintiff saw employees of Missouri Military Academy and maintenance men about the job site. He also saw plumbers, electricians and Brown's employees working on the job site. Brown was actively working to backfill inside and around the outside of the building as plaintiff was putting up the steel. On the job site were bricks, sand, lumber, plumbing and electrical supplies, none of which belonged to plaintiff.

Plaintiff left work about 4:00 P.M. on Friday following the day he started the job. He had finished putting up all the steel frames and some of the purlins. The steel work was then approximately one-fourth done. The remaining work of installing the additional purlins, insulation and sheathing, he intended to resume the following week. Before leaving the job he talked to Brown and inquired as to his satisfaction with the work. Plaintiff narrates that conversation as follows: 'Q On the Friday afternoon before you left, did you talk with Mr. Brown about how the work was going? A Yes, I did. Q And did you ask him if it looked all right, was satisfactorily braced, before you left the job? A Yes. We discussed this, and I asked him if he thought it needed any more guy cables or anything, and he said no, it looked real good. He accepted it and it was satisfactory. Q If he had told you any more cabling was needed, what would you have done? A I would have put it on. * * * Q * * * Did you do whatever Mr. Brown wanted you to do? A Yes.'

On Sunday night, April 10th, 1966, the building collapsed, apparently from the effect of a heavy and unusual windstorm in Mexico that weekend. The accident caused extensive damage to the building, inclusive of damage to the steel that had been erected, to the foundation and to the imbedded anchor bolts. Neither plaintiff nor any of his employees was present when the building collapsed and plaintiff has not been able to locate anybody who was present when the accident occurred. 'At that time' nobody was claiming that plaintiff was responsible for the casualty. There had been damage to places 'other than this building.' Thereafter the concrete foundation was repaired, the anchor bolts were replaced and new steel was procured. Plaintiff then completed his job of erecting the steel part of the building and was paid for his services.

Promptly after discovering the damage to the building plaintiff contacted Hartford's agent, told him the extent of the damage and inquired what he should do. The...