Kuhn's of Brownsville v. Bituminous Cas. Co.
| Decision Date | 23 July 1954 |
| Citation | 197 Tenn. 60,1 McCanless 60,270 S.W.2d 358 |
| Parties | , 197 Tenn. 60 KUHN'S OF BROWNSVILLE, Inc. v. BITUMINOUS CAS. CO. |
| Court | Tennessee Supreme Court |
Denney, Leftwich & Glasgow, Nashville, for complainant.
Norvell & Minick, Nashville, for defendant.
This is a suit on an insurance policy brought by complainant Kuhn's against Bituminous Casualty Company. The cause was tried on bill and answer and stipulation of facts, after which the lower court held the Insurance Company liable on the policy.
It appears that the policy had a limited coverage on two store buildings in the business section of Brownsville, Tenn., and Kuhn's, for the purpose of operating a retail store therein, undertook to remodel the premises and really to make one store out of two buildings, and in doing so did some excavation work under the buildings. Following this excavation, or the removal of the wall between the two buildings, the two buildings leased by the complainant, together with the building adjoining the premises on the east, collapsed, and the buildings and all the contents became a total loss. On May 29, 1952, the building immediately west of the premises also collapsed and that building together with its contents became a total loss. The excavation work that was carried on by the complainant prior to May 27, 1952, was the proximate cause of the collapse of the buildings on May 27th and the collapse of the building on the west side on May 29th. No excavation took place between May 27th and May 29th. The owners of the property on the east and west of this building filed their claims against the Kuhn's Corporation for damages on account of the collapses. The complainant notified the Insurance Company of these claims and liability was denied.
It is admitted by the Insurance Company that complainant was obligated to pay the owners of the personal property destroyed by the collapse of the buildings on May 27, 1952, in the sum of $14,800, and was expected to pay the owners of the personal property destroyed by the collapse of the building on May 29, 1952, the sum of $28,900.
The Insurance Company in denying liability claimed that the damages sustained by the complainant were not covered by the policy.
There are two questions presented. First, is whether the policy in question makes the defendant liable for monies paid out by complainant because of destruction of personal property located in the adjoining buildings. If so, then the second question is whether the damages to the personal property claimed by the complainant resulted from one accident or from two.
The policy provides that the maximum liability of the company for property damages is $10,000 for one accident, and is $25,000 as an aggregate liability. It appears that the company agreed to pay the insured all sums that the insured would be obligated to pay the third parties for property damage by reason of the ownership and use of the premises described by the policy. This obligation of the Insurance Company is qualified by certain Exclusions set out in the policy. The defendant would be liable for the destruction of the property unless one or more of the Exclusions exempt the defendant from liability.
The portions of the policy which are applicable here provide:
'The Company agrees with the Insured * * * subject to the limits of liability, exclusions, conditions and other terms of the policy:
* * *
* * *
'Definition of Hazards
* * *
* * *
'Exclusions
'(g) Under Coverage B, with respect to Division 1 of the Definition of Hazards, to injury to or destruction of buildings or contents thereof caused by the discharge, leakage or overflow of water or steam from plumbing, heating, refrigerating or air conditioning systems, elevator tanks or cylinders, standpipes or fire hose, or industrial or domestic appliances, or any substance from automatic sprinkler systems, or by the collapse or fall of tanks or the component...
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...used: (1) looking to the effects of the accident, that is, the number of injured persons, e.g., Kuhn's of Brownsville, Inc. v. Bituminous Casualty Co., 197 Tenn. 60, 270 S.W.2d 358 (1954); (2) looking to the proximate cause or causes of the injury or injuries, e.g., Home Indemnity Co. v. Ci......
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