Larsen v. General Cas. Co. of Wisconsin
| Decision Date | 27 July 1951 |
| Docket Number | Civ. No. 3442. |
| Citation | 99 F. Supp. 300 |
| Parties | LARSEN v. GENERAL CAS. CO. OF WISCONSIN. |
| Court | U.S. District Court — District of Minnesota |
Freeman, King, Larson & Peterson, Minneapolis, Minn. (Harding A. Orren, Minneapolis, Minn., of counsel), for plaintiff.
Robb, Robb & Van Eps, Minneapolis, Minn., for defendant.
This is a suit on an insurance policy which is designated as a Manufacturers' and Contractors' Public Liability policy. It was issued by the defendant to the plaintiff, who operates under the name of Camel Oil Burner Company. His business is devoted primarily to the servicing and repairing of oil burners. In August, 1948, Larsen was engaged to clean and service the furnace and oil burner at the residence of one Frank Clinite. On August 3rd, he sent one of his employees by the name of Strand to clean the furnace preparatory to his inspection and servicing of the oil burner. The cleaning was completed on August 3, 1948, but in performing this part of Larsen's contract, the connection between the furnace door and the oil burner was negligently reassembled — the union was cross-threaded — and on August 7, 1948, when the oil burner was turned on, oil leaked out of the cross-threaded union, and a fire ensued.
The Home Insurance Company paid the loss to Mr. Clinite, and later, as subrogee, it commenced an action against Larsen, based upon negligence of his servant, to recover the amount of damage it paid to Mr. Clinite. The defense of that suit was tendered to this defendant by Larsen, but the defense was refused. The Home Insurance Company obtained a judgment against Larsen in the sum of $4,683.81 on or about December 12, 1949, and he now sues upon his Manufacturers' and Contractors' Public Liability policy seeking to recover the amount of the judgment in the Home Insurance Company suit, plus interest and attorneys' fees.
The defense herein is predicated upon three principal grounds: (1) That the incident in question and resulting fire was not an accident within the meaning of the policy; (2) that the loss is excluded by reason of the provisions of the policy which exclude obligations assumed by contract; and (3) that the loss is excluded by the terms of the policy by reason of the fact that any accident was the result of a condition in work completed by the insured at the premises of Mr. Clinite.
The insuring agreement in the property damage endorsement of the policy reads as follows: "To pay on behalf of the Insured all sums which the Insured shall become obligated to pay by reason of the liability imposed upon the Insured by law for damages because of injury to or destruction of property, including the loss of use thereof, as the result of an accident occurring during the effective period of this endorsement, caused solely and directly by reason of the business operations of the Insured described in and covered by the Schedule of this endorsement, except as to any operations or exposure in such premises which are shown to be excluded in said policy or, which are expressly shown to be excluded elsewhere in this endorsement, and subject further to all exclusions, conditions and limitations hereinafter contained."
Included in the provisions of the policy under "Definition of Hazards" appears the following:
The description and classification of operations is as follows:
The pertinent provisions of the exceptions upon which defendant relies are as follows:
* * * * * *
"(f) to the existence of any condition in work completed or abandoned by the named Insured, if such work is not on premises owned, rented or controlled by the named Insured, except with respect to tools, equipment or unused materials left at the place of such work.
* * * * * *
"(3) Under Sections 1 and 2 of the Definition of Hazards
* * * * * *
"(i) to liability assumed by the Insured under any contract or agreement."
There is no merit to defendant's contention that the fire loss was not the result of an accident. The negligent act of Larsen's employee in failing to connect the pipes in the furnace properly after cleaning proximately caused the fire when the oil burner was thereafter turned on. The causal connection between the leaking of the oil from the cross-threaded union and the fire is admitted. There is no limitation or restriction in the policy with reference to the use of the word "accident." Consequently, there is no occasion to employ a narrow or restricted interpretation or understanding of that term. In general parlance, and with the usual understanding of the word, there can be no question but that the damage was caused accidentally by the negligence of Larsen's employee. The fire was an occurrence or mishap unintentionally caused and comes within the plain intendment of the policy as the term "accident", broad and unrestricted, is used therein.
And likewise there is an utter absence of any persuasiveness in defendant's contention that this accident is excluded from coverage because the "liability was assumed by the insured under any contract or agreement." Defendant argues that because the insured had a contract to clean and service the oil burner, the resulting accident comes within the meaning of the exclusion. Obviously, this provision is only intended to exclude liability which the insured assumes by some agreement or understanding of contract. Such an agreement would preclude the insured from interposing any defense available to him under the law. The policy only intends to cover liability "imposed upon the insured by law." All business transactions are entered into according to some sort of an agreement or understanding. This business venture was the usual type which the policy was designed to cover within the terms of the policy if liability was imposed by law. It is conceded that liability for the...
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