Louisville Gas and Electric Co. v. American Insurance Co., 18304.

• Decision Date: 16 July 1969
• Docket Number: No. 18304.,18304.
• Citation: 412 F.2d 908
• Parties: LOUISVILLE GAS AND ELECTRIC COMPANY, Plaintiff-Appellant, v. The AMERICAN INSURANCE COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

412 F.2d 908 (1969)

LOUISVILLE GAS AND ELECTRIC COMPANY, Plaintiff-Appellant, v. The AMERICAN INSURANCE COMPANY, Defendant-Appellee.

No. 18304.

United States Court of Appeals Sixth Circuit.

July 16, 1969.

Albert F. Reutlinger, Louisville, Ky., for appellant.

Malcolm Y. Marshall, Louisville, Ky., for appellee, James S. Welch, Ogden, Robertson & Marshall, Louisville, Ky., on brief.

Before PECK, McCREE and COMBS, Circuit Judges.

McCREE, Circuit Judge.

This is an appeal from a judgment of the District Court, entered on a jury verdict, dismissing appellant's suit with prejudice. The questions presented are whether certain damage which occurred on April 22, 1960 to one of appellant's electrical transformers is within the coverage of an insurance policy written by appellee and, if so, whether the District Court's judgment must still be affirmed because the judge erred in holding that appellant had produced sufficient evidence to create a fact question for the jury, thus requiring his denial of appellee's motion for a directed verdict. Jurisdiction is based on diversity and the law of Kentucky controls. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

Appellant is a public utility serving Louisville and Jefferson Counties in Kentucky. The damage in question was caused by a malfunction within the transformer involving electrical arcing and resultant electromotive forces. Whether an explosion of some of the oil which was circulated through the transformer as an insulator and coolant also occurred is disputed.

Appellant instituted this action in the Jefferson County Circuit Court to recover appellee's pro rata share of the liability for the loss.¹ The cause was thereafter removed to the District Court and was tried before a jury. The District Judge instructed the jury that appellant could not recover under the policy unless it found that the electrical arcing was followed by an explosion which, apart from other causes, resulted in more than two hundred dollars damage. He then submitted to the jury the following interrogatory:

Did an ensuing explosion, following an electrical arc, occur in either the selector switch compartment or the main tank of the transformer, which was followed by some damage caused by the explosion in the compartment where it took place in excess of $200?

The jury answered this in the negative and pursuant to his further instructions, returned a verdict for appellee. Judgment was entered accordingly, and this appeal followed.

Appellant contends that the District Court's charge to the jury was erroneous and that it is entitled to recover under the policy if the arcing caused an explosion and if the arcing and explosion together produced total damage in excess of two hundred dollars. We hold that the policy should be construed in this manner and that the judgment of the District Court should therefore be reversed.

The policy's "explosion clause"² provides: "This Company shall not be liable for any loss by explosion unless such loss (including loss, if any, by ensuing fire) exceeds $200 * * *." Although the total damage to the transformer in this case exceeded one hundred thousand dollars, most, if not all, of the damage was apparently caused by the arcing and electromotive forces. Whether damage of this type can be considered in determining that a "loss by explosion" in excess of two hundred dollars occurred requires consideration of another provision of the explosion clause which states:

The coverage of loss by explosion under this endorsement shall include direct loss by any artificial electrical disturbance immediately preceding and causing such explosion * * *.³

We hold that this provision can reasonably be construed to define the term "loss by explosion" and, therefore, permits consideration of the damage from the electrical arcing for the purpose of determining whether the minimum insured loss was incurred by appellant.

The distinction, urged by appellee, between the "coverage of loss by explosion" (our emphasis) and the definition of such loss is neither clear nor obvious. It is just as reasonable to view these provisions as insuring against all covered losses, subject only to the condition that they exceed a minimum amount. So construed they would be analogous to the familiar deductible provisions of many automobile collision insurance policies. Although ap...