Maretti v. Midland Nat. Ins. Co.
| Decision Date | 22 May 1963 |
| Docket Number | Gen. No. 48834 |
| Citation | 190 N.E.2d 597,42 Ill.App.2d 17 |
| Parties | Louis Arnold MARETTI, Plaintiff-Appellee, v. MIDLAND NATIONAL INSURANCE COMPANY, a corporation, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Heineke, Conklin & Schrader, Chicago, Paul H. Heineke, Edwin A. Strugala, Chicago, of counsel, for defendant-appellant.
Traeger, Bolger & Traeger, Chicago, Lawrence C. Traeger, Jr., Chicago, of counsel, for plaintiff-appellee.
This is an appeal by defendant insurance company from a declaratory judgment finding that under the terms of its policy it is obligated to defend plaintiff (hereinafter called the 'insured') in a suit for personal injuries brought against him by one Johnny Miller, a minor. The sole issue is whether the complaint in the personal injury suit stated a cause of action against the insured within the scope and coverage of the policy. No question of fact is involved. Determination of the issue rests on the allegations of that complaint and on the interpretation of the policy. Employers' Liability Assurance Corp. Ltd. v. Youghiogheny & Ohio Coal Co., 8 Cir., 214 F.2d 418 (Minn.1954); Hardware Mutual Cas. Co. v. Schantz, 5 Cir., 186 F.2d 868, 872 (Texas, 1951).
The insured is an itinerant exhibitor of fireworks. To protect himself against the hazards of his business, he took out a policy of insurance with defendant company. On August 4, 1957 he exhibited fireworks at premises near Taylor and Halsted streets, in Chicago. Sometime after the exhibition, the personal injury suit against him was commenced in the Circuit Court of Cook County. The complaint alleged that on August 4, 1957 the insured had negligently left live explosive bombs upon the grounds about the area where the display had been presented and that a child, not named, of tender years had picked up one of the live bombs and had playfully thrown it, whereupon it exploded and the minor Miller was seriously and permanently injured. The following grounds of negligence were charged:
Negligently handled said fireworks or explosives;
Failed to count the fireworks and explosives before and after the exhibition;
Selected incompetent and inexperienced agents to handle the same;
Left live fireworks and/or explosives about the area after the exhibition;
Failed to provide safety devices.
The trial court held that the complaint in the personal injury suit stated a case within the coverage of the policy, and that the insurance company was obligated to defend.
The policy is a standard form of 'Owners, Landlords and Tenants Liability' policy. The insured obviously does not come under any of those designations, but the form, while so designated, is adaptable to a large group of insurable risks. The policy consists of four pages, most of it in small print, and in addition there is a long typewritten rider atached to the first page. We estimate the total number of printed words in the policy itself to run approximately fifty-five hundred and the typewritten rider to contain 500 to 600 more. In construing the policy we must take a view of the entire document, since it is unlike any ordinary contract. It is designed to cover a multitude of risks and therefore is not only a long document, but one of extraordinary adaptability and complexity. The portions which are material to a particular risk are not isolated from the immaterial and can be ascertained only by reference, cross-reference and re-cross reference.
The first heading under the title is 'Declarations,' under which are four items. Item 1 states the name, address and business of the insured. Item 2 states the policy period. Item 3 provides that the 'insurance afforded is only with respect to such and so many of the * * * coverages' as is indicated by the specific premium charge, and it sets out a tabulation of coverages, subdivided into A, B, C and D. For our purpose we need only be concerned with which fixes the limits of liability as to each person at $50,000 and as to each accident at $100,000. Under a section called 'Divisions,' there is a group of four items connected with bodily injuries. No. 1 shows 'Premises--Operations--$350.00,' and the figure '$350.00' is again shown in the column next to it, under the heading 'Premiums.' Item 4 of 'Declarations' (which is on the first page of the printed form, but hidden by the typewritten rider) is headed: 'Description of Hazards,' and contains a tabulation of the various risks which can be insured against under the policy, as follows: 1. 'Premises--Operations;' 2. 'Elevators;' 3. 'Structural Alterations, New Construction, Demolition;' 4. 'Products--Completed Operations;' and 5. 'Contractual--Specified Types of Agreements.' Under Section 1--Premises--Operations' is typed: 'Fireworks exhibitions--contractors risk only--715 cs per $100 of gross receipts,' and other figures indicating on what the premium was based, which is not relevant here, but it again shows that premium as '$350.00.' In each space reserved for risks 2 through 5 are typed the words, 'Not covered.' The relevance of this, as argued by the insurance company, will be hereinafter discussed.
The rider, designated 'Special Insuring Agreements Endorsement,' undertook to adapt the form policy to the needs of a fireworks exhibitor. It curtailed coverage by requiring that the insured inform the insurance company of any proposed exhibition prior to the date thereof. It also stated the conditions under which coverage could be afforded to others who had contracted with the insured for the exhibition of fireworks.
Page 2 of the printed form constitutes the insuring agreements, under which are four divisions. Under Item 1 is
'Coverage A . . . pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . sustained by any person, caused by accident and arising out of the hazards hereinafter defined.'
Under Item 2 is the following:
'(a) defend any suit against the insured alleging such injury . . . and seeking damages on account thereof, even if such suit is groundless, false or fraudulent . . .'
Other provisions under the title 'Definition of Hazards' which are specifically relevant are 'Division 1--Premises--Operations,' which refers to: 'The ownership, maintenance or use of the premises, and all operations necessary or incidental thereto,' and 'Division 4--Products--Completed Operations' which reads:
'(1) Goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name, if the accident occurs after possession of such goods or products has been relinquished to others by the named insured or by others trading under his name and if such accident occurs away from premises owned, rented or controlled by the named insured or on premises for which the classification stated in division 1 of Item 4 of the declarations excludes any part of the foregoing; provided, such goods or products shall be deemed to include any container thereof, other than a vehicle, but shall not include any vending machine or any property, other than such container, rented to or located for the use of others but not sold.
'(2) Operations, if the accident occurs after such operations have been completed or abandoned and occurs away from premises owned, rented or controlled by the named insured; provided, operations shall not be deemed incomplete because improperly or defectively performed or because further operations may be required pursuant to an agreement; provided further, the following shall not be deemed 'operations' within the meaning of the paragraph: (a) pick-up or delivery, except from or onto a railroad car, (b) the maintenance of vehicles owned or used by or in behalf of the insured, (c) the existence of tools, uninstalled equipment and abandoned or unused materials and (d) operations for which the classification stated in division 1 of Item 4 of the declaration specifically includes completed operations.'
There is on the same page and toward the bottom thereof a long list in small type called 'EXCLUSIONS,' under which are the words: 'This policy does not apply:' Following which is a long itemization, running from (a) to (n). Under item (c), which in turn is divided, is the following statement: 'under division 1 of the Definition of Hazards * * * to * * * (2) the Products--Completion Operations Hazards * * *.' This is the exclusion which the insurance company would apply in the instant case, and it should therefore be considered in conjunction with the provisions which the insured contends cover the risk here involved.
The 'Premises--Operations' division of the policy covers accidents which arise out of the operation of a fireworks exhibitor. Part of the operations incidental to such an exhibition is the removal of any live bombs which might be lying about after an exhibition. Therefore, accidents caused by failure to remove bombs from a display area and which occur after termination of an exhibition are insured against under the 'Premises--Operations' division, unless it can be said that such coverage is clearly and unambiguously excluded by some other provision of the policy.
It is argued by the insurance...
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