Maryland Casualty Co. v. United Corporation
| Decision Date | 04 November 1940 |
| Docket Number | 35.,Civ. A. No. 34 |
| Citation | 35 F. Supp. 570 |
| Parties | MARYLAND CASUALTY CO. v. UNITED CORPORATION OF MASSACHUSETTS et al. SAME v. MEXICAN PETROLEUM CORPORATION et al. |
| Court | U.S. District Court — District of Massachusetts |
David Burstein, Hale & Dorr, and Harry B. White, all of Boston, Mass., for plaintiff.
John J. Burns, Gerald May, and Burns & Brandon, all of Boston, Mass., for defendants United Corporation & Mexican Petroleum Corporation.
William F. Byrne and Tyler, Eames & Reynolds, all of Boston, Mass., for defendants Lawrence B. Dunham and C. Thomas Dunham, ex'rs of Will of Annie S. B. Dunham.
These two cases were tried together, and the facts in each are sufficiently identical to permit disposing of them as one.
The actions were brought under the Federal Declaratory Judgment Act, 28 U. S.C.A. § 400, seeking an adjudication of rights and liabilities under an automobile insurance policy issued to the defendants, United Corporation of Massachusetts, hereinafter referred to as the United Company, and the Mexican Petroleum Corporation, hereinafter referred to as the Mexican Company.
Findings of Fact.
The parties have submitted an agreed stipulation of facts which the court adopts as its findings of fact. In addition thereto, the court makes such additional findings as appear herein.
The plaintiff issued a liability policy insuring the defendants' motor vehicles for the calendar year 1932 to the extent of their interest in them. Under the terms of the policy, the plaintiff agreed to defend or settle all suits or legal proceedings brought against the assured, and to indemnify it against loss by reason of liability to pay damages under the conditions named in the policy. The policy limits were $20,000 and $40,000 for personal injury and $5,000 for property damage.
The Mexican Company was engaged in the business of selling fuel oil. It contracted with one Dunham for delivery of oil to the Dunham premises, an apartment house. Hayes, a commission agent for the Mexican Company, was in control of its plant in Cambridge, and contracted with the United Company to make deliveries for the Mexican Company to the Dunham apartment house. Oil was delivered as need arose and without specific instructions.
On April 6, 1932, about 9:30 a. m., the United Company made one of its routine deliveries to the Dunham apartment house through a hose running from its truck to the Dunham filler pipe. At 10:30 a. m., after the delivery had been made, and the truck had been driven away, an explosion occurred in the apartment house, with a resulting fire which caused damage to the person and property of Dunham's tenants. A little later, while the fuel oil was being pumped out of the tank in the apartment house where the explosion had occurred, it was observed that oil was running out of leaks in the bottom of the tank located in the apartment house, and that buckets had been placed under the tanks to receive the leaking oil. There was no evidence to indicate that these leaks had any connection with any faulty unloading by the United Company.
Shortly thereafter the Dunham tenants brought suit against Mrs. Dunham, and in 1934 obtained judgments against her to the extent of $6,700 for personal injury and $11,649 for property damage. Thereafter she paid these judgments and costs. Another insurance company, covering the apartment house with a public liability policy, reimbursed her to the extent of the judgments and costs incurred on account of the personal injuries.
On April 5, 1938, the Dunham executors filed suit in the Superior Court of Middlesex County against the defendants, the United Company and the Mexican Company. Counsel for the defendants here, in open court, waived any claim that the plaintiff must defend the Dunham actions so far as they are based on personal injury claims, but insisted that, under the terms of the motor vehicle insurance policy, and particularly under the "loading and unloading" clause, the plaintiff insurer is bound to defend the Dunham property damage suits. That clause in the policy insures against "damages * * * to property * * * resulting from an accident occurring * * * and arising out of the ownership, maintenance, or operation of any motor vehicle * * * or by the loading or unloading of merchandise carried on any such motor vehicle."
The question then is this: Are the property damage claims set out in the Dunham suit against the United Company and the Mexican Company such as reasonably come within...
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