Masters v. Celina Mut. Ins. Co.

• Decision Date: 16 December 1966
• Citation: 209 Pa.Super. 111,224 A.2d 774
• Parties: Thomas MASTERS, trading as New Castle Construction Company, Appellant, v. CELINA MUTUAL INSURANCE COMPANY.
• Court: Pennsylvania Superior Court

Page 774

224 A.2d 774

209 Pa.Super. 111

Thomas MASTERS, trading as New Castle Construction Company, Appellant, v. CELINA MUTUAL INSURANCE COMPANY.

Superior Court of Pennsylvania.

Dec. 16, 1966.

Maurice Levinson, New Castle, for appellant.

Glenn McCracken, Jr., Braham & Mitsos, New Castle, for appellee.

Before ERVIN, P.J., and WRIGHT, WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ.

MONTGOMERY, Judge.

In an action of assumpsit appellant-plaintiff sought to recover on a manufacturer's and contractor's liability policy of insurance an amount of money for which he had become liable by reason of the total destruction of a derrick which he had contracted to move for a third party at a stone quarry. The derrick fell and was totally destroyed when the cable on Plaintiff's crane snapped during the movement. Judgment on the pleadings having been entered for the defendant this appeal by plaintiff followed.

The policy issued by appellee-defendant insured the plaintiff in coverage B against property damage liability 'caused by accident and arising out of the hazards hereinafter defined.' The initial definition of hazard includes, inter alia, 'The ownership, maintenance or use of premises, and all operations.' However, under 'Exclusions', paragraph (1), it is provided that the policy does not apply to the injury to or destruction of '(3) * * * property in the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control. * * *'

The lower court held that this clause excluded from the policy any liability to pay for the damage to the derrick, because it was 'property in the care, custody or control of the insured' at the time it was demolished. This interpretation of the contract is supported by International Derrick & Equipment Company v. Buxham, 240 F.2d 536 (3rd Cir. 1957).

The foregoing interpretation of exclusion (1) is not seriously questioned by the plaintiff. The thrust of his argument is that exclusion (1) has been modified by other provisions of the policy, particularly by exclusion (n) and the reference to it in part two of the policy. Exclusion (n) reads as follows:

'This policy does not apply:' to

'(n) under coverage B, with respect to division 1 of the Definition of Hazards to injury to or destruction of any property arising out of (1) blasting or explosion, other than the explosion of air or steam vessels, piping under pressure, prime movers, machinery or power transmitting equipment, or (2) the collapse of or structural injury to any building or structure due (a) to grading of land, excavation, borrowing, filling, back-filling, tunneling, pile driving, coffer-dam work or caisson work, or (b) to moving, shoring, underpinning, raising or demolition of any building or structure or removal or rebuilding of any structural support thereof; Provided, however, part (1) or part (2) of this exclusion does not apply to operations stated, in the declarations or in the company's manual, as not subject to such part of this exclusion;' (Emphasis supplied.)

Part two of the policy contains the declarations and under the description of hazards it is stated:

'IRON OR STEEL ERECTION N.O.C.

5057

NOT SUBJECT TO EXCLUSIONS & O'

Defendant asserts that this exception from the exclusion of paragraph (n) applies only to iron and steel erection jobs. Plaintiff on the other hand asserts that 'Not...