Morris v. Western Cas. & Sur. Co.
| Decision Date | 25 October 1967 |
| Docket Number | No. 8680,8680 |
| Citation | 421 S.W.2d 19 |
| Parties | Guido MORRIS, Plaintiff-Respondent, v. The WESTERN CASUALTY AND SURETY COMPANY, a corporation, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Allen, Woolsey & Fisher, Russell G. Clark, Springfield, for defendant-appellant.
Mann, Walter, Burkart, Weathers & Schroff, Glenn A. Burkart, Springfield, for plaintiff-respondent.
The defendant-appellant in this declaratory judgment action is The Western Casualty and Surety Company (hereafter called 'Western'), who had issued to plaintiff-respondent, Guido Morris, a 'Manufacturers' and Contractors' Liability Policy' of insurance which was in force at all times here concerned. In February 1964 Morris, as an individual operating a plumbing, heating and electrical business out of his home in Fair Grove, Missouri, agreed to do 'electrical wiring' for Charles Edel. Morris does not manufacture any products and is not in the business of selling goods. Any materials used in the performance of services for customers are purchased by Morris from distributors 'boxed (or) in open bulk.' The 'electrical wiring' work was completed, accepted and paid for by Edel in April 1964 and Edel has claimed in a suit filed against Morris that on July 2, 1964, he was injured and damaged by 'electrical shock' because 'Morris defectively wired (Edel's) home in that * * * Morris failed to provide means of disconnecting all sources and supply of electricity.' Western declined to defend the damage suit which is still pending. The explanation given for its refusal is the work performed for Edel by Morris had been completed when the alleged accident occurred 'away from premises owned, rented or controlled by' Morris and this would be included only in coverage for 'Products--Completed Operations' which Morris did not have. A jury was waived for the trial of this cause in the Circuit Court of Greene County and Western was adjudged obligated to defend Morris in the damage suit and pay any judgment which might be rendered therein against him up to the policy limits of $5,000. Western was also declared to be indebted to Morris in the sum of $200 for attorneys' fees he had paid. Western's after-trial motions were overruled and it appealed.
When, as here, the trial court determines the cause without a jury we review the case upon both the law and the evidence (V.A.M.R. 73.01(d)) and tax ourselves with the task of determining if the circuit court's judgment was correct upon any legal theory consistent with the pleadings. University Bank v. Mock, Mo.App., 411 S.W.2d 843(1); Service Construction Company v. Nichols Const. Co., Mo.App., 378 S.W.2d 283, 290(12).
Morris contends the hazard 'Premises--Operations,' admittedly insured by the policy, covers 'the ownership, maintenance or use of premises, and all operations' by him in the business of 'electrical wiring' regardless of the accident site or whether the accident occurred as he was performing services or following completion of his work. (Emphasis added.) In the alternative, he pleads the policy is ambiguous as regards Western's obligations and should be construed to extend the coverage he claims.
The policy is printed on legal cap paper to which has been attached three additional pages. The 'Declarations' describe Morris' business as 'Plumbing and Electrical Wiring' but leave blank the 'Location of premises.' Item 3 of the Declarations (omitting the last or 'Property Damage Coverage B' column and other portions not presently germane) reads:
'Item 3. The insurance afforded is only with respect to such and so many of the following coverages and divisions of hazards as are indicated by specific premium charge or charges. The limit of the company's liability against each such coverage and division shall be as stated herein, subject to all the terms of this policy having reference thereto. The rating classifications under Description of Hazards do not modify the exclusions or other terms of this policy.
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Bodily Injury
Coverage A
------------------
Premium
Schedule of Coverages and Hazards Bases Rate Premium
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Coverages A and B
Division 1. Premises--Operations Estimated
Remuneration 29.52
See Schedule Attached
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Division 2. Elevators (Location Number
and Classification)
Not Covered
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Division 3. Independent Cost
Contractors
Not Covered
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Division 4. Products--Completed Sales Per $1,000 Sales
Operations --------------------------------
Not Covered
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* * *.'
The pertinent parts of the second or first inside page of the policy provide that Western 'agrees with the insured * * * subject to the limits of liability, exclusions, conditions and other terms of this policy:
'Insuring Agreements
'1. Coverage A--Bodily Injury Liability. To 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. Coverage B--Property Damage Liability * * *
'Definition of Hazards
'Division 1--Premises--Operations. The ownership, maintenance or use of premises, and all operations.
'Division 2--Elevators * * *
'Division 3--Independent Contractors * * *
'Division 4--Products--Completed Operations. (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 wich the classification stated in division 1 of Item 3 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 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 to be 'operations' within the meaning of this 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 3 of the declarations specifically includes completed operations; (3) the word 'operations' as used in the paragraph above includes any act or omission in connection with operations performed by or on behalf of the named insured on the premises or elsewhere, whether or not goods or products are involved in such operations.
* * *
* * *
'Exclusions
'This policy does not apply:
* * *
* * *
'(c) under division 1 of the Definition of Hazards, and under coverage c, to (1) the Independent Contractors Hazard or (2) the Products--Completed Operations Hazard; * * *'
The 'Schedule Attached' referred to in division 1 of Item 3 of the declarations, is denominated as 'Extension Schedule' and is the third item attached to the third page of the policy. Without reference, however, to any division, the 'Schedule of Coverage' lists:
'Excavation * * *
'Plumbing * * *
'Sheet Metal Works * * *
In the last major portion of the policy under the heading of 'Conditions,' we find these additional statements:
'1. Premium * * * when used as a premium basis: * * * (4) the word 'sales' means the gross amount of money charged by the named insured * * * for all goods and products sold or distributed during the policy period and charged during the policy period for installation, servicing or repair * * *
* * *
* * *
As above noted, in the Declarations of the policy there is nothing to indicate 'Location of Premises.' We find nothing in the policy which defines 'premises' as that word is used in the Declarations or in definition of hazards relating to 'Premises--Operations.'
The 'Premises--Operations' and 'Products--Completed Operations' hazards are separately defined and there is nothing in the policy to indicate a reciprocal relation between the two. While an exclusion does specify the 'policy does not apply * * * under division 1 of the Definition of Hazards * * * to * * *...
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