Neale Const. Co. v. United States Fidelity & Guaranty Co.
| Decision Date | 04 November 1952 |
| Docket Number | No. 4489.,4489. |
| Citation | 199 F.2d 591 |
| Parties | NEALE CONST. CO., Inc. v. UNITED STATES FIDELITY & GUARANTY CO. |
| Court | U.S. Court of Appeals — Tenth Circuit |
C. K. Sayler, Topeka, Kan. (Harry K. Allen, L. M. Ascough, and John A. Bausch, Topeka, Kan., on the brief), for appellant.
David H. Fisher, Topeka, Kan. (Irwin Snattinger, Topeka, Kan., on the brief), for appellee.
Before BRATTON, HUXMAN and MURRAH, Circuit Judges.
The question in this case is whether a breach of a construction contract resulting in defective construction falls within the coverage of a Comprehensive General Automobile Liability Policy issued to the appellant, Neale Construction Company, Inc., by the United States Fidelity and Guaranty Company, so as to require the latter to defend a damage action brought against Neale in Texas and pay the judgment obtained therein.
The Neale Construction Company entered into contracts with North Plains Telephone Company and with Panhandle Electric Corporation to perform certain work and construction in the State of Texas. In general Neale agreed to furnish labor, motor vehicles and other equipment necessary to perform the aerial and underground construction work on North Plains telephone system in Dumas, Texas. It agreed to splice the necessary telephone cables and to make the installations in accordance with the specifications of the contract.
Generally the complaints in the breach of contract action alleged that Neale Construction Company failed to perform its obligations under the contracts in that it performed defective wire spinning of all aerial cables, in that it did not properly terminate the wire spinning at the end of each span, that it failed to properly take up the slack in the spinning wire in each span and did not bind the spinning wire at the end of each span, as required by the specifications, but on the other hand performed this work in a crude and improper manner.
Neale Construction Company served notice of the pendency of the suit upon the insurance company and demanded that it come in and defend the action. The insurance company denied liability and refused to defend the suit. A trial thereof resulted in a judgment against Neale Construction Company. This action was then instituted, alleging coverage under the policy and that the insurance company was obligated to defend and was liable for the judgment rendered therein. Motions for summary judgment were filed both by Neale Construction Company and by the insurance company. This appeal is from the judgment of the court sustaining the motion for summary judgment by the insurance company.
The Comprehensive Automobile Liability Policy covered (A) liability for bodily injury, (B) automobile property damage liability, and (C) property damage liability except automobile. The policy also included a products completed operations endorsement and a products hazard clause. In view of the conclusion we have reached, it is not necessary to analyze these provisions in order to determine the coverage afforded thereby. Liability is predicated upon the happening of an accident with resultant damage. Since it is our conclusion that no accident, as that term is used in the policy, occurred, the extent of coverage under these provisions becomes immaterial. We are...
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...226--227; Midland Const. Co. v. United States Cas. Co. (10 Cir. 1954) 214 F.2d 665, 666--667; Neale Const. Co. v. United States Fidelity & Guaranty Co. (10 Cir. 1952) 199 F.2d 591, 592--593; C. Y. Thomason Co. v. Lumbermens Mutual Casualty Co. (4 Cir. 1950) 183 F.2d 729, 732--733; M. Schnol......
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... ... United States Fidelity & Guaranty Co., 5 Cir. (Ala.), ... 16 Neale Construction Co. v. United States Fidelity & ... 300, 302(1); Corbetta Const. Co. v. Michigan Mutual Liab. Co., 20 A.D.2d ... ...
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Sheets v. Brethren Mut. Ins. Co.
...within the meaning of policies of this kind." City of Aurora, 326 F.2d at 906. For example, in Neale Const. Co. v. United States Fidelity & Guaranty Co., 199 F.2d 591 (10th Cir.1952), the court "The natural and ordinary consequences of a negligent act do not constitute an accident. If one n......
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Fidelity & Deposit of Maryland v. Hartford Cas.
...apply the "natural and probable consequence" test to negligent acts, Hartford points the court to Neale Const. Co. v. United States Fidelity & Guaranty Co., 199 F.2d 591, 593 (10th Cir.1952). In Neale, wire and cable was installed in a faulty manner causing it to have to be repaired. Id. Th......