New Amsterdam Casualty Company v. Homans-Kohler, Inc.
| Decision Date | 23 September 1969 |
| Docket Number | Civ. A. No. 3577. |
| Citation | 305 F. Supp. 1017 |
| Parties | NEW AMSTERDAM CASUALTY COMPANY, Plaintiff, v. HOMANS-KOHLER, INC., J. J. O'Rourke d/b/a J. J. O'Rourke Electric Co., Air-Lite Products, Inc. and Howard W. Holmes, Milton E. Nelson and Harold Bateson, Co-Partners d/b/a Charles A. Maguire & Associates, Defendants. |
| Court | U.S. District Court — District of Rhode Island |
Allan M. Shine, of Winograd, Winograd & Marcus, Providence, R. I., for plaintiff.
John T. Keenan, of Keenan, Rice & Dolan, Providence, R. I., for Homans-Kohler, Inc.
Andrew H. Davis, of Swan, Keeney & Jenckes, Providence, R. I., for J. J. O'Rourke.
Richard T. Linn, of Gunning & LaFazia, Providence, R. I., for Air-Lite Products, Inc.
Charles J. McGovern, of Coffey, Ward, McGovern & Novogroski, Providence, R. I., for Howard W. Holmes, Milton E. Nelson and Harold Bateson, Co-Partners, d/b/a Maguire & Associates.
In this action the plaintiff as subrogee of the Gilbane Building Co. and the Industrial National Bank of Rhode Island seeks to recover from the defendants certain sums it alleges it paid to its subrogors as the insureds under a certain policy of fire insurance it had issued to them. In its amended complaint it alleges in substance that on November 23, 1962, at a site known as the Industrial National Bank Hardened Computer Center in Glocester, Rhode Island, a fire and explosion occurred which substantially damaged property then belonging severally to said Gilbane Building Co. and said Industrial National Bank; that at the time of said fire and explosion, there was in effect a policy of fire insurance issued by the plaintiff to Gilbane Building Co. and the Industrial National Bank insuring their property and interests in the structure being erected at said location in the amount of $843,000; that pursuant to the terms of said policy plaintiff paid the sum of $307,653.32 to Gilbane Building Co. and the sum of $10,500 to Industrial National Bank in satisfaction of its liabilities to them under said policy, and that it is subrogated to their rights to the extent of the sums so paid.
It further alleges in said complaint that said fire was the direct and proximate result of the negligence of the defendants or some or all of them and that at all times said Gilbane Building Co. exercised due and reasonable care, and seeks judgment against the defendants or some of them in the sum of $318,153.32 plus interest and costs.
This matter is now before me upon motions for summary judgment in their favor filed by the defendants, Air-Lite Products, Inc., Homans-Kohler, Inc. and J. J. O'Rourke d/b/a J. J. O'Rourke Electric Co. In each of said motions the movant contends that the plaintiff has no enforceable rights against each of them as a subrogee of the rights of Gilbane Building Co. and Industrial National Bank of Rhode Island because the movant was a subcontractor under said Gilbane Building Co. in the construction of said hardened computer center, and as such, was an insured under said policy of fire insurance issued by the plaintiff.
In opposition to the motion of Air-Lite Products, Inc., plaintiff contends that in fact Air-Lite Products, Inc. was not a subcontractor of Gilbane Building Co. and in support of this contention has filed an affidavit by Thomas Battles, Vice-President of Gilbane Building Co., wherein he deposes that Air-Lite Products, Inc. was not a subcontractor of Gilbane Building Co. in the construction of said hardened computer center. No counter affidavit has been filed by Air-Lite Products, Inc. Under the circumstances, its motion for summary judgment in its favor must be and is denied.
Plaintiff concedes, as it must, that the defendants Homans-Kohler, Inc. and J. J. O'Rourke d/b/a J. J. O'Rourke Electric Co. were subcontractors on said construction project. There is no factual question as to their status which would make the entry of a summary judgment improper. See, e. g., United States v. White Motor Company, 1961, D.C.Ohio, 194 F. Supp. 562, reversed in part 1963, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738; Pan American Food Company, Inc. v. Lester Lawrence & Son, Inc., 1956, D.C. Ill., 147 F.Supp. 113.
In support of their respective motions the movants have filed copies of the pertinent provisions of the specifications for the construction of said hardened computer center relating to fire insurance coverage during its construction, copies...
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...belonged to him or to some other insured party." Id. at 1214 (first alteration in original) (quoting New Amsterdam Cas. Co. v. Homans-Kohler, Inc. , 305 F. Supp. 1017, 1020 (D.R.I. 1969) ). The court pointed to several policy considerations as support for its decision, including reduction o......
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