Newfoundland Am. Ins. Co. v. Kamieniecki
Decision Date | 21 February 1963 |
Citation | 104 N.H. 425,188 A.2d 480 |
Parties | NEWFOUNDLAND AMERICAN INSURANCE CO. Ltd. v. Steven KAMIENIECKI and Gertrude Gladstone. |
Court | New Hampshire Supreme Court |
Sweeney & Welts, Robert B. Welts, Nashua, for plaintiff.
Leonard & Leonard, Richard W. Leonard, Nashua, for defendant Kamieniecki.
Morris D. Stein, Nashua, for the defendant Gladstone, furnished no brief.
It is probably an understatement to say that the courts have not been harmonious in applying the care, custody and control exclusion clause in liability insurance policies. 2 Richards, Insurance (5th ed.) s. 301A (1962 supp); Annot. 62 A.L.R.2d 1242. Ramsey, The Care, Custody, Control Exclusion of Liability Insurance Policies, 25 Insurance Counsel J. 288, 294 (1958).
In Sanco Co. v. Employers, etc., Ins. Co., 102 N.H. 253, 154 A.2d 454, it was held that the care, custody and control of the insured included possessory control as well as proprietary control and that damage to an elevator by an insured's employees was within the exclusion clause of the policy. See also, Hardware Mut. Cas. Co. v. Mason-Moore-Tracy, Inc., 194 F.2d 173 (2d Cir., 1952). In the present case it is clear that the contractor had complete control over the removing of the debris from the building which had been destroyed by fire. The crucial question is whether the control of the contractor extended to the walls within the meaning of the exclusion clause of the policy. While the evidence in this case was not extensive on this issue, we think the Court was justified in finding that control of the walls remained in the owner and any work that needed to be done by the contractor in connection with the walls was incidental to his contract job of removing the debris. 7A Appleman, Insurance, s. 4493.4 (1962); Meiser v. Aetna Casualty & Surety Co., 8 Wis.2d 233, 98 N.W.2d 919; Cohen v. Keystone Mut. Casualty Co., 151 Pa.Super. 211, 30 A.2d 203. The...
To continue reading
Request your trial-
Northwestern Nat. Ins. Co. v. Pennington Bros., Inc.
...on a specific item of property into care, custody or control of the building or surrounding area. Newfoundland American Insurance Co. v. Kamieniecki, 104 N.H. 425, 188 A.2d 480 (1963); Boston Insurance Company v. Gable, 352 F.2d 368 (C.A. 5, 'Goswick was at the well to replace the pump. To ......
- Richardson v. Virgin Islands Hous. Auth.
-
Merchants Mut. Ins. Co. v. Transformer Service, Inc.
...damaged is not in the control of the insured within the meaning of such an exclusion clause. Newfoundland etc., Ins. Co. v. Kamieniecki, 104 N.H. 425, 427, 188 A.2d 480, 482 (1963); Mead v. Travelers Ins. Co., 111 N.H. 27, 274 A.2d 792 (1971); see National U. Ins. Co. v. Inland Crude, Inc.,......
-
Mead v. Travelers Ins. Co.
...in the control of the insured at the time, and accordingly no coverage was provided by the policy. In Newfoundland American Ins. Co. v. Kamieniecki, 104 N.H. 425, 188 A.2d 480 (1963), the trial court found that the insured contractor was not exercising control over the wall of a building wh......