Opies Milk Haulers, Inc. v. Twin City Fire Ins. Co.
| Decision Date | 07 June 1988 |
| Docket Number | No. WD,WD |
| Parties | OPIES MILK HAULERS, INC., Plaintiff-Respondent, v. TWIN CITY FIRE INSURANCE COMPANY, Defendant-Appellant. 39670. |
| Court | Missouri Court of Appeals |
Mark A. Ludwig, Carson, Coil, Riley, McMillin, Levine & Veit, Jefferson City, for defendant-appellant.
Hamp Ford, Knight, Ford, Wright, Atwill, Parshall & Baker, Columbia, for plaintiff-respondent.
Before MANFORD, P.J., and TURNAGE and COVINGTON, JJ.
Before MANFORD, P.J., TURNAGE and COVINGTON, JJ.
Opies Milk Haulers, Inc. filed suit against Twin City Fire Insurance Company on an insurance policy. The court submitted the case to a jury and entered judgment on the verdict in favor of Opies. Twin City contends there is no coverage because of a policy exclusion. Reversed and remanded.
Opies was engaged in the business of operating tankers which carried bulk liquid food products. Each tanker had a capacity of 6250 gallons. In August of 1981 a tanker returned to the Opies facility in Eldon, Missouri after having hauled liquid egg whites. Following the usual procedure, the inside of the tanker was cleaned. Later, the tanker was dispatched to Iowa to haul a load of liquid fructose to Columbia and Sedalia for the Hubinger Company.
The fructose was loaded in Iowa and was hauled to Columbia and Sedalia. After the fructose had been unloaded at both locations, complaint was made that samples of the fructose showed the presence of a foreign substance. Opies unloaded the fructose from the holding tanks into which it had been pumped in Sedalia and Columbia and returned it to Hubinger in Iowa. Tests later determined that the liquid egg whites had not been completely removed from the tanker and that this had contaminated the fructose.
Opies had obtained an insurance policy issued by Twin City from the Naught-Naught Insurance Agency. The policy consisted of cargo coverage and comprehensive general liability coverage. The cargo coverage insured against specified losses which did not include contamination of cargo. The parties agreed that cargo coverage does not apply to the loss here.
The general liability coverage contained coverage for completed operations. The liability coverage contained a provision excluding property damage to property in the care, custody and control of the insured or as to which the insured is for any purpose exercising physical control.
The theory of Opies at trial was that the loss sustained by reason of contamination of the fructose was covered by the completed operations provision and the exclusion as to care, custody or control did not apply. Opies contended that the completed operations coverage applied to the cleaning of the inside of the tanker and that the cleaning had been completed but the residue of egg whites remained, which caused the damage.
Over the objection of Twin City the court submitted the cause to a jury. Over objection, the court admitted evidence by various witnesses as to their opinion of whether or not the loss was within the liability coverage and whether or not the exclusion relating to care, custody or control applied. Opies called the regional claims manager of Twin City, who testified that even if the completed operation coverage applied to the cleaning of the tanker, the care, custody or control exclusion applied so that coverage was not available. Opies also called witnesses who expressed opinion that the care, custody or control exclusion did not apply and that the loss was covered by the completed operations coverage.
The court allowed the insurance policy to be passed to the jury with the completed operations and the care, custody or control provisions highlighted.
The court gave a verdict director on behalf of Opies that allowed the jury to find for Opies if Twin City issued its policy insuring liability for property damage arising out of completed operations and if the syrup (fructose) was damaged as a result of completed operations. An instruction on behalf of Twin City authorized a verdict in its favor if the jury found that the syrup was in the care, custody or control of Opies at the time of occurrence.
Opies also joined the Naught-Naught agency as a defendant, but the jury returned a verdict in favor of the agency, and no appeal has been taken from that judgment.
The jury returned a verdict in favor of Opies and against Twin City in the amount of $13,922.62 on the policy, $6,474.02 for interest, $1,542.26 for vexatious refusal to pay, and $7,312.96 for attorney fees, for a total award of $29,251.86.
Twin City first contends the court erred in submitting the case to the jury. Insurance policies are contracts and the rules applicable to the construction of contracts are applicable to insurance policies. Central Surety & Insurance Corporation v. New Amsterdam Casualty Co., 359 Mo. 430, 222 S.W.2d 76, 78 (1949). In Busch & Latta Painting Corporation v. State Highway Commission of Missouri, 597 S.W.2d 189, 197 (Mo.App.1980), this court quoted from Commerce Trust Company v. Howard, 429 S.W.2d 702, 705-06 (Mo.1968), which in turn quoted National Corporation v. Allan, 280...
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