Oroville Cordell Fruit Growers, Inc. v. Minneapolis Fire & Marine Ins. Co.

• Decision Date: 03 March 1966
• Docket Number: No. 37781,37781
• Citation: 68 Wn.2d 117,411 P.2d 873
• Court: Washington Supreme Court
• Parties: OROVILLE CORDELL FRUIT GROWERS, INC., a corporation, Respondent, v. MINNEAPOLIS FIRE & MARINE INSURANCE CO., a corporation, and New Hampshire Fire Insurance Co., a corporation, Appellants.

Page 117

68 Wn.2d 117

411 P.2d 873

OROVILLE CORDELL FRUIT GROWERS, INC., a corporation, Respondent, v. MINNEAPOLIS FIRE & MARINE INSURANCE CO., a corporation, and New Hampshire Fire Insurance Co., a corporation, Appellants.

No. 37781.

Supreme Court of Washington, Department 1.

March 3, 1966.

Clarke, Clarke, Albertson & Bovingdon, Seattle, for appellants.

Guttormsen, Scholfield, Willits & Ager, Seattle, for respondent.

HILL, Judge.

Ammonia gas escaped from aluminum tubing in a cold storage room (hereinafter referred to as Room 2) in a warehouse operated by the plaintiff, Oroville Cordell Fruit Growers, Incorporated (hereinafter called Oroville). This caused damage to the 16,608 boxes of apples then in Room 2. There is no question about Oroville being completely compensated for its loss. The controversy is over how that loss is to be apportioned between three insurance companies. Pacific Indemnity Insurance Company (hereinafter called Pacific), which had insured Oroville against loss or damage arising out of any accident, is concededly liable for the entire amount, unless there was an 'explosion' within the purview of the extended coverage provision of the fire insurance policies issued by the defendants, Minneapolis Fire & Marine Insurance Company (hereinafter called Minneapolis) and the New Hampshire Fire Insurance Company (hereinafter called New Hampshire). While there was no fire involved, each of the fire insurance policies also provided protection under the 'Extended Coverage Endorsement' for loss caused by 'explosion.' ¹ If there was an 'explosion,' the extent of the liability of each of the insurance companies was likewise conceded to be: Pacific, $27,449.84 (50%), New Hampshire, $21,959.87 (80% Of 50%), and Minneapolis, $5,489.68 (20% Of 50%).

The question presented is whether the manner of the escape of ammonia gas from the aluminum tubing constituted an explosion within the provisions of the Minneapolis and New Hampshire insurance policies.

Between 8:00 and 8:30, a.m. on the morning of December 28, 1961, the customary check of strage Room 2 revealed no trace of ammonia gas. Between 10:30 and 11:00 a.m. ammonia gas was detected in a room on the floor above Room 2; investigation disclosed that Room 2 was full of ammonia gas of such strength that a gas mask had to be used to enter the room. The supply of ammonia gas was cut off at approximately 11:00 a.m. It took a considerable time, though blowers were employed, to get the fumes out of Room 2; and the investigation as to the point from which the gas had escaped was not made until the following morning when an elongated opening in the aluminum tubing (exhibit No. 1) was discovered.

The pressure of the ammonia gas normally was 20 to 30 pounds per square inch Every four hours there was a defrost cycle, which lasted for a period of 15 minutes, and during this time the ammonia gas surged to pressures of up to 70 pounds per square inch. There had been such a defrost cycle from 10:00 a.m. to 10:15 a.m. on the morning od December 28.

There is no contention that there was any pressure in excess of 70 pounds per square inch in the tubing at the point where the gas escaped; nor is there any contention that this was an unexpected or unusual pressure. (In other parts of the refrigerating system where the pipes were carrying liquid ammonia, before its conversion to gas, the pressures would be 150 to 200 pounds per square inch.)

The aluminum tubing at the place where the ammonia gas escaped was kept completely covered with brine. Aluminum was not ordinarily used for such tubing, because brine has a corrosive effect on aluminum, ² but the installation had been made in 1942 during World War II when more corrosive resistant materials (normally galvanized steel, galvanized cast iron, or admiralty metal ³) were not available. The tubing had been corroded until it was almost tissue thin in places, and none of the tubing was regarded as usable after December 28.

An expert witness testified that even the low pressure had become too strong for the tissue thin pipe and a hairline crack had developed through which the ammonia gas escaped. On contact with the brine, it formed a sodium hydroxide which is commonly called household lye, which is extremely corrosive and especially so to aluminum, and it proceeded over a period of time to eat away the lengthwise split into what is a horizontal or elongated hole * * * as shown in Plaintiff's Exhibit 1.

Asked as to the length of time required to make such a hole as shown in that exhibit, he replied, 'Minutes. Aluminum is attacked very severely by caustic.'

After the parties had rested, the trial court, over the objections of all parties, made one of the experts its own witness for the purpose of determining which, if any, of the definitions of explosion proposed by the parties was applicable to what had transpired in the present case.

The following definitions were rejected by the expert as not being applicable to the circumstances here existing:

A sudden release of energy accompanied by noise, a change in volume, and a going away of materials from the source of the explosion.

A sudden and rapid combustion, causing violent expansion of the air, and accompanied by a report.

Rapid combustion, or other similar process, usually causing a loud report; a sudden and violent outbreak as of physical forces.

A bursting with violence and a loud noise, because of internal pressure, of a sudden bursting or breaking up or in pieces, from an internal or other force.

The definition which the trial court finally held to be applicable came from L. L. Olds Seed Co. v. Commercial Union Assurance Co., Ltd., 179 F.2d 472 (C.A. 7th 1950), and was:

'(A) sudden accidental, violent bursting, breaking, or expansion caused by an internal force or pressure which may be and is usually accompanied by some noise.' (p. 474)

Even this definition had to be tailored a little bit to fit, by omitting the word 'violent.' The expert explained:

I think it fits except where the word 'violent' could be replaced by 'sudden.' I think the only thing lacking in that definition is that this wasn't violent as far as mechanical force is concerned, but it is violent as far as result is concerned in that you are dealing with chemicals, not mechanical forces.

Nevertheless, the trial court made a finding that:

(T)he pipe suddenly and violently ruptured, burst, and was blown open as a result of the internal pressure of the ammonia gas inside splitting the pipe. * * * (Finding No. 6)

And, upon that finding, the trial court based the judgments against New Hampshire ($21,959.87) and Minneapolis ($5,489.68), these being the amounts for which liability was conceded if there was an 'explosion' within the meaning of their policies.

We are convinced that the facts do not support the finding that the aluminum tubing was violently blown open. Even the trial court's own expert would not agree that 'violent' was an appropriate description of what had happened.

The trial court may have been too much influenced by what seems to us the attenuated reasoning of some courts which take the position that though an explosion may vary in intensity--from a hydrogen bomb or an exploding boiler (with the classical explanation: the water was too low and the engineer too high), to the bursting of a matchhead or a cap in a toy cap pistol--it nonetheless meets the criterion of violence in an explosion. Their reasoning is that the insurer against loss caused by 'explosion' should be liable for any loss that occurs in consequence of the escape of the contents of a pipe or other container, regardless of the degree of violence involved, unless falling within specific policy limitations. ⁴

We believe the better rule to be that the true meaning of 'explosion,' in each particular case, must be settled not by any fixed standard, or accurate measurement, but by the common experience and notions of men in matters of that sort. That term in an insurance policy is to be construed in its popular sense, and as understood by ordinary men and not by scientific men. Jersey Insurance Co. of New York v. Heffron, 242 F.2d 136 (C.C. 4th 1957); Commercial Union Fire Insurance Co. of New York v. Bank of Georgia, 197 F.2d 455 (C.C. 5th 1952); Lever Bros. Co. v. Atlas Assurance Co., 161 F.2d 770 (C.C. 7th 1942); Allen v. Insurance Co. of North America, 175 Pa.Super. 281, 104 A.2d 191 (1954); Morie v. New Jersey Mfrs. Indemnity Insurance Co., 48 N.J.Super. 70, 137 A.2d 41 (1957); 10 Couch, Insurance 2d 721, § 42:56 (1962).

Let us assume, as testified by the expert on whom the trial court relied, that a hairline crack was formed in the tissue-thin aluminum tubing by reason of the pressure of the ammonia gas, and that the comparatively large aperture found in exhibit No. 1 was then made by the attack on the pipe by the sodium hydroxide, which was...