Rydman v. Martinolich Shipbuilding Corp.
| Decision Date | 10 April 1975 |
| Docket Number | No. 1213--II,1213--II |
| Citation | 13 Wn.App. 150,534 P.2d 62 |
| Parties | , 1975 A.M.C. 1005 Richard RYDMAN et al., Appellants, v. MARTINOLICH SHIPBUILDING CORPORATION, a corporation, et al., Respondents. |
| Court | Washington Court of Appeals |
Moriarty, Long, Mikkelborg & Broz, Douglas M. Fryer, White Sutherland, Parks & Heath, Nathan J. Heath, Alex Parks, Portland, Or., for appellants.
Detels, Draper & Marinkovich, Martin P. Detels, Jr., Seattle, for respondents.
This is an appeal from a summary judgment dismissing appellant Rydman's cause of action against a builder's risk insurer. The primary issue presented is whether the insurer was liable under its policy for the loss of Rydman's vessel.
On September 15, 1970, Martinolich Shipbuilding Corporation (Martinolich) contracted to build a fishing vessel for Richard Rydman, a commercial fisherman, for $180,000. The contract provided that Martinolich would 'at all times during the construction of this vessel and up to the time of delivery thereof, maintain standard marine builder's risk insurance in the amount of $180,000, . . .' with both Martinolich and Rydman as assureds. Accordingly, Martinolich purchased such a policy, covering a period from October 12, 1970 to February 12, 1971 (later extended to March 12, 1971), or until delivery, if delivered at an earlier date. The policy provided in relevant part:
This Policy insures against all risk of physical loss of or damage to the subject matter hereby insured, except as hereinafter provided.
In the event that faulty design of any part or parts should cause loss of or damage to the subject matter insured, this insurance shall not cover the cost or expense of repairing, replacing or renewing such part or parts, nor any expenditure incurred by reason of betterment or alteration in design.
This Policy insures only, during the period aforesaid, while the subject matter hereby insured is at (ashore or afloat) the building location hereinbefore named; while in transit within the port of construction to and from such location; while on trial trips (including proceeding to and returning from the trial course) loaded or otherwise, as often as required, within a distance by water of 100 nautical miles of the port of construction or held covered as hereinafter provided.
The vessel was delivered to Rydman on January 22, 1971. It subsequently sank, allegedly due to defects in design and construction. It is conceded that the accident occurred more than 100 nautical miles from the location of construction and after delivery to Rydman. At the time of the accident, Rydman had a policy of hull and machinery insurance on the vessel in the amount of $180,000. 1 The hull insurers paid him $180,000 and were thereby subrogated to his rights.
Rydman and the hull insurers brought an action against Martinolich and the builder's risk insurers. Against Marinolich they sought recovery of the value of the vessel and equipment on the date it sank, and lost profits. The sixth cause of action sought from the builder's risk insurers recovery of the policy amount, $180,000. Upon motion for summary judgment, the trial court dismissed the cause of action against the builder's risk insurers, pursuant to CR 54. A notice of appeal in Rydman's name was filed. On appeal, respondents contend that Rydman was not a real party in interest or aggrieved party and therefore the appeal should be dismissed. In response and prior to oral argument, a motion was made to amend the notice of appeal to include the hull and machinery insurers.
We grant the motion to amend the notice of appeal. The record indicates that the names of the hull and machinery insurers were inadvertently omitted from the notice; at the time of filing the notice local counsel was not aware of co-counsel's filing of a second amended complaint, naming the insurers--whose names were included in the titles of all briefs. Pursuant to Court of Appeals Rules on Appeal and the Civil Rules for Superior Court, we will disregard the technical inaccuracy, grant the motion to amend, and decide the case on the merits. See CR 17(a); CR 21; CR 60; CAROA 63.
Rydman contends that the builder's risk policy covers the loss of his vessel. He argues that the policy insures not only losses occurring during the policy period, but also losses occurring after the policy period when the operative cause of the loss, here allegedly defective construction, occurred during the policy period.
In resolving the issue whether this policy...
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