Shelby Mut. Ins. Co. of Shelby, Ohio v. Ferber Sheet Metal Works, Inc.

• Decision Date: 08 October 1963
• Docket Number: No. E-184,E-184
• Citation: 156 So.2d 748
• Parties: SHELBY MUTUAL INSURANCE COMPANY OF SHELBY, OHIO, a corporation, Appellant, v. FERBER SHEET METAL WORKS, INC., a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 748

156 So.2d 748

SHELBY MUTUAL INSURANCE COMPANY OF SHELBY, OHIO, a corporation, Appellant, v. FERBER SHEET METAL WORKS, INC., a corporation, Appellee.

No. E-184.

District Court of Appeal of Florida, First District.

Oct. 8, 1963.

Rehearing Denied Oct. 31, 1963.

Howell, Kirby, Montgomery & Sands, Jacksonville, for appellant.

Boyd, Jenerette & Leemis, Jacksonville, for appellee.

STURGIS, Chief Judge.

The appellant, defendant below, seeks reversal of a summary final judgment in favor of appellee, plaintiff below.

Appropriate assignments of error present the following points on appeal which are argued by appellant's brief: (1) That the trial court erred in denying appellant's motion to dismiss the amended complaint on the ground that it failed to state a cause of action. (2) That there existed issues as to material facts precluding entry of the summary final judgment appealed.

The amended complaint charges in substance: That in February 1957 appellee subcontracted with The George D. Auchter Company (a primary contractor) to do certain roofing and waterproofing work on property owned by a church, and by the contract agreed to indemnify the prime contractor against loss on account of any claims or liability arising during the period of five years from completion of the work as a result of deficiencies in such work, which was completed on December 14, 1957. It is alleged that on August 1, 1958 (approximately eight months after the work was completed) the appellant insurance company issued to appellee a policy of insurance for a period of one year insuring appellee 'against liability imposed upon it by contract, products liability, accidents, negligence or warranty,' which policy is attached to and made a part of the complaint; and that on August 1, 1959, and August 1, 1960, appellant issued to appellee identical policies each for a one-year period from date of issue. It is further alleged that on August 2, 1961, the church discovered that its pipe organ was damaged by water from a leack in the roof and called on the prime contractor to pay $750.00 for money expended on repairs to the organ occasioned thereby; that the prime contractor called upon appellee to indemnify it under its subcontract. Appellee paid said sum to the prime contractor and then called on the appellant-insurer to reimburse it in that amount, relying on the terms of the insurance contract, and upon its refusal to do so brought this suit.

Motion of appellant to dismiss the complaint on the ground that it failed to state a cause of action was denied by an order which held that for the purposes of this action the loss described in the complaint is an 'accident' within the intent and meaning of the terms of the policy of insurance. Appellant then filed an answer denying the material allegations of the complaint.

In due course appellant took discovery depositions of Marion L. O'Steen, an employee of appellee who in its behalf supervised the work done on the church pursuant to the contract between appellee and the prime contractor, and of Mr. P. E. Brant, who was the general superintendent and assistant secretary of the appellee corporation.

Mr. O'Steen's deposition reflects that he supervised appellee's work on the church which was completed in the latter part of 1957, and that about eighteen months later he was notified of a leak at about the 20-foot level of the roof, at which time he inspected the roof but did not find anything wrong; that in 1960 or 1961 (he was not sure as to the date) he was again called on to inspect the roof and at that time found a leak at about the 60-foot level in work done by appellee. He testified that this leak was occasioned by the fact that a copper base flashing, installed by appellee around a corner on the retaining wall at a point where a steeply inclined roof came by the retaining wall, had pulled apart at the point where it was turned around the corner; that this flashing was attached to a wooden rafter that was tied into a masonry wall; that the wood and masonry combined to produce an expansion and contraction that was too great for the flashing 'the way it was designed to go around that corner'; that in his opinion the roof developed the leak because of faulty design of the flashing rather than due to the materials and workmanship furnished by appellee, and that the architect on the job was responsible for the design of the flashing. He further testified that he repaired the leak by placing fabric and plastic cement over the flashing so as to overcome some of the expansion and contraciton. Following his deposition, Mr. O'Steen filed an affidavit stating that the appellee did not present any objection to the plans and specifications for the roof.

The deposition of Mr. Brant is to the effect that in his opinion the leak could not have resulted from anything other than a defect in the design of the roof, and that the repairs thereto, as testified to by Mr. O'Steen, had cured the defect.

The architect on the job made an affidavit stating his conclusion that faulty contruction caused the water damage.

Under 'Coverage D' of the insurance policies in suit activated August 1, 1958, and terminating August 1, 1961, the insurer is obligated

'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.'

The policy contains a provision rendering it inapplicable

'(a) to liability assumed by the insured under any contract or agreement except under coverages B and D, (1) a contract as defined herein or (2) as respects the insurance which is afforded for the Products Hazard as defined, a warranty of goods or products.'

It is clear, therefore, that the policies covered a loss of the character involved.

We also note that under item 'D' of the policy provisions governing limits of liability and reflecting the coverage, property damage liability includes 'aggregate operation,' 'aggregate productive,' 'aggregate products,' and 'aggregate contractual.' It is also noted that under Schedule One, item (d) of the policies, bearing the subcaption 'Products (Including Completed Operations),' 'Roofing' is included and the amount of premium is set forth for that coverage. Under the caption 'Conditions' the policy purports to set out the exceptions to the coverage otherwise indicated; and careful examination shows no limitation against the type of loss involved.

On the question of the sufficiency of the complaint to state a cause of action, we conclude that the trial court correctly denied appellant's motion to dismiss. In that order the court held: 'The loss described in the complaint filed herein is construed as an 'accident' within the intent and meaning of the terms of the policy of insurance written by said Defendant [appellant].' Appellant insists that the loss occasioned by the leaking roof is not an accident within the terms of the policy, but the rule of law appears otherwise. The injury to the church organ is directly associated with and a result of the leak in the roof. The event cannot be said to be one that is normally expected, usual, or anticipated, hence it falls within the meaning of...