Standard Acc. Ins. Co. v. Roberts, 12240.
| Decision Date | 31 December 1942 |
| Docket Number | No. 12240.,12240. |
| Citation | 132 F.2d 794 |
| Parties | STANDARD ACC. INS. CO. v. ROBERTS et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Cecil R. Warner, of Fort Smith, Ark. (E. N. Moseman, of Detroit, Mich., and Harry P. Warner, of Fort Smith, Ark., on the brief), for appellant.
David S. Partain, of Van Buren, Ark. (R. A. Young, Jr., of Fort Smith, Ark., J. E. Yates, of Ozark, Ark., and Theron Agee, of Van Buren, Ark., on the brief), for appellees.
Before STONE, SANBORN and RIDDICK, Circuit Judges.
The Standard Accident Insurance Company issued its liability policy to Herbert Roberts. Thereafter, personal injury judgments were secured against Roberts by Clyde, Pearl, George Willie and Forest Wayne Primm. Thereafter, the Standard filed this action against Roberts and the Primms to obtain a declaratory judgment that it was not liable to them on the above policy. The trial court found that the cause of the injuries to the Primms was not within the coverage of the policy but determined that the Standard, "with full knowledge of the date, place and circumstances of the injuries" had assumed and retained control of the investigation and defense of the damage suit under such circumstances that it was estopped from denying liability thereon to the detriment and prejudice of Roberts. This is an appeal by the Standard from the judgment dismissing its petition.
Appellant presents three points: (1) that there was no liability under the policy and liability cannot be extended by estoppel; (2) that no estoppel was proven; (3) that insured was not prejudiced by the acts and conduct of Standard.
Appellees contest the above points and, in addition, urge: (1) that the policy should have been reformed to express the intention of the parties thereto; (2) that the court should have allowed reasonable attorney fees and the statutory penalty; (3) that the policy covered the accident causing the injuries to the Primms. Appellant urges that none of these three additional matters presented by appellees is open here because appellees took no cross-appeal. In this situation as to contentions of the parties, it is necessary to determine just what contentions are examinable here.
Since appellees' contentions as to reformation of the policy and as to allowance of attorney fees and penalty seek to change or to add to the relief accorded by the judgment which was in their favor, they can raise here such issues only by a cross-appeal. Le Tulle v. Scofield, 308 U.S. 415, 421, 422, 60 S.Ct. 313, 84 L.Ed. 355; Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191, 57 S.Ct. 325, 81 L. Ed. 593; United States v. American Railway Express Co., 265 U.S. 425, 435, 44 S. Ct. 560, 68 L.Ed. 1087. On the other hand, the contention that the policy covered the accident seeks only to sustain the judgment for a reason presented at the trial and determined adversely to appellees. The recovery is upon the policy; and it is no more than a change of reason for such recovery, whether it be under the terms of the policy or because of an estoppel to question the applicability of the terms. In such situations the rule is that "a respondent or an appellee may urge any matter appearing in the record in support of a judgment". Le Tulle v. Scofield, 308 U.S. 415, 421, 60 S.Ct. 313, 316, 84 L.Ed. 355. Also, McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 434, 60 S.Ct. 670, 84 L.Ed. 849; Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191, 57 S.Ct. 325, 81 L.Ed. 593; United States v. American Ry. Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087. Therefore, appellees may, in support of the decree, urge here this ground that the policy covers the accident.
Taking the above contention of appellees and those of appellant, the issues before us are as follows: (1) Does the policy cover this accident; (2) if it does not, is estoppel allowable here; (3) if the policy does not cover and estoppel can be applied, is the finding of estoppel supported by the evidence?1
This is a matter of construction of the pertinent terms of the policy and application thereof to the fact situation as to the accident.
It is well to state the essential facts as to the accident in order to understand the contentions of the parties as to the meaning of the policy. The business of Roberts was the sale and installation of furniture and fixtures. His place of business was Fort Smith, Arkansas. He sold Clyde Primm a gas operated refrigerator and installed it in Primm's residence in the town of Ozark, Arkansas. The installation was completed by coupling up the refrigerator to the gas pipes in the house. During the night following the day of such installation, Primm, his wife and children were injured by gas escaping from these refrigerator connections. Shortly afterward, suit was brought for such injuries and recovery resulted.
Appellant contends the policy covered only occurrences upon the business premises of Roberts in Fort Smith and occurrences happening during but not after installation elsewhere. Therefore, since this accident happened at Ozark and after the installation of the refrigerator had been completed, there was no coverage under the policy terms. Appellees contend that the policy covered results from improper installation, including improper inspection to make sure the installation was safe. Since this accident happened after the installation had been completed and the refrigerator as installed turned over for use by Primm, it is clear that there is no liability if the coverage is only for occurrences during the course of installation; while there is liability if the coverage extends to results of completed installation (including inspection).
The policy consists of a printed form of "Manufacturers' or Contractors' Liability Policy" with insertions applicable to this insured. The form included a statement that: "The insurance afforded is only with respect to such and so many of the following Coverages and divisions thereunder as are indicated by specific premium charge or charges." This was followed by a table of coverage which included, separately, bodily and property damage. The pertinent portions of that table, with insertions in this policy, are as follows:
"Limits of Liability
Each Each Advance
Coverages Division Hazards Person Accident Aggregate Premium
-------------------------------------------------------------------------------
A. Bodily 1. Premises-Operations $5,000. $10,000. xxxx $12.50
Injury 2. Elevators $xxxxx $xxxxx xxxx $nil
Liability 3. Independent Contractors $xxxxx $xxxxx xxxx $nil
4. Products or Completed
operations $xxxxx $xxxxx xxxx $nil
5. Contractual $xxxxx $xxxxx xxxx $nil"
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This table is followed by another designed to contain information, separately, as to each of the above five "Divisions" in the first table. As to all except Division 1, the inserted notation is "not covered". As to Division 1 there is the following:
"Rates PREMIUMS
Premium Coverage Coverage Coverage Coverage
Description Code Bases A B A B
--------------------------------------------------------------------------------------------------
1. Premises-Operations. Location
of premises by street and number
town and state; and classifications
of operations. 5146 8000. .14 12.50 Nil
113 No. 10th St. Fort Smith, Ark. Min
Furniture and Fixtures Installation
In Offices and Stores — NOC
— portable metal or wood
Salesmen, Collectors & Messengers —
Outside 2450 3000. .02
Clerical Office Employees
NOC 2450 1000. .02"2
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From the above, it is clear that the only coverage was such as would come within the classification The pertinent portion of "Definition of Hazards" as to Division 1 is as follows:
Under a heading "Exclusions" is the statement that "This policy does not apply * * * (e) under divisions 1 and 3 of the Definition of Hazards, to: (1) liability with respect to which insurance is or can be afforded under division 4 of the Definition of Hazards;". "Division 4 of the Definition of Hazards" referred to in the just preceding quotation is as follows:
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