Travelers Indem. Co. v. Whalley Const. Co., Inc.

• Decision Date: 23 September 1981
• Docket Number: No. 62395,62395
• Citation: 287 S.E.2d 226,160 Ga.App. 438
• Parties: TRAVELERS INDEMNITY COMPANY v. WHALLEY CONSTRUCTION COMPANY, INC.
• Court: Georgia Court of Appeals

Page 226

287 S.E.2d 226

160 Ga.App. 438

TRAVELERS INDEMNITY COMPANY v. WHALLEY CONSTRUCTION COMPANY, INC.

No. 62395.

Court of Appeals of Georgia.

Sept. 23, 1981.

Rehearing Denied Nov. 20, 1981.

Certiorari Denied Jan. 20, 1982.

Stanley Karsman, Dana F. Braun, Savannah, for appellant.

John M. Tatum, Savannah, for appellee.

McMURRAY, Presiding Judge.

Georgia Infirmary Non-Profit Housing Corporation, as the owner, and Whalley Construction Company, Inc., as the general contractor, were parties to a contract for the construction of certain apartments in Savannah, Georgia. Whalley subcontracted the concrete work to Horn Construction Company, which leased a mobile crane from Sims Crane Service, Inc. During construction the boom on the crane, owned by Sims and being operated at the time by the subcontractor Horn, collapsed and damaged the building under construction.

The Travelers Indemnity Company (Travelers) had in effect at the time of this incident two insurance policies with its named insured, Georgia Infirmary Non-Profit Housing Corporation. Policy No. 650-536E724-3-IND-78, known as an apartment owner's property liability policy, insured against direct loss or damage by certain perils including, "7. VEHICLES OR AIRCRAFT." It did not insure "[a]ny vehicle or machine licensed for use on [a] public thoroughfare." Under the definitions contained in this policy for vehicles or aircraft the perils insured against were defined as "only direct loss by actual physical contact between ... vehicles and the insured property or buildings containing the insured property," and adding that this peril does not include loss "by any vehicle owned or operated by the Insured or any tenant of the premises, including their employees." Special provisions of this policy provided for additional insureds as follows: "THE GENERAL CONTRACTOR, OTHER CONTRACTORS, AND SUB-CONTRACTORS, AS THEIR INTEREST MAY APPEAR." This language also appeared in a certificate addressed to the Secretary, U. S. Department of Housing and Urban Development, Washington, D. C., his or her successors or assigns, as their interest may appear.

The second insurance policy (No. M-536E703-4-78 H) known as a scheduled property policy, insured against perils for "[d]irect physical loss of or damage to all real or personal property owned by the Insured, improvements and betterments to the extent of the Insured's interest therein, and personal property of others for which the Insured is legally liable, all while located on the ... premises." It excluded as not covered, "[v]ehicles designed for highway use, animals, aircraft, watercraft" among its other items of exclusion. This policy included the above named insured, as well as the same additional insureds shown above. Perils excluded in this policy were loss or damage caused by or resulting from "vehicles."

Following the incident in question which is alleged to have occurred on March 30, 1979, the plaintiffs Whalley Construction Company, Inc. (the general contractor) and Georgia Infirmary Non-Profit Housing Corporation (the owner) filed this action against the defendant Travelers alleging the policies were in full force and effect, said policies being attached to the complaint seeking damages for the loss to the building in the amount of $30,000 as insured against by either or both of the aforesaid policies. The complaint further alleged that the 50-ton crane which was equipped with a counterbalance and outriggers so as to render it immobile had buckled during construction with a load of concrete and had crashed into the property. It further alleged that the defendant had unequivocally, after demand, failed and refused to pay such loss after all conditions contained in said policies for payment had been met by the plaintiffs or waived by the defendant.

The defendant answered, in general, admitting jurisdiction and the contents of the two policies as shown above, but otherwise denied the complaint, contending that there was no coverage provided under either policy by reason of the fact that the damages complained of were caused by a vehicle owned and operated by an insured. Another defense in the answer was that policy No. M-536E703-4-78 H did not insure against loss or damage caused by vehicles.

After discovery both the plaintiffs and the defendant filed motions for summary judgment. On February 25, 1981, the superior court granted plaintiffs' motion for summary judgment against defendant and denied defendant's motion for summary judgment. The court found as a matter of fact that the 50-ton mobile crane was a vehicle and that the boom had collapsed damaging plaintiffs' building which was under construction. The court then held that under one policy plaintiffs were insured against direct loss or damage by vehicles, while the other policy had excluded as a peril, loss or damage caused by or resulting from "vehicles," citing as authority that the mobile crane was a vehicle, Clinton v. Nat. Indem. Co., 153 Ga.App. 491, 492(1), 265 S.E.2d 841, and this court's use therein of Black's Law Dictionary's...