U.S. Fire Ins. Co. v. Beach
| Decision Date | 06 March 1973 |
| Docket Number | No. 12037,12037 |
| Citation | 275 So.2d 473 |
| Parties | UNITED STATES FIRE INSURANCE COMPANY, Plaintiff-Appellant, v. Donald BEACH, dba Beach Steel Erectors, et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Sessions, Fishman, Rosenson, Snellings & Boisfontaine by Robert E. Winn, New Orleans, for plaintiff-appellant .
Theus, Grisham, Davis & Leigh by Charles H. Heck, Monroe, for defendants-appellees.
Before AYRES, HEARD and HALL, JJ.
United States Fire Insurance Company (USFIC) paid a claim of $54,269.28 for fire loss on a policy covering a building under construction and brought this action against Donald Beach d/b/a Beach Steel Erectors and Beach and Company (Beach), a subcontractor on the job, John Talley Davis, Beach's employee, and Bituminous Casualty Company, Beach's liability insurer, alleging that the fire was caused by the negligence of Beach and his employee Davis, and that defendants were liable to USFIC as subrogee of the insureds.
Defendants answered with a general denial and asserted the defenses that Davis was a borrowed servant of Breck Construction Company, the general contractor, at the time of the fire and that defendants were co-insureds under the policy; consequently, subrogation could not be asserted against them.
Subsequently, defendants filed a motion for summary judgment based on the same defenses in their answer, namely: (1) that Davis, whose alleged negligence caused the fire, was an employee pro hac vice of Breck, plaintiff's assured, and Beach was therefore not responsible for his actions, and (2) defendants as subcontractors of Breck were, in effect, co-insureds and therefore plaintiff had no right of action against them under the holding in Louisiana Fire Insurance Company v. Royal Indemnity Company, 38 So.2d 807 (La.App.2d Cir. 1949). The trial court, finding it unnecessary to determine whether or not Davis wa a borrowed servant, sustained the motion on the ground that the defendants were co-insureds and plaintiff had no cause of action. Plaintiff appealed.
The material facts are not in dispute. Breck Construction Company was the prime contractor for construction of a Ramada Inn motel complex in Monroe, Louisiana. USFIC issued a special multi-peril policy with SMP Builders' Risk Completed Value Form attached. The named insureds on the policy were the individual owners d/b/a Ramada Inn, Breck, and Monroe Land Corporation. Beach was the steel erecting subcontractor for the project. During the course of construction, on February 19, 1968, a fire damaged one of the partially completed buildings. Payment for the loss was made to the named insureds.
The principal question before us is whether defendants were insureds, and that determination must be made from the provisions of the Builders' Risk coverage which states in part:
'This policy also covers temporary structures, materials, equipment and supplies of all kinds incident to the construction of said buildings or structures and, when not otherwise covered by insurance, builders' machinery, tools and equipment owned by the insured or similar property of others for not exceeding the amount for which the insured is liable; all while in or on the described buildings, structures or temporary structures, or in the open (including within vehicles) on the described premises or within 100 feet thereof.'
In Louisiana Fire, supra, this court interpreted a builders' risk provision stating:
'This policy also covers items of labor, materials, equipment, supplies, forms and temporary structures of all kinds to be used in the construction of said building, and (when not otherwise...
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