Union Elec. Co. v. Pacific Indem. Co.
| Decision Date | 30 November 1967 |
| Docket Number | No. 32658,32658 |
| Citation | 422 S.W.2d 87 |
| Parties | UNION ELECTRIC COMPANY, a Corporation, Plaintiff, Respondent, v. PACIFIC INDEMNITY COMPANY, a Corporation, Defendant, Appellant. |
| Court | Missouri Court of Appeals |
Moser, Marsalek, Carpenter, Cleary & Jaeckel, Paul S. Brown, St. Louis, for defendant-appellant.
Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, for plaintiff-respondent.
This is an action by insured, Union Electric Company, against insurer, Pacific Indemnity Company, to recover under a Manufacturers' and Contractors' Liability Policy a sum paid by Union Electric Company in settlement of an action against it which the insurer had refused to defend on the ground that the policy did not provide coverage for the occurrence and injury that formed the basis of the action settled by the insured, Union Electric Company. From a judgment of $12,554 in favor of insured the insurer appealed. The amount of the judgment does not seem to be contested. The only issue for determination is whether the action settled by the insured is within the coverage of the policy. Hereinafter, we shall refer to Union Electric Company as the insured, Pacific Indemnity Company as the insurer and Davey Tree Expert Company as Davey.
The insured and Davey executed a written contract dated March 18, 1960 which by its terms was effective from March 7, 1960 until March 1, 1961 inclusive. In this contract it was provided that Davey shall cut and trim trees and dispose of all trimmings as required where designated by an authorized representative of the insured along the distribution and transmission lines of the insured located in the City of St. Louis and St. Louis County. The contract provided that Davey shall furnish for that purpose a sufficient number of supervisors, motor cars for the use of said supervisors, also furnish tree trimmer foremen, tree trimmer journeymen, tree trimmer apprentices, and brushcutters to handle such work expeditiously; together with sufficient trucks for the transportation of men and removal of brush; and all equipment, tools, and supplies which may be necessary for the doing of any and all work required to be done by Davey under the terms of the agreement.
Pursuant to said contract Davey was engaged in trimming trees along a 2400 volt overhead distribution circuit of the insured located in an alley in the rear of 5215 Enright Avenue in the City of St. Louis. Three employees of Davey were engaged in the performance of this work at said location. None of insured's employees was present. Among the three was Walter Palmer. Palmer while working in an aerial bucket that was elevated and lowered hydraulically by the movement of levers operated by the person in the bucket and while cleaning tree limbs away from the wires by means of a pruning shear operated by compressed air came into contact with the 2400 volt uninsulated distribution circuit of the insured and as a result Palmer was severely burned and required hospitalization. He was incapacitated for two years.
Palmer filed suit against insured, Union Electric Company, for his injury. His allegations of negligence generally charged the maintenance of uninsulated or inadequately insulated high voltage electrically powered transmission wires and a failure to warn of their presence. Insured called upon insurer to defend the suit brought by Palmer and insurer refused. Thereafter, insured and Palmer agreed to settle said suit for the sum of $30,000 which insured paid. There is no contention by the insurer that this sum was unreasonable. The insured had other insurance with the Aetna Casualty & Surety Company covering its loss on this claim which served to make the insurer herein, if liable, subject to only one-third of the total loss.
Following the settlement the insured herein filed this action against the insurer and against Davey Tree Expert Company and its insurer, the Aetna Casualty & Surety Company. The insured herein effected a settlement with Davey and Aetna and dismissed its action as to them leaving only the insurer herein as defendant. Insured in its petition, after stating the provisions of the contract between it and Davey, alleged that In its answer the insurer admitted that Davey Tree Expert Company alone controlled the work performed by it under said contract and the persons performing such work, but denied that plaintiff supervised, generally or otherwise, such work or the performance thereof. Insurer further alleged in its answer that if plaintiff (insured herein) did 'supervise' any such work of said Davey Tree Expert Company, such was solely related and limited to the result of such work and not as to the method, manner or means for the performance thereof.
The policy in question issued by insurer provides the following coverage:
'INSURING AGREEMENTS'
'1. Coverage A--Bodily Injury Liability
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person, caused by (an) occurrence and arising out of the hazards hereinafter defined.'
'Definition of Hazards'
'Division 3--Independent Contractors
Operations performed for the named insured by independent contractors and general supervision thereof by the named insured, if the occurrence (happens) in the course of such operations.'
'EXCLUSIONS'
'This policy does not apply:
* * *
* * *
(e) under division 3 of the Definition of Hazards, to any act or omission of the named insured or any of his employees, other than general supervision of work performed for the named insured by independent contractors.'
The instant case was tried without a jury and in the course of the trial Lee Crawford testified that he was Line Clearance Supervisor for insured during the month of July 1960 at which time Palmer was injured. He said that he would schedule the work for the tree trimmers and would check their work to see that they were giving the insured the best job at the least possible cost to the insured. He said it was the practice of the insured to enter into contracts with 'tree trimming concerns' to have the branches of the trees near the Union Electric distribution and transmission lines cleared away. The purpose of trimming the tree branches was to keep the lines in operation. Crawford said he deals with the contractor himself or with the contractor's supervisor in effectuating the work of trimming the branches away from the lines. He would show Davey or Davey's supervisor the area plat wherein Davey was to clear away tree limbs from insured's lines. This was in the form of a tree trimming order that was given to Davey attached to an area map that would cover all of the lines in the given area. Pursuant to an order and plat given Davey by Crawford, Davey undertook to clear the branches away from trees in the area where Palmer received his injury. Crawford had various men working for him at the time of Palmer's injury and Davey would advise him where the tree trimmers would be performing work on certain dates. Crawford would receive a route sheet from Davey which would show the location where Davey and his men would be working. Crawford or his men would go to the locations where Davey would be working in order to examine and inspect the work and if there was any deficiency in the qualify or the quantity of the work Crawford would be advised of this by his men, whereupon, he would contact the supervisor of Davey and discuss the matter with him. The discussion would relate to the fact that there was not enough clearance left between the lines or '* * * that men were not working assiduously enough, * * *' so that it would increase insured's contract price. In his cross examination Crawford said that the work of Davey was checked to see that it was properly performed under the contract.
As pointed out heretofore Davey Tree Expert Company was joined as defendant by the insured in the instant action. Before the settlement was effected with Davey by the insured, Davey filed a motion to dismiss Count I of the insured's petition, which count was directed against Davey. In a memorandum filed with the trial court in opposition to the motion of Davey, insured stated, The above excerpt from the memorandum was offered in evidence by the insurer, as an admission against interest made by the insured, for the purpose of showing that the insured admitted that control of the tree trimming work resided completely in Davey and not the insured.
Insurer contends that insured's petition and admission in the memorandum it filed in opposition to the motion of Davey to dismiss insured's petition as to it demonstrates clearly that Davey alone controlled the work being performed under said contract and the persons doing it. We agree that Davey so controlled the work and the persons doing it and by virtue of such control was an independent contractor in the operations performed for insured. We also agree that there is no evidence showing that insured supervised the method, manner or means by which Davey performed the work. In this connection insurer makes its only contention that the absence of such evidence precludes recovery because insured failed to show...
To continue reading
Request your trial
-
Chesapeake & P. Tel. Co. of Md. v. Allegheny Const. Co.
...maps and plats would be supervisory whether done or omitted to be done at or away from the jobsite. See also Union Elec. Co. v. Pacific Indem. Co., 422 S.W.2d 87 (Mo.App. 1967). This Court is of the opinion that when and if faced with the issue, the Pennsylvania courts will follow Missouri'......
-
Enfield Lodging, LLC v. Zurich American Insurance Co.
...Tel. Co. v. Allegheny Constr. Co., 340 F.Supp. 734 (DCMD, 1972), Liberty Mutual Ins. Co. v. Zurich American Ins. Co., supra, and others. Union Electric was a coverage suit which followed negligence suit brought by a tree trimmer who was severely injured after coming in contact with electric......
-
Hawkins v. City of Fayette
...and affairs of the city" (italics added) does not extend to detailed supervision. See the case of Union Electric Co. v. Pacific Indemnity Co., 422 S.W.2d 87, et seq. (Mo.App. 1967), where, although involving a construction of the term "general supervision" in an insurance policy, it was hel......
-
Western Casualty & Surety Co. v. Southwestern Bell Tel. Co.
...v. New Amsterdam Cas. Co., supra; Campbell v. American Farmers Mut. Ins. Co., 238 F.2d 284 (8th Cir. 1956); Union Electric Co. v. Pacific Indem. Co., 422 S.W.2d 87 (Mo.App.1967). The district court's opinion here as to meaning of the term "general supervision" is strengthened by the recent ......