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BLUE ANCHOR OVERALL CO. v. PENNSYLVANIA LUMBERMENS MUTUAL INSURANCE COMPANY (06/25/56)

June 25, 1956

BLUE ANCHOR OVERALL CO.
v.
PENNSYLVANIA LUMBERMENS MUTUAL INSURANCE COMPANY, APPELLANT.



Appeal, No. 161, Jan. T., 1956, from judgment of Court of Common Pleas No. 4 of Philadelphia County, June T., 1954, No. 4994, in case of Blue Anchor Overall Co., Inc., v. Pennsylvania Lumbermens Mutual Insurance Company. Judgment affirmed.

COUNSEL

Joseph Head, Jr., with him Swartz, Compbell & Henry, for appellant.

Burton Caine, with him Nathan Silberstein and Wolf, Block, Schorr & Solis-Cohen, for appellee.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 385 Pa. Page 396]

OPINION BY MR. JUSTICE CHIDSEY

This is an appeal from a final judgment dismissing defendant's exceptions to the finding for plaintiff of the trial judge sitting without a jury and entering judgment for the plaintiff.

Plaintiff, a manufacturer of men's work and sport clothing, brought this action in assumpsit seeking recovery in the sum of $3,983.86 under an insurance policy issued by the defendant for damage to its merchandise resulting from leakage from fire protective equipment. At the time of the loss, plaintiff was insured by the defendant under an 80% "reporting form" policy against loss by fire, which policy also carried standard Extended Coverage Endorsement No. 3, affording protection against loss from leakage from fire protective equipment. The defendant admits that its policy contract covered the risk causing the loss; the amount of plaintiff's damage is also undisputed. At the same time plaintiff was also insured by two fire insurance policies of another company against loss to the same subject matter, one a "specific" policy for $75,000, and the other a 20% "reporting form" policy. Neither of these policies covered the risk of leakage from fire protective equipment.

Defendant first contends that by virtue of the apportionment clause in the extended coverage endorsement No. 3 of its policy, the insurer's liability is limited to $1466.54 which is the proportion of the loss that the amount of its policy bears to the total amount of fire insurance carried by the plaintiff. The clause in question provides as follows: "In the event that the Insured carries other insurance whether concurrent or not, and whether collectible or not, covering in whole or in part the interest(s) in the property involved in the loss covered by this policy, this Company SHALL NOT BE LIABLE under this Endorsement for a greater

[ 385 Pa. Page 397]

    proportion of any loss than ... (2) the amount of this policy bears to the total amount of fire insurance; (3) the amount insured under this Endorsement applying to the peril causing the loss bears to the total amount of insurance against such peril under all fire insurance policies; ...". Defendant's position is that plaintiff's two other fire insurance policies constitute "other insurance" within the meaning of the above quoted clause, even though the loss was not due to fire but was due to sprinkler leakage which was insured against only in the policy issued by defendant company; and that its liability is limited, in accordance with sub-clause 2 quoted above, to the proportion of the loss which the amount of its policy bears to the total amount of fire insurance carried by plaintiff.

It is well established that an insurance policy will be construed most strongly against the insurer who has prepared it: MacDonald v. Metropolitan Life Insurance Co., 304 Pa. 213, 155 A. 491; West v. MacMillan (and Automobile Underwriters Insurance Co., Garnishees), 301 Pa. 344, 152 A. 104. If there is any doubt or ambiguity as to the meaning of the policy, the doubts or ambiguities will be resolved in favor of the insured: Beley v. Pennsylvania Mutual Life Insurance Co., 373 Pa. 231, 95 A.2d 202; Howley v. Scranton Life Insurance Co., 357 Pa. 243, 53 A.2d 613. It is also well settled that if an insurance policy is reasonably susceptible of two interpretations it is to be construed in favor of the insured in order not to defeat, without plain necessity, the claim to indemnity which it was the insured's object to obtain: Armon ...


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