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LEEBOV v. UNITED STATES FIDELITY AND GUARANTY COMPANY (11/15/60)

November 15, 1960

LEEBOV
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY, APPELLANT



Appeals, Nos. 159 and 160, March T., 1960, from judgments of Court of Common Pleas of Allegheny County, April T., 1955, No. 704, in case of Mike Leebov v. United States Fidelity and Guaranty Company. Judgments affirmed.

COUNSEL

Arthur G. Stein, with him Daniel B. Winters, and Stein and Winters, for appellant.

Abraham Pervin, with him Sachs, Pervin, Kaufman & Menzer, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Musmanno

[ 401 Pa. Page 478]

OPINION BY MR. JUSTICE MUSMANNO

In 1940, Mike Leebov, the plaintiff in this case, went into the building construction business and purchased from the United States Fidelity and Guaranty Company, the defendant, a contractor's liability policy which was renewed from year to year. The paragraph of the policy which is of principal concern in this lawsuit reads as follows: "[The defendant insurance company agrees] to pay on behalf of the Insured all

[ 401 Pa. Page 479]

    sums which the Insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined."

In 1948, a landslide occurred during the course of the plaintiff's operations, and the defendant insurance company paid claims resulting therefrom.

In 1950, while the policy was in full force and effect, the premiums having been paid regularly, the plaintiff was subjected to other losses because of another landslide. This time the defendant company refused to indemnify the plaintiff, arguing that the insurance policy did not cover landslides. As the result of this second mishap the plaintiff had to pay out the amount of $1700 as the result of a lawsuit brought by a damaged property owner and the amount of $13,047.57 for expenses incurred in arresting the landslide and preventing other serious damage. He brought suit against the defendant insurance company and obtained verdicts in the sums of $1700 and $13,047.57, plus interest. The defendant appealed, seeking judgment n.o.v., and, in the alternative, a new trial.

The defendant company argues that the amounts paid out by the plaintiff were not the result of tort liability but contractual responsibility which is not embraced within the provisions of the policy.

The facts are that on November 16, 1950, while the plaintiff was engaged in excavating along a hillside preparatory to erecting a one-story warehouse on Fifth Avenue in Pittsburgh, a break occurred in the bank to the rear of the property. The land began to slide, and the porch of one of the houses atop the hill collapsed. The ...


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