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CASPER v. AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY. (09/25/62)

September 25, 1962

CASPER, APPELLANT,
v.
AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY.



Appeal, No. 179, Jan. T., 1962, from judgment of Court of Common Pleas No. 3 of Philadelphia County, March T., 1961, No. 763, in case of Jacob Casper, trading as Jack Casper Company v. American Guarantee and Liability Insurance Co. Judgment affirmed.

COUNSEL

Samuel I. Sacks, with him Lee B. Sacks, for appellant.

Louis S. Cali, with him Cogan and Turner, for appellee.

Before Bell, C.j., Jones, Cohen, Eagen and O'brien, JJ.

Author: O'brien

[ 408 Pa. Page 427]

OPINION BY MR. JUSTICE O'BRIEN

Appellant is a brickwork contractor who, as a subcontractor, participated in certain remodeling of the ground floor and basement of a building in Philadelphia. The second floor of the building was occupied by a clothing merchant, Engel, Inc., which continued its operations during the remodeling. Engel brought suit in trespass against the prime contractor and the subcontractors involved in the remodeling, including appellant, alleging negligent damage to its premises and goods.

During the period when appellant was on the remodeling job, he was insured by appellee under a comprehensive general liability policy. Upon being sued by Engel, appellant forwarded the complaint to appellee, which denied coverage and refused to defend. Appellant engaged counsel and the matter came to trial, resulting, after 3 1/2 weeks of trial, in a jury disagreement. Subsequently, the parties compromised their differences and appellant paid to Engel, as his share of the settlement, $600. To recover this sum, as well as $7,500 in legal fees for defense of Engel's action against

[ 408 Pa. Page 428]

    him, appellant sued appellee in assumpsit, alleging a breach by appellee of its duty to defend the action brought by Engel against appellant.

Appellee filed an answer and new matter which, in essence, denied any duty to defend, inasmuch as the Engel claim was allegedly without the coverage of the policy. Appellant's reply to new matter denied that the claim was beyond the purview of the policy and appellee moved for judgment on the pleadings. The court below granted judgment on the pleadings in favor of appellee and that judgment is the subject of the instant appeal.

The insurance policy which forms the basis of this litigation, contains the following relevant provisions: "1. ... Coverage B - Property Damage Liability - To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including loss of use thereof, caused by accident." (Emphasis supplied).

"II. Defense, Settlement, Supplementary Payments - With respect to such insurance as is afforded by this policy, the company shall: (a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if ...


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