shall, within twenty-four (24) hours of the date of notice given, make the necessary repairs.'
Obviously, as of October 18, 1957, or February 1, 1958 (the accident date), it was impossible to tell whether any of these obligations would become operative. The operation itself was completed.
If anything was to be done, or in fact was done thereafter, it was in the nature of repair or maintenance. And the parties by their insurance contract specifically excluded such activities from coverage. Condition 3(f)(2) provides in part:
'* * * provided, operations shall not be deemed incomplete because improperly or defectively performed or because further operations may be required pursuant to an agreement.'
The rights and obligations that exist as between plaintiffs and defendant are to be determined by their contract. If, for example, the insurance contract had provided that an operation is 'completed' when the insured removes his equipment from the site, the removal would be determinative, even though the insured's contract with the City imposed a continuing obligation to repair. So here, even though there may be such a continuing obligation as to the City, the insurance contract effectively eliminated this as a factor preventing completion. The work was in fact completed within the meaning of the exclusionary clause.
Plaintiffs further argue that the proof fails to show that the accident happened 'away from premises owned, rented or controlled by the named insured' (Condition 3(f)(2)). The City contract provided:
'Party of the second part shall have charge and control of the entire work until completion and acceptance of the same by party of the first part. * * *'
Plaintiffs point out that they were not paid for the work until March 11, 1958, and that payment is the usual method by which a contractor is notified of acceptance. From this, plaintiffs argue that they were in control of the work at least until that date.
To my way of thinking, there are two answers to plaintiffs' argument. First, the work had been accepted internally. That is, by October 27, 1957, the governmental subdivisions involved had, by that date, agreed that the work had been satisfactorily completed. The policy does not say that the acceptance must be communicated; indeed, it does not even refer to 'acceptance'. Second, after the trench had been filled and repaved, and opened to vehicular traffic, it would be factually unrealistic to say that plaintiffs controlled the 'premises'. Control of the work is something different from control of the premises, and while, as between the City and plaintiffs, the latter may still have had control of the work almost four months after its completion, they did not control the premises. If more work was required or was, in fact, done, as happened in July, 1959, plaintiffs, during its pendency, might be said to be in control of that area where the work was actually being done. Absent that, however, they were no longer in control of a highway over which the traveling public moved. Again, an example may be helpful: suppose that in July, 1958 (an arbitrary date), with no work in progress or contemplated, plaintiffs had erected barricades across both lanes of the Roosevelt Boulevard. Their supposed 'control' would have had short shrift when traffic began to back up. There is no doubt in my mind that the accident happened away from premises controlled by plaintiffs.
CONCLUSIONS OF LAW
1. The Court has jurisdiction over the parties.
2. The Court has jurisdiction over the subject matter.
3. Defendant is not liable to insure plaintiffs against liability for the accident of February 1, 1958.
4. Defendant is entitled to judgment in its favor against plaintiffs.