arising from completed operations and occurring away from the premises applies to 'products hazard' and does not relate to negligence arising from the failure to warn of a defect that is not related in any way to the sale of a product.
Attached to plaintiffs' motion for summary judgment is an affidavit by one of the plaintiffs, Anthony J. Gehrlein, setting forth that the defendant refused to provide a defense to the Heid claim, and letters to this effect are attached; further, that the defendant was furnished with copies of the pleadings in the Heid case and was aware of the nature and basis of this action, and that plaintiffs were compelled to engage counsel and incurred costs for attorney fees and expenses in the amount of $ 4,520,20, which has been paid. No counter-affidavit or answer denying the averments of the Gehrlein affidavit have been filed, and the Court understands that these facts with regard to the costs and attorney fees are likewise admitted for the purpose of deciding the instant issue.
Counsel for the defendant has forcefully argued the position taken by the American Employers Insurance Company, the defendant in this case. He has filed extensive and detailed briefs. They have been carefully examined. He indicated recently that a New Jersey State Court decision, Inductotherm Corp. v. N.J. Mfrs. Cas. Ins. Co., 83 N.J.Super. 464, 200 A.2d 358 (1964), was favorable to the view taken by the defendant. I must disagree. It seems to me as I read the decision that it favors plaintiffs' theory in the instant case. The policy is one like that described in Ocean Accident & Guarantee Corp. v. Aconomy Erectors, 7 Cir., 224 F.2d 242. It is most complex. It consists of several pages of a form some of which has been filled in on a typewriter. It has supplements and riders. It is difficult to interpret and harmonize the meanings to be found in the various paragraphs. The uncertainties found in the policy are to be construed against the company that prepared the policy, which is the defendant in this case.
On reconsideration of defendant's motion, it is believed that that part of the motion relating to the individual plaintiffs should be granted. It seems to this Court that judgment in favor of the corporation and against the defendant will dispose of the litigation. The Court understands that the corporation is still in existence and that no proceedings in merger, sale or dissolution have been filed.
Under the factual situation presented in this case and the law applicable thereto, it is this Court's opinion that there is no genuine issue as to any material fact and that plaintiff corporation is entitled to judgment together with interest from the date of finality of the Common Pleas Court judgment and together with the reasonable attorneys' fees and costs expended. It is so ordered.
Counsel for the plaintiffs will in due course present an order for judgment.
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