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DAVID v. NATIONAL UNION FIRE INSURANCE COMPANY (06/17/65)

decided: June 17, 1965.

DAVID, APPELLANT,
v.
NATIONAL UNION FIRE INSURANCE COMPANY



Appeals from judgments of Court of Common Pleas of Indiana County, June T., 1964, Nos. 12 to 16, inclusive, in cases of Gus David v. National Union Fire Insurance Company; Same v. The Ohio Casualty Insurance Company; Same v. Springfield Insurance Company; Same v. Hartford Fire Insurance Company; and Same v. The Home Insurance Company.

COUNSEL

John S. Fisher, II, with him W. M. Ruddock, and Fisher, Ruddock & Simpson, for appellant.

Stephen W. Graffam, with him Thomas Lewis Jones, and White, Jones and Gregg, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Hoffman, J.

Author: Hoffman

[ 206 Pa. Super. Page 80]

Appellant, Gus David, brought actions in assumpsit against five insurance companies, each of which had issued a fire insurance policy to him. Appellant alleged that his store's fixtures, equipment and merchandise were damaged by smoke emanating from an incinerator which was installed in the building and connected to the building's chimney.

Appellant conceded that none of the five basic fire insurance policies covered smoke damage. He claimed a right to recover, however, under an extended coverage endorsement which was contained in each policy. The pertinent provisions of this extended coverage endorsement were:

"Subject to provisions and stipulations (hereinafter referred to as 'provisions') herein and in the policy to which this Endorsement is attached, including endorsements thereon, the coverage of this policy is extended to include direct loss by Windstorm, Hail, Explosion, Riot, Riot Attending A Strike, Civil Commotion, Aircraft, Vehicles and Smoke.

"Provisions Applicable Only to Smoke: The term 'smoke', as used in this Endorsement means only smoke due to a sudden, unusual and faulty operation of any heating or cooking unit, only when such unit is connected to a chimney by a smoke pipe or by a vent, and while in or on the premises described in this policy, excluding, however, smoke from fireplaces or industrial apparatus." (Emphasis added)

Each of the five insurance companies filed preliminary objections in the nature of a demurrer. The preliminary objections stated, in substance, that each complaint failed to state a cause of action in that it sought recovery for smoke damage due to:

(1) smoke emanating from an incinerator whereas smoke damage, as defined in the policies, was limited

[ 206 Pa. Super. Page 81]

    to smoke resulting from the faulty operation of heating ...


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