Appeal from judgment of Court of Common Pleas of Lawrence County, Dec. T., 1964, No. 16, in case of Thomas Masters, trading as New Castle Construction Company, v. Celina Mutual Insurance Company.
Maurice Levinson, for appellant.
Glenn McCracken, Jr., with him Braham & Mitsos, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J.
[ 209 Pa. Super. Page 112]
In an action of assumpsit appellant-plaintiff sought to recover on a manufacturer's and contractor's liability policy of insurance an amount of money for
[ 209 Pa. Super. Page 113]
which he had become liable by reason of the total destruction of a derrick which he had contracted to move for a third party at a stone quarry. The derrick fell and was totally destroyed when the cable on plaintiff's crane snapped during the movement. Judgment on the pleadings having been entered for the defendant this appeal by plaintiff followed.
The policy issued by appellee-defendant insured the plaintiff in coverage B against property damage liability "caused by accident and arising out of the hazards hereinafter defined." The initial definition of hazard includes, inter alia, "The ownership, maintenance or use of premises, and all operations." However, under "Exclusions", paragraph (1), it is provided that the policy does not apply to the injury to or destruction of "(3) . . . property in the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control. . . ."
The lower court held that this clause excluded from the policy any liability to pay for the damage to the derrick, because it was "property in the care, custody or control of the insured" at the time it was demolished. This interpretation of the contract is supported by International Derrick & Equipment Company v. Henry R. Buxbaum and Coal Operations and Casualty Company, 240 F. 2d 536 (3d Cir. 1957).
The foregoing interpretation of exclusion (1) is not seriously questioned by the plaintiff. The thrust of his argument is that exclusion (1) has been modified by other provisions of the policy, particularly by exclusion (n) and the reference to it in part two of the policy. Exclusion (n) reads as follows:
"This policy does not apply:" to
"(n) under coverage B, with respect to division 1 of the Definition of Hazards, to injury to or destruction of any ...