plaintiff herein manufactured substantially the entire tramway system. Accordingly, to my mind, plaintiff's substantial participation in the manufacture of the entire tramway system rendered plaintiff subject to the Section (h)(4) "product" exclusion with respect to the completed product.
Moreover, plaintiff not only manufactured numerous components of the tramway system but also constructed the system from its components and installed the system on the premises of the owner. Section (h)(4) of plaintiff's General Liability Comprehensive Policy states a broader exclusion than appears in the case of Pittsburgh Plate Glass Co., supra, and precludes coverage of the insured for property damage to "work completed" by the insured as well as "products" manufactured by it. Thus, even if plaintiff's participation in the manufacture of most components of the tramway system did not bring the entire tramway system within the "product" exclusion, plaintiff's construction and installation of the entire tramway system came within the "work completed" exclusion.
Factually, the case before me is more akin to that of Home Indemnity Company v. Miller, 399 F.2d 78 (8th Cir. 1968), cited by defendant, wherein the "product" and "work completed" exclusions were held applicable to an entire home constructed by the named insured and the outside walls of which began to crack as a result of the insured's improper placement of footings and improper installation of the roof.
Accordingly, the Court finds that plaintiff's liabilities incurred for damage resulting to the cable components and entire tramway system were excluded from the coverage of its General Comprehensive Liability Policy by the Section (h)(4) exclusion.
The remaining question is whether the complaint filed by Fort Brannaum, Inc., and the third party complaint filed by Colorado Fuel & Iron Corporation against the named insured in the suit instituted in the United States District Court for the Eastern District of Kentucky, which pleadings are Exhibits 9 and 10 respectively in this Court, alleged facts which, if proved, would have supported a recovery covered by the policy and would have required the defendant-insurer herein to defend the former action. Pittsburgh Plate Glass Co. v. Fidelity & Cas. Co. of N.Y., supra, 281 F.2d at 541.
A perusal of the Exhibits indicates that neither the facts alleged in the aforementioned pleadings nor the facts contained in the letter of Mr. Walker and which apprised defendant of the nature of the defects in the tramway system would have supported a claim by plaintiff against defendant within the coverage of the Comprehensive General Liability Policy. The pleadings in the former action, if proved, would have established that plaintiff manufactured, constructed and erected an entire tramway system, a work product of the plaintiff, which the clear and unambiguous language of Section (h)(4) excluded from policy coverage.
An appropriate Order is entered in accordance with the foregoing Opinion, which shall constitute my findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
NOW, this 21st day of April, 1970, upon a non-jury trial of this civil action, it is hereby ORDERED that judgment be and the same is hereby entered in favor of defendant and against plaintiff.
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