Appeal from judgment of Court of Common Pleas of Erie County, Feb. T., 1968, No. 17, in case of McCreary Roofing Company, Inc. v. The Northern Insurance Company of New York.
Bernard F. Quinn, with him Quinn, Plate, Gent, Buseck & Leemhuis, for appellant.
Wallace J. Knox, with him Knox, Graham, Pearson, McLaughlin and Sennett, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Concurring Opinion by Montgomery, J. Hoffman and Spaulding, JJ., join in this concurring opinion. Dissenting Opinion by Jacobs, J.
[ 218 Pa. Super. Page 194]
Concurring Opinion by Montgomery, J.:
This case involves the construction and application of a contractor's liability insurance policy containing an Exclusion h(3) clause, excluding coverage for damage or injury "to 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 policy was issued by The Northern Insurance Company, Inc., appellant. Both parties entered motions for summary judgment on essentially undisputed facts. I concur in the affirmance of the order of the lower court, which entered summary judgment for the appellee.
The insured, McCreary, was the subcontractor engaged by the general contractor to install the roofing material on a steel deck forming the roof of a new building in Erie, Pennsylvania. In preparing to do
[ 218 Pa. Super. Page 195]
this work, the insured transported its material over the steel deck structure and severely damaged it. McCreary admitted that the damage was caused by the negligence of its employes in transporting heavy materials without taking proper precautions to protect the decking from the weight of the cart loaded with roofing materials. McCreary notified Northern that a claim was being made for the damage to McCreary by the owners and Erie Steel Erection Company, but Northern refused coverage, ...