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NEW DEAL LUMBER & MILLWORK CO. v. AMERICAN MUT. LI

June 8, 1973

NEW DEAL LUMBER AND MILLWORK COMPANY, INC.
v.
AMERICAN MUTUAL LIABILITY INSURANCE COMPANY


Newcomer, District Judge.


The opinion of the court was delivered by: NEWCOMER

Newcomer, District Judge.

 This case is presently before the Court on cross-motions for summary judgment. The parties have agreed to the following relevant facts.

 The plaintiff, New Deal Lumber and Millwork Company, Inc. is a corporation incorporated under the laws of the Commonwealth of Pennsylvania and has its principal place of business in Philadelphia, Pennsylvania. The defendant, American Mutual Liability Insurance Company, is incorporated in the state of Massachusetts and has its principal place of business in Wakefield, Massachusetts.

 On May 4, 1967, Robert Clark, an employee of New Deal Lumber and Millwork Company, Inc., delivered twenty sheets of sheet rock to 959 N. 5th Street in Philadelphia, Pennsylvania. The delivery occurred between 12 and 12:30 p.m., and the twenty sheets of sheet rock were stacked against the north wall of the first floor hallway across from or adjacent to the entrance to the apartment occupied by Reina and Vincent Suren. At 6:30 p.m. on May 4, 1967, while standing in the hallway in front of her apartment door engaging in a conversation with her neighbor, Evelyn Valles, Mrs. Suren was struck by the twenty sheets of sheet rock referred to above. Mrs. Suren suffered personal injuries as a result of the sheet rock striking her. She and her husband filed suit against the plaintiff, New Deal Lumber and Millwork Company, Inc., as defendant in the Court of Common Pleas, February Term 1968, No. 1136.

 Prior to May 4, 1967, defendant issued to plaintiff what was called a "Basic Liability Policy" (the "Policy"), which afforded plaintiff insurance coverage for both automobile liability and general liability.

 More particularly, the Policy provided as follows:

 
"I. COVERAGE C -- BODILY INJURY LIABILITY
 
COVERAGE D -- PROPERTY DAMAGE LIABILITY
 
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
 
COVERAGE C. BODILY INJURY
 
or
 
COVERAGE D. PROPERTY DAMAGE
 
to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, of any automobile, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false, or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or ...

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