Appeal from judgment of Court of Common Pleas of Westmoreland County, No. 1061, Jan. T., 1971, in case of Slate Construction Company v. Bituminous Casualty Corporation.
James F. Manley, with him Burns, Manley & Little, for appellant.
William C. Stillwagon, with him Boyle, Nakles, Reeves & Stillwagon, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Jacobs, J.
This case presents two issues involving a liability insurance policy issued to a construction company: whether property being worked upon by a subcontractor,
employed by the construction company with the approval of its employer, was in the care, custody or control of the construction company, which remained ultimately responsible for the work; and whether damage to such property caused by the negligence of an employee of the construction company was damage to work performed by or on behalf of the construction company arising out of the work or out of materials, parts or equipment furnished in connection therewith. The facts are well stated by Judge Mihalich of the lower court in banc:
"The plaintiff [appellee] is an insured under a general liability policy, issued by the defendant insurance company [appellant]. The basic purpose for the general liability insurance policy was to provide coverage to [appellee] in its capacity as general contractor in construction of a road.
"[Appellee] employed . . . L-D Building Company . . . as a subcontractor, to construct certain bridges in this road project.
"During construction of the road and at a time when the subcontractor was in the process of constructing the bridges, [appellee's] employee negligently damaged portions of a bridge. [Appellee] paid the subcontractor for these damages to the bridge and . . . [sued in assumpsit] to recover reimbursement of these payments pursuant to the provisions of [its] general liability policy with [appellant].
"[A] non-jury trial was submitted on a case stated . . . [and] [o]n September 11, 1972, the Trial Court rendered a verdict in favor of the [appellee] in the amount of $9,750.00. . . .
"The [appellant's] defense in the non-jury proceedings and its exceptions to the Court's Verdict and Opinion [were] based on the contention that certain exclusionary provisions of the policy preclude[d] recovery ...