loss which Eastern sustained in the year following the fire which is the main subject of contention in this case.
(A) The motion.
Defendants have filed a motion for judgment NOV or for New Trial with the grounds for the latter not stated with any degree of particularity.
It will be noted that the reasons given for a new trial are the grounds stated in defendant's motion for directed verdict and all other grounds that may be revealed after a study of the record.
We will, of course, consider the motion for judgment NOV but point out we cannot grant a judgment for the defendant in view of the fact that liability in the amount of $ 287,277, while subject to some denials at trial, was generally admitted and is specifically admitted in defendant's brief filed in conjunction with these motions. We will, however, consider plaintiff's right to recovery in general to amounts over $ 287,277.
With respect to the motion for new trial, under Rule 7(b) it is provided that the motion shall be in writing and shall state with particularity the grounds therefor. It has been held that these requirements are mandatory. U. S. v. 64.88 Acres of Land, 25 F.R.D. 88 (3d Cir. 1960). The court has, however, examined the grounds stated in the brief for granting a new trial and finds them to be without merit. We do find, however, that an item of damage which cannot legally be claimed by the plaintiff under this record has crept into the case and requires the court to order that the judgment be reduced.
(B) Motion for Judgment NOV.
As previously noted we are unable to grant a complete judgment NOV for the defendants because there is presently no contest with respect to the item of $ 287,277. We will however consider the other matters raised therein. These matters generally were previously considered by the court in defendant's motion for summary judgment which was decided adversely against them in a memorandum opinion filed October 18, 1977 and the court adheres to what was said therein. As is noted, this case is really not a controversy over liability but rather a controversy over the amount of plaintiff's damages and it was held this amount had to be determined by the jury.
We have previously noted that the law requires the policy to be construed most strongly against the insurers. Nusbaum v. Hartford Fire Ins. Co., 285 Pa. 332, 132 A. 177 (1926); Philadelphia Mfrs. Insurance Co. v. Rose, 368 Pa. 363, 81 A.2d 566 (1951) and Sehon Stevenson & Co. v. Buckeye Ins. Co., 298 F. Supp. 1168 (S.D.W.Va.1969). The laws of both West Virginia and Pennsylvania appear to be in accord on this. It was pointed out that the general rule as laid down by the courts is that business interruption insurance policies are intended to return the insured the amount of profit which it would have earned had the destruction by fire or other casualty not intervened. It is also true, of course, that expenses derived from events not related to the fire or other casualty are not covered. See opinion of Snyder, D. J. of this court, in PPG Industries v. Appalachian Ins. Co., Civil Action No. 77-90, opinion filed March 26, 1979. On the other hand, the courts have given a broad interpretation to coverage under business interruption. The policy commenced, in Paragraph 3(b), to state that it insures against loss of earnings as defined herein resulting from damage to or destruction of property of the insured during the terms of this policy. Specifically with respect to business interruption it says it shall be the ACTUAL LOSS SUSTAINED by the assured directly resulting from interruption of business but not exceeding reduction in earnings. It is further noted that in the last paragraph of the business interruption clause it is stated, "Expenses Incurred to Reduce Loss: any and all expense incurred by the assured to reduce loss hereunder is covered by this insurance to the extent only of the loss which would have been sustained had such expense not been incurred.
The courts generally have held that losses of the type under consideration here are covered by such business interruption clause. It is obvious from the testimony here that the fire at the Joanne Mine was one of the risks covered and that the business of the plaintiff was completely interrupted for over a year, the maximum period covered by the policy.
The court quoted to the jury the general rule as laid down in National Union Fire Insurance Co. v. Anderson Pritchard Oil Corp., 141 F.2d 443 (10th Cir. 1944) where the court said:
"In other words, the policy is designed to do for the insured in the event of business interruption caused by fire, just what the business itself would have done if no interruption had occurred . . . no more."
In Fidelity Phoenix Fire Insurance Co. v. Benedict Coal Corp., 64 F.2d 347 (CCA4th 1933), it was held that loss of profits on rental of miners' houses in operation of a commissary were properly considered where the head house tipple and conveyor belt of the mine were destroyed by fire.
Also, in General Ins. Co. v. Pathfinder Petroleum Co., 145 F.2d 368 (CCA9th 1944), it was held that loss from a plant yet to be built could be recovered and profit flowing from a contracted capital investment were included in business interruption insurance coverage.
The Pennsylvania courts have specifically held that expenses incurred by virtue of a contract as a result of a fire must be included. This case, which is very close to ours, is Supermarkets Operating Co. v. Arkwright Mutual Ins. Co., 257 F. Supp. 273 (E.D.Pa.1966). The case involved an express covenant to pay rent notwithstanding destruction of the building by fire and that this obligation to continue to pay rent should be considered as an expense continuing after the fire and covered by business interruption.
It should also be noted that while generally the construction of an insurance policy is for the court, nevertheless, where there are words similar to those involved in this policy, the matter should be left to the jury. Nusbaum v. Hartford Fire Ins. Co., supra, where the court said:
"As to the contention that plaintiff's loss of profits was caused by the increased cost of production and the decrease in selling price and not by fire, it is sufficient to say that the argument made in support of it has not convinced us that this question was not properly left by the court to the jury."