decided as amended september 24 1979.: August 22, 1979.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before Adams, Rosenn and Higginbotham, Circuit Judges.
In this diversity case, a trucking company sued its insurance carrier to recover for damage to equipment it was transporting. The damage occurred when the equipment slid off the flatbed of a truck as a result of an incline in the road. The district court concluded that the damage was not within the risks covered by plaintiff's insurance policy because the damage resulted from insufficient lashing of the equipment rather than from an "overturn" within the meaning of the applicable clause in the policy.*fn1 The district court also interpreted an overturn to require that the wheels of the conveyance leave the surface of the road. We affirm solely on the causation ground.
On December 6, 1974, Hardinger Transfer Co. ("Hardinger"), through its employee William Schaal, Jr., was hauling an electric transformer and an engine block from Codan Corporation to the General Electric plant in Erie, Pennsylvania on a flatbed trailer. Both items were secured to the trailer with chains, one chain being used to fasten the engine block and several to secure the transformer. The transformer, a top-heavy piece of equipment, weighed 36,000 pounds, and the engine block weighed approximately 12,000 pounds. As the driver of the Hardinger truck applied the brakes in order to stop for a traffic light, he could "feel" the engine block slipping off the trailer. The road sloped approximately 10o to the right and the weight of the engine block as it slid off the truck caused a further tilting to the right of the flatbed on its suspension system. The transformer, its chains having broken, then fell from the trailer and was damaged.
The case was tried under Pennsylvania law, and neither party questions the applicability of that law to this controversy. The district court, sitting without a jury, made the following findings: that General Electric's request for the electric transformer came late in the day and delivery "was a rather hurry-up job"; that the flatbed "was covered with snow and probably ice"; that the engine block was held by only one chain, "there being no other chains available"; that the movement of the engine block precipitated the movement of the transformer; that there was no evidence that the wheels of the trailer left the surface of the roadway; and that there was no loss of equilibrium of the vehicle. The court found that the cause of damage was the "insufficient lashing of the two pieces of equipment on the flatbed trailer." This finding, regardless of the definition of an overturn, was sufficient to deny recovery by Hardinger.
Although there is no Pennsylvania case construing an overturn clause, the district court in its opinion expressed the view, derived from a case in another jurisdiction,*fn2 that recovery premised on an overturn of the conveyance requires that the wheels actually leave the surface of the roadway.
In view of the district court's finding on causation, which is amply supported by the evidence, it is unnecessary for us to rule on the district court's interpretation of Pennsylvania law on the overturn clause. We are all the more reluctant to do so because any conclusion we would make would be only a prediction of how a Pennsylvania court would rule on what is an issue of first impression within that jurisdiction.*fn3
The judgment of the district court will be affirmed insofar as it denies recovery from Fireman's Insurance Company because the accident was by the ...