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RAYBESTOS-MANHATTAN v. INDUSTRIAL RISK INSURERS (08/14/81)

filed: August 14, 1981.

RAYBESTOS-MANHATTAN, INC.,
v.
INDUSTRIAL RISK INSURERS, APPELLANT



No. 1758 Philadelphia, 1980, Appeal from Judgment entered in the Court of Common Pleas, Civil Division, of Lancaster County, No. 147 May Term. 1979.

COUNSEL

Miles A. Jellinek, Philadelphia, for appellant.

Christopher S. Underhill, Lancaster, for appellee.

Price, Wieand and Hoffman, JJ.

Author: Wieand

[ 289 Pa. Super. Page 480]

In this appeal, we are asked to interpret the exclusion clause contained in an all risk policy of insurance.

On June 5, 1978, a tank truck owned by Matlack, Inc. and carrying No. 2 fuel oil arrived at the premises of appellee,

[ 289 Pa. Super. Page 481]

Raybestos-Manhattan, Inc., in Manheim, Lancaster County. Appellee's purchasing department, acting under the mistaken assumption that the truck was carrying heptane, directed the truck to Department P-30 and informed the foreman that a heptane truck was on the way. The foreman was unavailable to direct the truck and review the bill of lading. Therefore, he sent a substitute to show the driver where to empty the contents of the truck. The substitute foreman instructed the driver to empty the contents of the tank truck into appellee's twenty thousand gallon, underground, heptane tank. Thus, because of the driver's unfamiliarity with appellee's storage facilities and the substitute foreman's mistaken belief that the truck was carrying heptane, an entire load of No. 2 fuel oil was emptied into appellee's heptane tank. From there, the fuel oil, now mixed with heptane, was fed into an auxiliary heptane tank used for production purposes. There it inflicted serious damage to work in progress.

The foregoing facts were stipulated by the parties. The trial court found that coverage existed under the terms of the all risk policy issued by appellant, Industrial Risk Insurers. After reducing appellee's damages by the $10,000 deductible feature of the policy, the court caused judgment to be entered in appellee's favor for $24,857. This appeal followed.

The policy of all risk coverage issued by the appellant insurer provided coverage "against all risks of direct physical loss or damage from any external cause to the insured property, except as hereinafter excluded." (Emphasis added.)

The exclusion clause provided: "This policy does not insure against loss caused by or resulting from . . . 3. dampness or dryness of atmosphere, extremes or changes of temperature, shrinkage, evaporation, loss of weight, leakage of contents, marring, scratching, exposure to light, contamination, change in flavor or color or texture or finish; unless such loss is caused directly by physical damage to the property ...


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