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COMPAGNIE DES BAUXITES DE GUINEE v. INSURANCE CO.

November 10, 1982

COMPAGNIE Des BAUXITES De GUINEE, Plaintiff
v.
INSURANCE COMPANY OF NORTH AMERICA, Defendant



The opinion of the court was delivered by: SIMMONS

 This action involving Plaintiff CBG's claim under a contract of insurance for a business interruption loss sustained and caused by a train collision in Guinea, West Africa, was tried before a jury. After the Court's charge, special interrogatories were submitted to the jury, and the jury's answers to said interrogatories are attached hereto as Exhibit "A". The Court directed a verdict in the amount of $72,273, as to one aspect of Plaintiff's damage claim, and the jury, after lengthy deliberations, found in favor of Plaintiff as to interrogatories one and two and in favor of Defendant INA as to interrogatory three which included other elements of Plaintiff's damage claim. (See Exhibit "A" attached hereto). During the course of the trial, this Court made several rulings on the record concerning points of law, and in order to set forth and explain the reasons underlying these rulings, the Court now issues this supplemental opinion.

 I.

 Plaintiff CBG requested that this Court charge the jury that the Plaintiff was entitled to recover all of its business interruption losses proximately resulting from the train collision.

 Specifically, Plaintiff CBG proposed the following jury instruction:

 
This does not mean that the law recognizes only one proximate cause of an item of loss. On the contrary, many factors or things may operate at the same time, either independently or together, to cause an item of loss and in such a case, each would be a proximate cause.
 
The law provides for the situation when concurring or multiple causes of a loss appear, some of which may be covered by an insurance policy and others of which may not be. In such a situation, the insurance company will be responsible for the total amount of the loss if an insured cause is a "proximate" cause of the loss. Accordingly, if you find that the plaintiff suffered an interruption of business caused by damage to or destruction of real or personal property, then the plaintiff is entitled to recover its total loss which was a proximate result of the interruption of business caused by the damage to or destruction of the real or personal property, regardless of the possibility that other causes may have contributed to the total loss.

 The Court rejected Plaintiff's theory of causation and instructed the jury that any interruption of business at any relevant time which occurred as the result of anything other than the damage to or destruction of real or personal property caused by the train collision was not a recoverable loss under the contract and should not be considered in computing the actual loss sustained, if any, as a result of the July 17, 1974 train collision. The Court reiterated to the jury that the interruption of business must result directly from the damage to or destruction of the locomotives and ore cars involved in the train collision. The Court further instructed the jury that no damages could be recovered for an interruption of business caused by the lack of trained and qualified locomotive operators. These instructions were in total accord with the language of the contract of insurance which explicitly states that the loss must result directly from the necessary interruption of business caused by damage to or destruction of real or personal property. It is also clear that the destruction of human life is certainly not a "destruction of real or personal property ". Since the words "directly resulting from" are the plain and unambiguous expression of the agreement of the parties to the contract of insurance, it is not proper for this Court to construe the language "directly resulting from" to be other than what it says. See, e.g., Turner v. National Life and Accident Insurance Co., 372 F. Supp. 1228 (E.D. Pa. 1974), aff'd 510 F.2d 971 (3d Cir. 1975).

 Plaintiff CBG previously argued that this Court should instruct the jury on proximate causation in accordance with the language utilized by Judge Knox in Eastern Associated Coal Corp. v. Aetna Casualty & Surety Co., 475 F. Supp. 586 (W.D. Pa. 1979), aff'd in part and rev'd in part, 632 F.2d 1068 (3d Cir. 1980). However, on appeal, the United States Court of Appeals for the Third Circuit did not address that portion of Judge Knox's charge pertaining to causation, hence we are not bound by that particular language.

 Special interrogatory 2 (See Exhibit "A" attached), to the jury read: "Did CBG experience a loss in production sometime during the period between July 17, 1974 and November 17, 1974, which was directly caused by the July 17, 1974 train collision?" The jury answered this question in the affirmative, thus finding in favor of the Plaintiff CBG as to the issue of causation. Under these circumstances, Plaintiff certainly cannot rationally claim reversible error as to this portion of the Court's charge since the jury found completely in Plaintiff's favor as to the question of causation, because Plaintiff proved to the satisfaction of the jury (See answer to interrogatory 2 on Exhibit "A") that Plaintiff's damages (as computed on Plaintiff's Exhibit 102 and which was admitted in evidence) flowed directly from one and only one cause, namely, the loss of use of certain ore railroad cars that were destroyed and/or damaged in the aforementioned train collision. The Plaintiff's proof submitted in this subject case supported one and only one theory of loss.

 At trial, Plaintiff's computation of loss was based solely on the lost capacity of the ore cars. See Plaintiff's Exhibit 102, "Computation of Loss", which set out in complete detail the Plaintiff's theory and computation of its claimed loss. This was the only theory of recovery advanced by Plaintiff CBG throughout trial which was supported by competent evidence, and as we have previously pointed out, the jury found in Plaintiff's favor as to their only theory of lost production. Plaintiff's calculation of damage was based on the amount of tonnage that could not be trammed as a result of the decreased number of ore cars available after the train collision, and, there was simply no evidence in the record which would have supported Plaintiff's requested charge on concurring causation. The charge of this Court adequately covered the one and only theory of relief presented to the jury by the Plaintiff, and the jury found in the Plaintiff's favor on the issue of causation. Under these circumstances, the plaintiff certainly has no cause to complain.

 Moreover, since insurance is a matter of contract, the parties to a policy of insurance are free to agree to any conditions which are reasonable as long as they are not contrary to public policy. Thus the parties may by agreement contract as to choice of law provision, statutes of limitation which are less than those granted by substantive law, and the quantum of proof necessary for recovery under the terms and conditions of the policy of insurance. See, e.g., 13 Pa. C.S.A. § 1105(a) (Under UCC parties may agree as to the applicable law); Marshall v. Aetna Casualty and Surety Co., 643 F.2d 151 (3d Cir. 1981) (Contractual provision limiting time for suit on insurance contract is valid even if shorter than time provided by otherwise applicable statute of limitations); Fratto v. New Amsterdam Casualty Co., 252 A.2d 606, 434 Pa. 136 (1969) (Insurer may properly include in contract of insurance provisions setting time limits on commencement of suits). See also 19 P.L.E. Insurance § 418.

 In this case, the parties unambiguously stated that the loss must result directly from the necessary interruption of business caused by damage to or destruction of real or personal property, and the Court instructed the jury in accordance with the expressed intent of the parties. It is well established that the language of an unambiguous policy of insurance cannot be construed to mean other than what it says. St. Paul Fire & Marine Insurance Co. v. U.S. Fire Insurance Co., 655 F.2d 521 (3d Cir. 1981); Daburlos v. Commercial Insurance Co., 521 F.2d 18 (3d Cir. 1975); Brezan v. Prudential Insurance Co. of America, 507 F. Supp. 962 (E.D. Pa. 1981); Turner v. National Life & Accident Insurance Co., 372 F. Supp. 1228 (E.D. Pa. 1974), aff'd 510 F.2d 971 (3d Cir. 1975). It is not for this Court to give the contract of insurance a construction in conflict with the plain meaning of the unequivocal language contained therein. See 18 P.L.E. Insurance § 91 ...


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