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CAMPAGNIE DES BAUXITIES DE GUINEE v. INSURANCE CO.

January 13, 1983

COMPAGNIE DES BAUXITES DE GUINEE, a corporation, Plaintiff,
v.
INSURANCE COMPANY OF NORTH AMERICA, Defendant



The opinion of the court was delivered by: SIMMONS

I.

 Plaintiff CBG has moved for the entry of partial summary judgment, contending that there are no issues as to material fact and that the Plaintiff CBG is entitled to partial summary judgment as a matter of law. Defendant Insurance Company of North America ("INA") denies that there is coverage under the contract of insurance on the grounds that the accident involving Bucket Wheel No. 3 occurred as the result of a mechanical breakdown, which is thereby excluded under the terms and conditions of the contract of insurance. The contract of insurance involved herein insures the Plaintiff CBG against all loss resulting directly from the necessary interruption of business caused by damage to or destruction of real or personal property; but the policy does not insure against mechanical breakdown, among other things.

 Plaintiff CBG's initial motion for summary judgment was based on the contention that as a matter of law the policy language excluding a mechanical breakdown was not applicable since the failure of the boom of Bucket Wheel No. 3 was the failure of a structural member, and a structural member cannot be subject to a mechanical breakdown. Both parties submitted briefs and affidavits, and argument on the motion was heard June 30, 1982. At that time the Court granted Plaintiff leave to file an amendment to the motion for partial summary judgment and permitted Defendant to file a response to the motion, as amended. Plaintiff's amendment to the motion reads as follows:

 
10. On the basis of these undisputed facts, it is clear as a matter of law that the "Mechanical Breakdown" exclusion provision (Paragraph 2(a) of the policy) cannot apply in this case for the following reasons:
 
(a) The loss claimed by the Plaintiff resulted directly from damage to personal property, namely, Bucket Wheel No. 3, sustained on March 26, 1974, including but not limited to the following particulars: the boom of Bucket Wheel No. 3 sustained a catastrophic collapse; a section of the boom buckled and was destroyed; the heavy tubular boom support posts and the cross member of the trestle of the front and back tie-rods were bowed and deformed; the connections of the front tie-rod on the boom head and on the trestle were warped and deformed; portions of the conveyor belt systems were destroyed; and electrical cables, hydraulic and central lubrication pipework, grating and railing were destroyed in the area where the boom had collapsed. Thus, and loss is covered by Paragraph 1 of the policy and the "Mechanical Breakdown" exclusion provision (paragraph 2(a) of the policy) need not be considered in this case.

 The essential issue presented by this motion for partial summary judgment, as amended, centers on this Court's interpretation as a matter of law of the meaning of the enumerated exclusions to the contract of insurance, and we therefore need not address the factual issue of whether the failure of the boom of Bucket Wheel No. 3 was a mechanical breakdown, or the failure of a structural member.

 II.

 An exception or exclusion to a policy of insurance is an affirmative defense, and the burden of proving that the exclusion is applicable is on the insurer. Daburlos v. Commercial Insurance Co., 521 F.2d 18, 24 (3d Cir. 1975); Myrtil v. Hartford Fire Insurance Co., 510 F. Supp. 1198 (E.D. Pa. 1981); Weiss v. CNA, 468 F. Supp. 1291 (W.D. Pa. 1979); Kravitz v. Equitable Life Assurance Society of United States, 453 F. Supp. 381 (E.D. Pa. 1978).

 The relevant provisions of the contract of insurance read as follows:

 
BUSINESS INTERRUPTION FORM
 
1. This policy insures against: loss resulting directly from necessary interruption of business caused by damage to or destruction of real or personal property, except finished stock, by the (perils) insured against, during the term of this policy, on premises occupied by the insured and situated as herein described.
 
2. This policy does not insure against:
 
(a) Mechanical Breakdown, unless other accident covered hereunder ensues, and then this policy shall ...

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