*1 background the criminal case justified
defendant, trial court type of the worst as one
treating appellant imposing the maximum
of offenders
sentence.
AFFIRMED. J.,
BURKE, participating. INDUSTRIES, INC.,
DRESSER
Appellant, AND LAUNCH TUG COMPANY
FOSS V. d/b/a Arness
and James
Terminal, Appellees.
No. 2396. of Alaska.
Supreme Court 25, 1977.
Feb. *2 Arness,
trаcted with James V. the predeces- Tug Company Launch and sor of Foss (Foss) doing and James V. business Terminals, storage for the Arness ground barite in a Magcobar’s bulk former ship belonging ship to Arness. The Liberty Nikiski, beached at Alas- permanently was storage agreement Paragraph ka. coverage provided: concerned insurance and pro- shall be for MAGCOBAR coverage own insurance on viding its in ground Storage barite stored Ves- sel. agreement, to the
Pursuant risk insurance. When it suc- obtained all interest, Magcobar’s Dresser also ceeded on coverage all risk the barite. maintained February was it discovered that containing of the hold the barite the deck collapsed. Part of the barite was lost hаd sea, damaged was and remainder alleged losses Dresser actual moisture. Jacobus, Thorsness, Hughes, P. Kenneth $86,250.00 profits in and lost the amount Brundin, Anchorage, Gantz, for Powell & $86,445.00. poli- Under the terms of its appellant. Ameri- Company Insurance North cy, the Wiles, Eastaugh, Delaney, (I.N.A.) required pay was Dresser Robert L. ca Moore, Reitman, Inc., Anchorage, $5,000.00 $81,250.00; Hayes & the first of the loss Tug Co. Launch & appellee Foss Dresser as a deductible. was borne pro in per.
James
subrogated
Representing itself
I.N.A., Dressеr filed an action
interest of
BOOCHEVER,
J., and
C.
RABIN-
Before
(defendants)
against Foss and Arness
BURKE,
OWITZ, CONNOR,
and
ERWIN
the total loss. The
was
complaint
recover
JJ.
negligence.1
several counts of
based on
answers,
relied on
separate
defendants
OPINION
defense,
5 as an affirmative
as-
paragraph
policy
been
serting that Dresser’s
had
BOOCHEVER, Chief Justice.
par-
for the mutual benefit of the
obtained
summary judgment
in-
appeal from
This
ties.2
interpretation
of an insurance
volves
storage agreemеnt
in a
allocation
agreed
trial court
with defend
of that
on bailee’s
the effect
Accordingly,
denied
ants’ contention.
it
acts and
allegedly negligent
partial summary judg
Dresser’s motion for
omissions.
granted
ment and
defendants’ cross-motion.
was intend
Magcobar,
predeces-
It concluded
In October
that,
both
(Dresser), con-
ed for the benefit of
sor of Dresser
Industries
Additionally,
par-
Specifically,
Foss filed
defendant
a third
Dresser claimed
design,
ty complaint against
allеged
inspection
Foss
that it
construction and
I.N.A.
it,
poli-
under Dresser’s
made to
and also
additional insured
hold
modifications
an
cy
to a
on
failure as
therefore entitled
defense
relied
defendants’
warehousemen
and was
place
in the event it was found
furnish a safe
to store
barite.
to indemnification
liable.
it
assuming
negligence,
ly undertaking
defendants’
duty
provide
full in-
of satisfying Dresser’s
the effect
had
surance
for the mutual
benefit
Examining
claims.
present
parties.6
question prеsented
by the
opposite
come to the
con-
paragraph
bar is
case at
whether
5 consti-
clusion.3
an
tuted such
insur-
ance for
benefit of both contracting
The contract
issue in this case
*3
thus
parties,
indemnifying defendants from
а bailment between Dresser’s
created
liability for
alleged
failure to exercise
bailor,
predecessor
as
predecessor,
reasonable care.
Terminals,
Normally,
as bailee.
a
any
injury
is liable for
loss or
to the
bаilee
view,
In our
language
para
the
goods
by
caused
his failure to exer
bailed
graph 5 is clear
unambiguous.
We do
of care of
degree
reasonably
cise the
a
it
to
not think
reasonable
infer that
the
Ordinarily,
careful ownеr.
defendants
coverage was meant
cover
to
the defend
ground
damage
be liable for
to
the
ants for their own negligence. Under the
by
neglig
which was caused
their own
barite
agreement, Magcobar
terms
was re
damage
for
ence,4 but not
unattributable
sponsible
securing
for
its own insurance.
their fault.
to
speak
provision
does not
to
ques
the
recognized, however,
We have
by
tion of losses caused
defendants’ own
may
by
be
general
the
rule
modified
a
that
nеgligence,
and had the
intended
the
agreement
between
contractual
the
absolve
bailee from such liability,
Thus, liability can be allocated as
parties.5
provided.
explicitly
could have
so
long
so
parties see fit
as the contractual
the
agree
We
with the substantial au
par
is not unconscionable. The
provision
thority requiring
provisions
that
exempting
provide by express
that
can also
terms
ties
party
liability
a
from
for the
procuring
party’s
for
full
own
рarty
is
one
clearly
parties.
negligence
benefit
must be
set
insurance for the
of both
forth.7 For
case,
party
responsi
public
such a
becomes
policy,
In
that
reasons
courts have refused
exempt
for the total risk of loss
affirmative-
liability
ble
the bailee from
when the
given
meaning
See, e.g.,
be
of a
the words
6.
Monsanto Chemical Co. v. Ameri
question of
Co.,
428,
contract
is a
law. A
G Const.
&
(Mo.
can Bitumuls
249 S.W.2d
431
Co.,
Inc.,
Logging Co.,
547
Inc. v. Reid Brothers
court,
1952).
relying
There the
on extrinsic
1207,
(Alaskа 1976);
P.2d
1212
Bank
National
evidence,
construed
a contractual
Alaska, Inc.,
of Alaska v.
546 P.2d
J.B.L.&K.
concerning
preclude
negligence
insurance to
a
579,
Thus,
(Alaska 1976).
586
in a case such
bailee,
brought by
against
a
his
action
bailor
this,
genuine
as
where there exists no
issue of
holding
under
circumstances
fact,
are not
material
limited
case,
the insurance was for
of that
questioned
court’s construction
contract
parties.
mutual benefit of the
The clause in
language.
question specified
that Monsanto
in
stocks of
surance
for “all
materials”
Rockman,
1351,
504
4. Graham v.
P.2d
1354
which were bailed. The
did not
(Alaska 1972);
Upholstery
Barlow
& Furniture
specify that
would be
for Mon
900,
Emmel,
1975);
(Utah
P.2d
Co. v.
533
901
here.
santo’s “own”
We find that
Warehouse,
Lincoln
v. M & H
14
Grain Cо.
distinguishable
controlling.
case to be
not
275,
100,
Cal.App.3d
Cal.Rptr.
(Cal.App.
92
102
1971);
Clayton
Summy
Newman v.
F.
133
States,
1187,
Howey
7. See
v. United
481 F.2d
465,
(2d
1942);
F.2d
467
8 C.J.S. Bailments
Cir.
(9th
Airlines,
1973);
Cir.
1192
Northwest
Inc.
Alaska,
(1962).
damage
27
once
§
loss or
Airlines, Inc.,
(9th
F.2d
v. Alaska
351
253
Cir.
shown,
property
is
bailed
shifts
burden
1965);
Sugar
Corp.
California & Hawaiian
Ref.
explain
Burgess
to the bailee
cause.
County
Ship Channel
v. Harris
Houston
Nav.
Hancock,
(Alaska
Const. Co. v.
efit both each agreemеnt, The mu- property. storage in the 5 of the “rea- graph insurable interest construed,” losses sonably to include due tual benefit scope amount set. was reflected rental within appellee’s *5 pay appellees only obligation $250.00 was to obtain insurance. appellant’s appellees had obtained Therefore, rent. If monthly I the decision of would affirm insurance, premium all-risk court. per It seems month. been $471.33 the rent to me to conclude that
reasonable appellant, rather
was so low because the set for ob- appellees, was
than the insurance.
taining to cover
The effect losses, those which resulted from all HORUTZ, Appellant, Mary Frances ra- appellees. I find the majority unpersuasive. tionale of the to be Jr., HORUTZ, Appellee. Michael If to a have an parties two contract each сontracts interest one of them insurable No. 2615. insurance, the likely intent Alaska. Supreme Court will parties provided is that forms of loss. Prudent business cover all 28, 1977. Feb. mitigates against conclusion judgment pay premiums should that both majority property.
insure the same says to a
opinion simply spell the for- should out in detail ap- It
mer if that their intent. result did, particularly when
pears to me that storage agreement is viewed it must
light appellees, most favorable Magcobar. it was drafted
be because reasoning in Co. Monsanto Chemical Bitumuls
v. American S.W.2d
(Mo.1952), issue. I persuasive on this