297 N.W. 843 | Minn. | 1941
Plaintiff, a corporation, was engaged up to 1937 in the business of installing electricity in buildings and had carried public liability insurance with the defendant Employers Mutual Indemnity Corporation for 1935-1936. Defendant issued to plaintiff a like policy May 15, 1937, entitled Manufacturers' and Contractors' Policy, insuring plaintiff against loss for one year from and after said date, the policy being numbered 3,310,165. Thereafter, in June, 1937, defendant Employers Mutual Liability Insurance Company took over the policies and insurance contracts theretofore issued by the first named defendant. So the Employers Mutual Liability Insurance Company will be hereinafter referred to as the insurer, plaintiff as the insured, and the policy numbered 3,310,165 as the policy. In August, 1937, the insured embarked in a new line of business, namely, the construction of rural electric transmission lines for coöperative corporations, for which funds were furnished by the government under the auspices of the Rural Electrification Administration, and on the 12th of said month the *291 insured entered a contract for the construction of such transmission line in Dakota county with the Dakota County Electric Co-operative; and on August 18, 1937, a similar contract with the Fillmore County Coöperative Electric Association to construct an electric transmission line in the counties of Fillmore and Winona. The two contracts the insured made with said coöperatives conformed to the requirements of the administrator of the federal Rural Electrification Administration. The insured received a letter, dated August 12, 1937, from the said administrator, stating:
"Part II, Section 4 of the proposed Construction Contract between The Dakota County Electric Cooperative, Farmington, Minn., and your corporation, requires that you maintain adequate workmen's compensation insurance, public liability insurance in limits of $25/50,000 against bodily injuries or wrongful death and $10,000 against property damage, resulting from the construction of the project and the operation of owned or hired motor vehicles used in connection with the project.
"We require the submission of duplicate original policies for our examination to be retained in our files. We, therefore, request that you send them to us at the earliest possible moment."
The insured exhibited this letter to the insurer and asked for coverage. No information was given as to the terms of the insured's contract with the Dakota County Electric Co-operative. Nor was that contract or the contract with the Fillmore county coöperative ever shown to the insurer. The insurer sent to the insured riders to be attached to the policy, reading:
"The limits and rates for bodily injury liability in connection with operations for the Dakota County Electric Co-operative, Farmington, Minnesota, Job Minnesota 65 Dakota [County], being done through the Rural Electrification Administration shall be:
"Limit One Person $25,000; Limit One Accident $50,000 * * *"
A like rider was obtained and attached to the policy increasing bodily injury liability in the same amounts in connection with *292 operations for the Fillmore county coöperative. Each of these riders by its terms became effective as of August 17, 1937. Later, and effective as of September 28, 1937, this rider was executed and attached to the policy, reading:
"Add: Minnesota
3448 Electric light or power line construction —
N. P. D. with Electric Light or Power Companies
Cov A Cov B If Any 1.056 .60
Property damage limits are increased to $10,000 each accident; $25,000 aggregate, to apply on the operations for the Fillmore County Electric Cooperative Association, Preston, Minnesota, and the Dakota County Electric Co-operative, Farmington, Minnesota. The following rates apply: * * *"
The insured received and attached said three riders to the policy. A copy of the policy and the three riders and also a copy of the insured's workmen's compensation policy were forwarded to the Rural Electrification Administration at Washington, D.C. October 12, 1937, with a letter from the insured calling attention to the enclosures and ending with these words: "We trust that this will complete your files, and if there is any further information you desire please advise us." Nothing further was thereafter heard from the Rural Electrification Administration.
In constructing the Dakota county line the insured wrongfully and unlawfully cut some trees on land owned by Dorothy Deaver, and she sued the insured for treble damages for willful trespass. The insured settled the suit without ever having notified the insurer thereof or requesting it to defend. It is plain that under the terms of the policy there is no right of recovery for the Deaver loss. In the construction of the Fillmore county electric transmission line, trees were cut by the insured on the land of one Lawrenz, and Lawrenz sued the insured to recover treble damages for willful trespass. The defense of that suit was properly tendered the insurer, but it declined on the ground, among others, that *293
the policy did not cover willful trespass. Lawrenz recovered treble damages. The insured appealed, but this court affirmed. Lawrenz v. Langford Elec. Co. Inc.
The assignments of error in this court are reduced to two: (1) That the court erred in concluding that the evidence did not justify a reformation of the policy; (2) that the court erred in construing the policy as written so as to deny recovery.
On the first proposition it must be kept in mind that to warrant reformation the evidence must be clear, persuasive, and convincing. Hartigan v. Norwich Union Ind. Co.
The insurer urges that this suit was brought, pleaded, and tried on the theory that reformation was absolutely necessary in order to recover, and the insured should not now be allowed to take the position that the policy is open to construction so as to cover the loss sustained in the Lawrenz litigation. We think this point too technical. If the policy with riders attached fairly and reasonably construed covers willful trespass, recovery should be had even though the insured failed in the effort at reformation. The coverage of the policy is "(A) Bodily Injury Liability" — not here involved — and "(B) Property Damage Liability," wherein the insurer agrees:
"To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the operations hereinafter defined."
Operations are thus defined:
"(a) The ownership, maintenance, occupation, or use of any premises owned, leased, or rented by the named insured and used in the named insured's business, and the use of such part of any other premises as the named insured may occupy temporarily for the sole purpose of carrying out a contract for the performance of work for another.
"(b) The operations of any employee of the named insured while engaged in the performance of duties which are incidental to the named insured's business."
As to "Exclusions," the provisions are:
"This policy does not apply: * * * (i) under coverage B, to property owned by, leased to, rented to, hired by, or in charge of the insured or any employee of the insured;" *295
Then, under Limits of Liability, is this:
"The limit of property damage liability expressed in the declarations as applicable to 'aggregate' is the total limit of the company's liability for all damages arising out of injury to or destruction of property, including the loss of use thereof, caused by all accidents during the policy period."
The coverage A — Bodily Injury Liability — is exactly in the same language as coverage B — Property Damage Liability — viz., "to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages * * * caused by accident and arising out of the operations hereinafter defined."
One of the undertakings of the insurer was to:
"(a) defend in his name and behalf any suit against the insured alleging such injury or destruction and seeking damages on account thereof, even if such suit is groundless, false, or fraudulent; but the company shall have the right to make such investigation, negotiation, and settlement of any claim or suit as may be deemed expedient by the company."
The insured insists that under Minnesota Elec. Distributing Co. v. U.S. F. G. Co.
The insured cites cases involving bodily injury liability, and contends that the language of the insuring clause being the same in both, viz., of liability and imposed by law for damages "caused by accident and arising out of the operations hereinafter defined," the willful trespass may from the standpoint of Lawrenz be considered an accident. It is to be noted that the bodily injury involved in those cases was sustained upon the premises of the insured by an invitee or one not wrongfully there. Ohio Cas. Ins. Co. v. Welfare *297
Finance Co. (8 Cir.)
We do not deem it needful to determine whether or not under the property insurance clause the damage or destruction be considered as caused by or resulting from an accident in respect to the owner of the property or in respect to the one doing the damage or destruction. We think the policy does not cover intentional willful trespass of the insured. The insured had an easement over Lawrenz's farm whereon it could lawfully install the electric transmission line. It is readily conceivable that in so doing property adjacent to the easement could accidentally be injured or destroyed, and no doubt the policy affords coverage for loss through such accidental damage. But in the Lawrenz suit this court said [
"The record discloses ample evidence upon which the jury could find that not only were the servants and agents of the Langford company informed by plaintiff that no tree was to be cut but that likewise they were informed and directed to go to Mr. Blanchard, who represented the association, and that he too distinctly told them that no trees must be cut. The Langford company went ahead and did just the opposite in spite of the notice so given, relying perhaps upon its contract with the association [the Fillmore coöperative]."
Under 2 Mason Minn. St. 1927, § 9585, accidental injury or destruction of trees does not give rise to treble damages. It is only the willful and intentional cutting of these trees by direct authority of the insured that warranted the verdict that was rendered. The trees cut were not even near the easement granted for the *298 work the insured was doing. A different situation is disclosed in the cases above cited, and others, where public liability policy issued to cover loss for bodily injury caused by accident to one operating a public place like a theater or place of amusement. Coverage there extends to unprovoked assaults committed upon an invitee by an agent or servant in charge. But of course such assault if committed away from the place of the insured and not within the scope of the agent's or servant's duties would not be covered. We think in the case at bar the exclusionary provisions above referred to did not extend the coverage of this policy to the place where the insured wrongfully, intentionally, and willfully cut and destroyed Mr. Lawrenz's trees.
The order is affirmed.