218 Pa. Super. 193 | Pa. Super. Ct. | 1971
Concurrence Opinion
Concurring Opinion by
This case involves the construction and application of a contractor’s liability insurance policy containing an Exclusion h(3) clause, excluding coverage for damage or injury “to property in the care, custody or control of the Insured or property as to which the Insured for any purpose is exercising physical control. . . .” The policy was issued by The Northern Insurance Company, Inc., appellant. Both parties entered motions for summary judgment on essentially undisputed facts. I concur in the affirmance of the order of the lower court, which entered summary judgment for the appellee.
The insured, McCreary, was the subcontractor engaged by the general contractor to install the roofing material on a steel deck forming the roof of a new building in Erie, Pennsylvania. In preparing to do
A similar factual situation was before us in Cohen v. Keystone Mutual Casualty Co., 151 Pa. Superior Ct. 211, 30 A. 2d 203 (1943). In that case the insured, also a subcontractor, while engaged in demolition work, damaged the roof and first floor of an adjoining building, while transporting debris across its roof with the permission of the general contractor. We held in that case that a similar exclusionary clause did not apply since it was clear that, although the contractor permitted the subcontractor to use the damaged roof, the contract between the owner and the general contractor contained a provision that the demolition work was to be conducted so that it would not interfere with the contractor’s work in the damaged area, thus indicating the exclusion of the insured from the damaged first floor and the insured’s lack of care, custody, and control thereof. In the present case, there is no such express exclusion but rather there is an implied necessary use of the damaged steel decking to transport the material. Although the facts were inapposite in the Cohen case, nevertheless we held that control is the key word and that that control has to be exclusive before the exclusion clause is applicable. Apropos of that principle President Judge Rhodes, speaking for the Court,
Northern claims denial of coverage under two other exclusion clauses, but these contentions are also without merit.
Clause (h)(2) excluded liability for damages to any property being used by the insured. Following the same interpretative ruling previously expressed, I interpret “used” to mean in the performance of the actual work, and not as a means of getting to the site of the work or of transferring materials thereto.
Clause (a) excludes any liability assumed by the insured under any contract or agreement. Since Mc-Creary’s liability was incurred through its negligence, not by contract or agreement, the clause is inapplicáble. Moreover, especially where the insurance company is informed of the claim prior to its settlement, the insured does not jeopardize its coverage or cause the latter exclusion clause to become operative. Murphy & Co. v. Manufacturers’ Casualty Company, 89 Pa. Superior Ct. 281 (1926).
Therefore, I respectfully concur in the order of affirmance.
Lead Opinion
Opinion
Judgment affirmed.
Dissenting Opinion
Dissenting Opinion by
I dissent on the basis that insured was exercising physical control of the steel deck while installing the roofing material on it.